Possession Order but tenants' changeover causes problem

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  • Possession Order but tenants' changeover causes problem

    As the thread says this is a very ambiguous situation.A client of mine who I deal with(she's a private landlord) has contacted me with the following:She has just gained a court order for pocession((without a defence)((perodic tenancy)) and when she went to the property to obviously regain her property back she found the following:

    1) The tenancy has changed hands 4 times in the last 2 years(without notice(sublet)) the person who was on the AST was the person who she issued the S21 notice too,who actually went back to France in Jan 2004.

    2) Because there was no defence she got pocession.The problem now is that the person in the property who has a signed AST(14/05/2006) has now taken legal action under the "Freedowm from Harrassment Act(1997)s1& Protection from Eviction Act(1977).

    Obviously she will now have to answer to the courts unless the "tolerated trespasser" drops any legal action.I did suggest that she "pays him"off in order to "save to costs" as I can see this going all the way to theCOA.
    Disclaimer:I have over 30 years experience in housing(both social and private) as an EHO and Building Surveyor.I am also a certified expert witness having spent the last 15years working in housing litigation.The advice I give is from experience in working for various Local Authorities and how the law is interpretated.Housing Law is a minefield and is continually being amended if in any doubt you should consult a solicitor or someone of equal legal standing.

  • #2
    What exactly do the conditions of the AST stipulate about subletting?

    Clause 1 19 of our AST states:-

    Not to assign sublet, charge or part with or share possession or occupation of the Property (but see clause 4.1 below.
    4.1 The tenant cannot normally end this Agreement before the end of the Term. However, after the first three months of the Term, if the Tenant can find a suitable alternative tenant, and provided this alternative tenant is acceptable to the Landlord (the Landlord's approval not to be unreasonably withheld) the Teant may give notice to end the tenancy on a date at least one month from the date that such approval is given by the Landlord. On the expiry of such notice, provided that the Tenant pays to the Landlord the reasonable expenses reasonably incurred by the Landlord in granting any new tenancy to the alternative tenant, the tenancy shall end.
    Was the tenancy sublet in the period of the initial fixed term?

    From whom was your client landlord accepting rent? I am wondering to what extent the landlord's position would be prejudiced if she was receiving rent directly from the sub tenants. By accepting rent directly from the sub-tenant then is there not a possibility that the landlord created an AST for that sub tenant albeit one with an undocumented tenancy agreement.

    If indeed there is a possibility that an unwritten AST exists between the landlord and the alleged subtenant then this would seem to reinforce the tenants allegations of harassment and illegal eviction.

    If the rent has been paid by the original tenant then I am wondering if the sub-tenant could be advised that he or she has a case against the original tenant for damages arising from a tenancy that was in breach of the AST.

    I am wondering therefore if the original tenant be cited as a co-defendant in any proceeding against the landlord from the sub-tenant.

    Wonder also if the situation here is similar to that in the thread where we discussed an Agent who granted an AST against the landlord's instructions but upheld the AST to be valid.
    Vic - wicked landlord
    Any advice or suggestions given in my posts are intended for guidance only and not a substitute for completing full searches on this forum, having regard to the advice of others, or seeking appropriate professional opinion.
    Without Plain English Codes of Practice and easy to complete Prescribed Forms the current law is too complex and is thus neither fair to good tenants nor good landlords.

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    • #3
      What I suspect has gone on here is:-

      1. Original tenant has left, assigned tenancy to somebody else who in turn has assigned tenancy to someone else and so on.
      2. The landlord has continued to accept rent not knowing that it is not now the original tenant who is paying this rent (and where applicable, mesne profits)
      3. The landlord has not created another tenancy because of the misconception at 2 above and the written AST of May 2006 is not a proper agreement because the landlord never signed or ratified it.

      As long as the above are true - the landlord will succeed in evicting whoever is occupation now and that person should look to the original tenant for redress. I believe the landlord can continue to accept mesne profits from the current occupier but to be absolutely clear, each receipt should be endorsed "mesne profits from tolerated trespasser".

      I wonder why the current occupier (notice I do not use the word tenant) failed to file a defence - possible excuse could be that summons was in name of original tenant perhaps???

      Comment


      • #4
        David, would that not be subletting rather than assignment?
        Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.

        Comment


        • #5
          Thanks for the replies.I suspect what has happened here is that the original tenant has continuously sublet the tenancy over the last couple of years and had the rent paid into his account by the sub-tenants then he has then paid the landlord keeping the profit for himself.When I went over some of the paperwork passed to me by my client I noticed some abnormalies.The original AST was for a sum of rent of £550 per calander month but when my client was showed the AST by the the "tolerated tresspasser" that had now risen to £900 per month.I have a meeting with her next week to discuss the next step so if anyone has any idea's(legal ones") I'd be grateful.I must admit in over 30 years of working in housing I've never come across this in the private sector,known it to happen lot's of times in LA but not the way it's been worked here.
          Disclaimer:I have over 30 years experience in housing(both social and private) as an EHO and Building Surveyor.I am also a certified expert witness having spent the last 15years working in housing litigation.The advice I give is from experience in working for various Local Authorities and how the law is interpretated.Housing Law is a minefield and is continually being amended if in any doubt you should consult a solicitor or someone of equal legal standing.

          Comment


          • #6
            Surely if the landlord has possession he can now apply to get the bailiffs to remove any people that shouldn't be there. He's accepted no rent directly from the "tolerated trespasser" and only has(d) a legal contract with the tenant.

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