ending a Tenancy at will

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    ending a Tenancy at will

    Dear All,

    I would like to know the procedure (the various forms etc) for ending a tenancy-at-will.
    I believe with a AST the steps are:

    [during fixed period]
    1. issue section 8 correctly (if there is some kind of breach)
    2. send N5, N119 after expiry of section 8.
    3. Apply for bailiffs after possession date (form???).

    [after fixed period]
    1. Section 21(correct expiry date) (or section 8 as above)
    2. NB5
    3. Apply for bailiffs after possession date (form???)

    But what about a tenancy-at-will? What above steps can be by-passed (if any) when using this type of tenancy that has only be running for 3 months? I have tried to look it up online with no luck - I don't think this type of tenancy is used much. This is for a residential tenancy.

    Thanks

    #2
    Good question - I can remember asking this on here I think in 2010 when Jeffrey (remember him?) said there was no such thing.

    This phrase is often used by auction houses with a property for sale and referring to a tenancy where there is no paperwork or a 'regulated tenancy' which probably means the property has a sitting tenant.

    If you are buying proceed with caution unless you have money to burn. If the tenant does not want to leave then there is no legal way to remove him/her.



    Freedom at the point of zero............

    Comment


      #3
      Originally posted by Interlaken View Post
      If the tenant does not want to leave then there is no legal way to remove him/her.
      thanks for the reply Interlaken.

      No legal way? Oh dear –

      this tenancy-at-will was setup by a solicitor! The whole idea was so it would be easy to remove the tenant, so he said.

      This is not your usual tenant landlord setup: A couple was divorcing, one went into the second house which was a buy-to-let and lived in that house. A battle ensued (for 5 years) – in the end one side bought the other side out.

      The side that was bought out was given a tenancy-at-will to remain in the buy-to-let (until a certain date), which was also attached to a court order specifying a date to move out.

      Now they don’t want to move out.

      You would have thought with systems such as an AST where there is a procedure of notice, the point of a tenancy at will, to be different from an AST, would require no notice but you could apply directly to the court for a possession order – if not what’s the point of having something different called tenancy-at-will?

      How does one end it? What was that solicitor up to? (no we don't want to pay him to find out).

      Comment


        #4
        Originally posted by gardens View Post
        The side that was bought out was given a tenancy-at-will to remain in the buy-to-let (until a certain date), which was also attached to a court order specifying a date to move out.
        From what you just said it sounds like the court has already ordered the 'tenant' to give up possession on a certain date.

        That being the case, if the date has passed, then why can't you apply for a warrant of possession to enforce the order. That's what you'd do if the court ordered possession for a Section 21 notice and the tenant didn't obey.

        He is now in breach of an order that he turn over possession, the next step would normally be enforcing that order, why would you need another one?

        The court has made its judgement, now enforce it

        http://hmctsformfinder.justice.gov.u...s/n325-eng.pdf - Fill in that form and file it with the county court dealing with the location of the property, pay the fee (£110 I think), and if your order is valid the bailiffs will execute it.
        I'm not a lawyer, what I say is the truth as I understand it. I offer no guarantee except good intentions.

        Comment


          #5
          Well, you're going to have to get some prof legal advice sometime if only to apply to Court to enforce the Court ordered departure date. If there is a Court repo order in place, can you not move directly to Bailiffs?

          Comment


            #6
            Originally posted by monkeysee View Post
            From what you just said it sounds like the court has already ordered the 'tenant' to give up possession on a certain date.
            thanks the reply monkeysee.

            sorry i meant consent order not court order (if that makes a difference).

            Unfortunately the story is more complicated - during the buy-out the mortgage company was not happy with the tenancy-at-will, they required an AST. It was necessary to provide this. This was done without a solicitor to save costs. So now probably the line about when to vacate is invalid as it has been overwritten by the new AST? So now we fall in the fixed period with no fast way out.

            Comment


              #7
              I'd never heard of one of those before but a quick google search found this:

              http://www.netlawman.co.uk/ia/breach-of-consent-order

              Sounds like what you have is basically a court order (in that it is a binding agreement endorsed by the court) but requires a slightly different enforcement process.

              Based on that article it seems you need a form D11.

              Re your added paragraph about the AST:

              Whether an AST can override an order of the court I don't know, my first instinct would be that it cant so proceed on the basis of the consent order. That being said you need specialist advice, I have no legal expertise at all, I may be talking ballearics. It depends on all sorts of things like if the AST was supplementary to the consent order, or superceded it, etc. Family law is complicated - consult a solicitor.
              I'm not a lawyer, what I say is the truth as I understand it. I offer no guarantee except good intentions.

              Comment


                #8
                Originally posted by mariner View Post
                Well, you're going to have to get some prof legal advice sometime if only to apply to Court to enforce the Court ordered departure date. If there is a Court repo order in place, can you not move directly to Bailiffs?
                thanks for the reply mariner - i was hoping you guys were just as smart. - I'm a big fan of DIY but then I read about counter claims. Lets see how far we can go without them - don't let me fall.

                Comment


                  #9
                  Perhaps the simplest thing to do is look at the dates.

                  When did the consent order say the tenant had to give up possession, and when did the AST end.

                  If one is after the other then that should clearly take precedence, then proceed in the relevant manner, Sec 21 or 8 if the AST prevails, and a D11 if it's the consent order.
                  I'm not a lawyer, what I say is the truth as I understand it. I offer no guarantee except good intentions.

                  Comment


                    #10
                    "a tenancy-at-will to remain in the buy-to-let (until a certain date)"

                    The above is a contradiction in terms. The essence of a tenancy at will is that it may be terminated by either party at will.

                    Comment


                      #11
                      Originally posted by Lawcruncher View Post
                      "a tenancy-at-will to remain in the buy-to-let (until a certain date)"

                      The above is a contradiction in terms. The essence of a tenancy at will is that it may be terminated by either party at will.
                      HI Lawcruncher,
                      Thanks for the reply – I will try to get the relevant line from the consent order. I believe we may have voided the power offered by the consent order when the AST was issued to replace the T.A.W.

                      You say a T.A.W may be terminated at any point by any party – I’m happy to believe that a tenant could just walk out the front door, I’m not convinced a landlord could just change the locks – there must be a procedure? I’m looking for this procedure/form. I’m not comfortable do anything without some kind of procession order – how do I get one from a tenancy-at-will.

                      (The actual tenancy at will contained no exit date)

                      Comment


                        #12
                        Try a Section 21 - I can't see how else you can approach it.



                        Freedom at the point of zero............

                        Comment


                          #13
                          OK here is the wording for the consent order:

                          The first defendant shall deliver vacant possession of .. on or before …. Until such time, the first defendant shall occupy the property in accordance with the terms of the tenancy at will referred to

                          Now im worried because the TAW has been replaced by a AST which gives a 6month fixed period (which means you can’t remove a person unless in breach) and the date to leave on the consent falls inside this 6month period.

                          Comment


                            #14
                            Originally posted by Interlaken View Post
                            Try a Section 21 - I can't see how else you can approach it.
                            thanks for the reply

                            Yes - I will use a section 21 (if left with no other option) on the AST - sadly the notice has to expire sometime in August 2014 (now add on the rest of the steps). The consent order said out on March! That could be a 6 month difference.

                            I'm hoping there is a way to use the original consent order.

                            Comment


                              #15
                              If, after he has obtained on order for possession, a property owner (whether or not there is a tenancy, and if there was a tenancy whatever kind it is) enters into any sort of tenancy agreement with the person against whom the order was made that overrides the order. (We may note in passing that section 5(1A) prevents landlords of assured tenancies who obtain possession orders from unintentionally creating a new tenancy by accepting rent after a possession order is made; the section would not be needed if it were impossible to agree a new tenancy after being granted possession. The requirement of the mortgage company to enter into an AST only confirms the low opinion I have of in-house lawyers who work for mortgage companies.

                              Comment

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