Illegal Tenant

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    Illegal Tenant

    i had a family living in one of my houses. the couple had a bust up and the female left. the tenancy was in her sole name and as such when she moved out her benefits which were being paid directly to me by the council were ceased.

    i went to the property today as i was only made aware by a letter from the council yesterday that she had moved out. on arrival, the locks had been changed and i had to call out a locksmith. when the locksmith arrive, her spouse turned up and said he was still living there and he was going to make a claim for benefits.

    as far as i am concerned, he is now an illegal tenant as his name is not on the tenancy agreement and i need to get him out of the house. where do i stand in regards to this? the tenancy was an assured shorthold tenancy which was drawn up over 2 years ago in her name and never modified.

    #2
    The tenancy agreement you have with your official tenant is no longer an AST as she is no longer living there.

    Can you advise if the official tenant gave notice to you and if you have accepted any payment off her partner?

    Please be careful as an attempt to enter the property without the tenants permission (ie the official tenant) is dangerous grounds.

    Comment


      #3
      the official tenant gave no notice and the letter from the council said they had stopped payments as the tenant had changed address on 23rd January 2012. as far as im concerned that is proof enough that she is no longer living there.

      i did not enter the premises as the spouse turned up as i was about to get the locksmith to enter. i have not accepted any payments from her partner, he told me that they had a domestic a few weeks ago and she has moved out

      Comment


        #4
        Her no longer living there does not mean the tenancy has ended.

        Indeed, as she has not given you notice, she remains liable for rent (her lack of benefits maks no difference).

        I would suggest you contact the tenant to seek notice from her (you can't make her give this or it could constitute illegal eviction). If she gives notice, once that expires the tenancy ends. You then have the choice to either evict the remaining partner (needs court order, but no notice required) or grant him a tenancy in his own name.

        If you can't get her notice, you can still evict legally, but it becomes a little more complex.

        Comment


          #5
          ok i see where you are coming from.

          there is no chance of me getting in touch with her, so will have to look into my other options as she is at least 4 months outstanding in rent from when she first took up the tenancy. so may go the section 8 route and then evict the partner afterwards.

          thanks for the advice

          Comment


            #6
            You can't use the section 8 or the section 21 route as they are in the 1988 Housing Act, which doesn't apply if she is no longer using the property as her only or primary residence.

            So, putting that to one side, please look at the tenancy agreement and let us know what terms / clauses she is breaching (probably rent related) and what the agreement says the penalty for these breaches wil be.

            Comment


              #7
              If the tenancy started 2 years ago, it's now probably periodic. Assuming the rent is paid monthly, OP should be able to end the tenancy by serving a notice to quit giving a month notice and expiring with a tenancy period.

              Obviously OP should be careful re. accepting rent from current resident as it would probably in effect grant an AST to that person.

              Comment


                #8
                Can OP confirm when orig AST started?
                Duration of fixed term?
                Rent due frequency?
                Any deposit taken? Protected? Reqd info provided to T?

                If now SPT, then both s8 & s21 repo routes are avail, or at end of fixed tern

                Comment


                  #9
                  Originally posted by jjlandlord View Post
                  If the tenancy started 2 years ago, it's now probably periodic. Assuming the rent is paid monthly, OP should be able to end the tenancy by serving a notice to quit giving a month notice and expiring with a tenancy period.

                  Obviously OP should be careful re. accepting rent from current resident as it would probably in effect grant an AST to that person.
                  You mean a S21(4)(a)? That's 2 months notice which must include 2 full tenancy periods.
                  I offer no guarantee that anything I say is correct. wysiwyg

                  Comment


                    #10
                    Originally posted by mariner View Post
                    Can OP confirm when orig AST started?
                    Duration of fixed term?
                    Rent due frequency?
                    Any deposit taken? Protected? Reqd info provided to T?

                    If now SPT, then both s8 & s21 repo routes are avail, or at end of fixed tern
                    Mariner, you seem to be suggesting this is an AST, can you clarify?

                    Originally posted by jta View Post
                    You mean a S21(4)(a)? That's 2 months notice which must include 2 full tenancy periods.
                    I don't think jjlandlord is refering to section 21 (see post #6)

                    Comment


                      #11
                      Originally posted by jta View Post
                      You mean a S21(4)(a)? That's 2 months notice which must include 2 full tenancy periods.
                      If tenancy is no longer an AST, the LL can serve an actual notice to quit with only 1 month notice (unless perhaps if agreement says otherwise)

                      Comment


                        #12
                        Originally posted by jjlandlord View Post
                        If tenancy is no longer an AST, the LL can serve an actual notice to quit with only 1 month notice (unless perhaps if agreement says otherwise)
                        I certainly think you are right jjlandlord, but it would still need a court order.

                        Comment


                          #13
                          Originally posted by napster View Post
                          as far as i am concerned, he is now an illegal tenant as his name is not on the tenancy agreement and i need to get him out of the house. where do i stand in regards to this? the tenancy was an assured shorthold tenancy which was drawn up over 2 years ago in her name and never modified.
                          The husband is not a trespasser as the tenant invited him to live there (nor is he a tenant). The tenancy between you/the wife remains in place, regardless of her having moved out, as she has not served notice to quit. You need to obtain a court order to evict the wife, your tenant - and when the bailiff executes the possession order, he will evict anyone who is living there (i.e. the husband).

                          As others have pointed out, the wife's tenancy is no longer an AST if the rental property is not the T's main home. So it may be appropriate to serve a common law notice to quit on the T (instead of a notice under Housing Act 1988, which no longer applies if it's not an AST), as the initial step in eviction procedure. You will need to check the terms of the tenancy contract.

                          Having said that, I think I'd be inclined to turn a blind eye to the fact that T has vacated; after all, who's to say she won't get back together with the husband and move back in next week. Moreover, it seems unlikely, if you serve a s.8 notice (citing grounds 8, 10 & 11) and apply for possession, that she will turn up at the court hearing to defend the application (let alone argue that HA1988 no longer applies). And if she *does* turn up, it's likely to mean that she's moved back in...

                          Note that any notice you serve on the wife must be served at the rental property.

                          Needless to say, meanwhile, do not accept rent from the husband, if you wish to avoid granting him a tenancy.

                          she is at least 4 months outstanding in rent from when she first took up the tenancy.
                          You could have served a s.8 notice including the mandatory ground 8 at least two months ago, and have been well on the way to obtaining a possession order by now. If rent is payable monthly, there must be at least two months' rent owing and unpaid in order to fulfill ground 8.

                          Comment


                            #14
                            Originally posted by westminster View Post
                            Moreover, it seems unlikely, if you serve a s.8 notice (citing grounds 8, 10 & 11) and apply for possession, that she will turn up at the court hearing to defend the application (let alone argue that HA1988 no longer applies). And if she *does* turn up, it's likely to mean that she's moved back in...
                            That's a good point and I was thinking about this in case of s.21 notice vs. notice to quit: s.21 notice period could be longer but proceedings could be simpler.

                            Comment


                              #15
                              The trouble with the NTQ route is OP would need to pay for specialist legal advice to get it right (it's not something I'd attempt to DIY, as so much could depend on what's written in the contract).

                              I'd serve both s.8/s.21 notices but go for the s.8 route first. Might be quicker, plus OP will get an order for the unpaid rent - even if he gets nowhere enforcing it, at least the T's credit record will be adversely affected (cold comfort, but I'm a believer in warning other LLs - if everybody did it then it'd weed the unreliable Ts out of the private market).

                              Comment

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