Help! Have I inadvertently got into an AST, at my holiday letting?

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    Help! Have I inadvertently got into an AST, at my holiday letting?

    Sorry for long initial message but I thought it was important to add the details that I thought I might get asked...

    have a house in Brighton which satisfies all of the conditions for being a holiday let; the purpose for which the property is always used. As it was a low season, I agreed to let the property to a single tenant, whom was relocating to Brighton and was looking for something temporary, for the few months that it would take her to find a permanent house.

    She said that she didn't want to spend more than £2,400pcm; and I agreed to let her the property, at this rate; as long as she was happy to vacate, for the bookings that had already been confirmed. She was agreeable to this, as it was short notice (five days, before her arranged move-out date, from her current let).

    Due to the need for her to leave the accomodate for the existing bookings, I broke the rate down from a monthly, to a weekly & daily amount. She asked if I could provide a cleaner, as she always employed one in the longer term rentals. I agreed to include this, and gave her prices, if is she wanted the bedding laundered, during the stay. The initial period was 14 days, for which she paid the rent in advance, plus a £300 security deposit.

    She vacated, as agreed; and to help her out; I suggested that she leave, the positions that she wouldn't need in-between times. As I had tenants in the property for two weeks, she rented other temporary holiday let accommodation, and returned, when the cottage became available again; whereby she moved back in for five days; again paying the rent in advance.

    She decided that instead of moving around, she would use my house as her base; and for the short periods that she would need to move out; she would leave all of her stuff, apart from what she needed for a couple of days; and would check into a hotel whilst the cottage was booked.

    She paid me an additional £250 to secure the two weeks at the beginning of April and £100 had previously been handed over to secure the additional dates in March. After she left the second time, there were a couple of minor bits that I wasn't happy with; such as some marks on the bedding, and the next tenants reported that they thought someone had been smoking in the property.

    There had been a couple of previous complaints, raised on her behalf; that she felt she was being unnecessarily pursued for rent, before it became due; and responded to an email that I sent to her about the above, vehemently denying that she had been smoking in the property, and explained that she suffered from 'debilitating C-PTSD', which was being exacerbated by the instability of keep having to vacate; which was being made worse, by the way in which I was dealing with her, and requested that I do not contact her again over the weekend, because she was dealing with distressing family issues; followed by an angry email that if I wasn't prepared to apologise and desist; that we part company at the end of the next agreed period, and promised to take any action at her disposal; if I treated her unfairly, or made any unjustified deductions.

    I decided not to allow her to move back in, and sent her an email around 2 PM, to say that I wasn't prepared for her to move back in the property, that day; however, she returned to the cottage around check-in time; when I wasn't in the property; and the cleaner let her in (as all of her stuff was in there).

    I returned to find her inside the property, then she persuaded me that she would rectify any minor issues; but when my husband came in, he told her that she had to get out immediately; she refused and was having a panic attack; but my husband was insistent, and thought he could make her leave if he threw her stuff out onto the street. At which point she got into a right state, and called the police; who attended.

    I was hoping the police would remove her, if I repaid her the majority, of the monies I was holding, inc that week, plus the £250 holding deposit for the the future dates, but retained the £300 damage deposit; so transferred the funds into her account.

    The police arrived and eventually; after it couldn't be confirmed that the funds had reached her account; the police suggested that myself and my husband vacate the property, as the let was only for five days, and we would be able to sue her, if she didn't pay the rent back; so we didn't need to worry.

    Now my worst nightmare has happened: because the police allowed her to stay, she is now claiming that he has rights under an AST, because our agreement doesn't fall under 'excluded tenancies, for holiday lets', as she has satisfied the criteria for being an assured short hold tenant.

    The property is a self-contained house, and she has changed the key code to the door; plus the chub lock, and is telling me that we can't force entry without a court order!!!

    As well as this, she is claiming that the money I paid into her bank account, isn't a non-payment of the rent; and accused me of only putting it in, to avoid the police arresting my husband; and that she doesn't believe the rent is due; but is saying that she will continue to pay it, at a fair rate (whatever that means?!?!), whilst resident at the property.

    I didn't think that you needed a court order to remove a licensee, from a holiday; but now I need to break in. Do I need a bailiff, and how quickly can I get back in there to remove her; or will the Police assist as its a holiday let,, and so presumably she doesn't have any legal right to change the locks, and stay there?

    I have a pre-arranged let on Friday; when she was supposed to be out; and so, is it possible to remove her on Friday; as she initially agreed to move out for the weekend, returning on the Sunday night?

    She is now not responding, apart from to say that I will need to obtain a court order before I can evict her, but I thought the whole point of the license agreement, was that I didn't need one?

    I'm at my wits end with this, and I'm really hoping to get her out by Friday; does anyone know whether this is realistic; and presuming she is a licensee; can I force entry if she overstays on Friday?

    Any advice would be greatly appreciated

    Thank you,

    Lola




    Sent from my iPhone

    #2
    Something tells me she may have done this before.

    Do not accept any more money from her. You may have initiated an AST by taking further funds after her 1st period at the property.

    When she first became difficult you should have refused a further 'holiday let' but hindsight is a wonderful thing! I think the Friday deadline is unrealistic.

    Is she really buying a property or was this all fakery? Do you know which agent and can you check up on the situation?

    I'm sure others will have more insight into this one.



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

    Comment


      #3
      It was never a holiday let (the tenant was looking for temporary accommodation, not a holiday).
      Properties normally used for holiday lets can be used for ASTs as well - the "normal" use of the property doesn't mean much (it might have some tax implications).

      However, because of the interruptions in the stay (which the tenant has clearly accepted and honoured), it may not be an AST, because there is no exclusive occupation.
      It would need a court hearing to determine that.
      So I think the answer is yes, you need a court order to remove her legally.

      Regardless of the state of the tenancy (calling it a licence doesn't really change anything), you can't just throw the tenant out.
      While it is tempting to think you can break into your own property and physically remove her, it would be very risky legally - you would be risking a prison sentence.
      You can't throw her stuff into the street (that's probably a criminal offence in itself, I'm amazed the police didn't arrest your husband).
      If you continue to contact her or threaten her, she will be building a good case for harassment.

      Her mental condition isn't relevant.
      The transfer of funds is slightly confusing, but rent is only one element of a tenancy and won't, in itself, make the tenancy an AST.

      I imagine that this happens quite a lot, particularly in Brighton, where property is scarce and expensive and there are lots of holiday accommodation.
      You can probably find an experienced local solicitor to help.

      And Friday is unrealistic - a court date will be several weeks.
      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

      Comment


        #4
        The Police don't care - they will say it is nothing to do with them, so forget that idea! Usually you can evict very quickly from a holiday let I understand (more like the law on squatters than on tenants) but this is not quite a holiday let and is a very complex situation for which you need specialist advice and help. You will however have to pay accommodation costs for your guests due shortly - I suggest you find them somewhere to stay very quickly and inform them of the change
        Unshackled by the chains of idle vanity, A modest manatee, that's me

        Comment


          #5
          As you both knew fine well it was not a holiday let it was a sham agreement & is really an AST. So s21 only after 6 months, deposit protection etc etc.

          Agree bet she's done this before. Best option may be to negotiate.
          I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

          Comment


            #6
            Thank you so much for taking the time to read my problem, and respond; I'm really appreciative, and touched.

            I've been to see two different solicitors today; as per advice given; but I have to say; I left both, very unimpressed (the first couldn't even seem to take the basic details down, correctly; despite three attempts!!!); and both are quoting me £thousands, potentially; to get this resolved.

            I suspect that I might need to find better representation; but I'm not sure if I can afford to do this; and not take any rent on the property, at the same time (not being helped by the fact that we are preparing for a new baby girl in three months).

            My tenant paid some rent to me this morning, which I wasn't expecting; she has deducted the £250 that I was holding for future dates, but refunded to her, before the Police arrived; plus, the cost of the locksmith; and a couple of minor bits and pieces that I am no longer, obviously providing, which didn't leave very much. She states that she has no intention to live in the property for free. I don't get the impression that she doesn't intend to pay the rent (her luggage, clothes, shoes etc. is all, really expensive, designer stuff, and she is driving a £60k+ car). She has LLB (Hons), after her name so I am presuming she has a Law degree.

            I know that I have been advised not to take rent off of her, but would anyone be able to tell me if this would definitely detriment me in a really big way, as; as much as I want her out; not taking the £550pw(ish) rent; if she is prepared to pay it; is really going to hurt; while in addition to what a good lawyer is going to cost on top. Absolutely no disrespect meant to those who have told me about this; but because things are so tight; I just wanted to understand how serious the situation would be, before refunding her? And if the worst happens and it's turns out that she does have an AST will I be able to get this money back at the same time as the house?

            I'm sorry to be a pain but I don't suppose anyone may also be able to tell me how long I might be looking at; given the possible complexities; before I get her out; as I don't think I am going to be able to get to see another lawyer until after the bank holiday weekend, and this is stressing me out to the point; that I feel like I just want to cry all the time.

            I do apologise for another lengthy post but I just don't know what else to do at the moment...

            Thank you, guys; so much,

            Lola

            Comment


              #7
              Originally posted by LolaB View Post
              ..... She has LLB (Hons), after her name so I am presuming she has a Law degree. ..

              No: She claims to have LLB.


              I would only deal with a solicitor who is expert in landlord/tenant matters (most will be generalists who do mostly conveyancing & divorces & wills...).
              I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

              Comment


                #8
                Sorry, a quick PS... Am I able to check if she's done this before, anywhere?

                Comment


                  #9
                  It sounds to me like it might be cheapest and best to come to a harmonious agreement with this lady, to allow her to continue to live in the property paying the £550 a week, but on the understanding that it is not a permanent proposition.

                  You might not have wanted her as a tenant, but now you've got her. I don't see that going to court to evict her would be a better solution than negotiating calmly with her - perhaps with the help of an impartial third party - so that she continues in the property as long as she needs, while you continue receiving rent, without anyone getting upset.

                  Would she agree to vacate the property for the duration of the holiday bookings, do you think?

                  Comment


                    #10
                    Unfortunately, my husband was really quite offensive to her, before the police arrived (including the throwing of some of her belongings out the door, in the rain). Then he upset her even further, by telling the police that he didn't want her in the house, in case she committed suicide; given what a state she was in. obviously he wished he had and but we are both just so frustrated by this that he lost his temper. So to make matters worse; I'm really not quite sure that she will cooperate with, or talk to me at all. She has stated this already; and asked that I do not contact her, unless it is via my legal representative... Oh my God; I've got myself into a right mess here, haven't I?

                    Comment


                      #11
                      I hate people who use their qualifications after their name!

                      First of all, your tenant is probably good at this, and is happily getting cheap accommodation at your expense.
                      So its important not to get too stressed about it, this is an annoying and frustrating business problem, nothing personal.

                      On the downside its going to take quite a long time to sort out - probably months rather than weeks.
                      You are probably going to need a court hearing to get the court to agree that you can repossess your property.
                      That can take six to eight weeks in itself (it depends on how busy your local court is basically).
                      If you are successful at the first hearing (and your tenant will probably try and delay as much as possible) the court can set a date anything from (typically) 14 to 42 days afterwards as the repossession date.
                      You will have to pay for the court fees and any bailiffs. Both will cost several hundred pounds.

                      You can try and recover these fees from the tenant, but it's not a guarantee.

                      The point about accepting rent is that it confirms that there is some kind of agreement in place.
                      The tenant is living in your property and by accepting rent you are implying that you are agreeing to that in some way.
                      You are also allowing the tenant to determine the level of the rent, and that is never a good idea - the tenant should pay what you want not vice versa.
                      At this point she's winning every point, which is why you need a good lawyer.

                      You argument that it is a holiday let isn't going to wash (in my opinion) and therefore it's some other form of tenancy.
                      Knowing wha type of tenancy it is is important, because you need to issue the right notice to the tenant.
                      Because the tenant has been moving in and out, I think you have a good case that it isn't an assured shorthold tenancy (which would require a minimum of 2 month's notice before you could even request a court hearing).
                      But you're then entering legal areas I know nothing about.

                      There are companies who advertise on this website who specialise in getting tenants out of properties (again they are not cheap and your case is more complicated than usual).
                      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                      Comment


                        #12
                        Correction: 'wished he hadn't', not 'wished he had''.

                        Comment


                          #13
                          No, there is nowhere where you can check if she has done this before but if you have access to 192.com or similar you could put her name in and see what comes up.

                          You need to see about getting the court order soonest and is she actually buying a place - check that out? Designer clothes and an LLB mean naf all. Is the car really hers or is it on finance? She seems to have lot of cash. Lady, designer clothes lots of cash, flash car, Brighton = drugs or hooker possibly.



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

                          Comment


                            #14
                            You are going to prison.
                            No point in giving advice I dont think you will accept it, you will just keep on digging your own grave.
                            That is all.

                            Comment


                              #15
                              That was the first thing that my husband said, but it just doesn't seem to fit: I teach English, up to A-Level, in a good public school; and her articulation and prose are of a notable quality; and from what I am being advised on here; she seems, just as accurate with her legal knowledge. I don't know any, but would a drug-dealer, or hooker correspond in this manner??? If this were the case, would that help me get rid of her sooner?

                              She had (and still has) me convinced, that she works in Corporate Finance, for an Investment Bank, and at one point; when I was chasing her for a payment that had become due, she got quite shirty; and sent me an email, offering proof of her income, which she stated, was; in excess of £80k, as a base salary + bonus, and that she was sure, that her previous landlord, would be more than happy to provide excellent references; 'if it would put (my) mind at rest; that (I) was not dealing with some, unemployed 'oik'', that couldn't be trusted to meet her commitments, and requested that I give her a bit of space, at a difficult time; which I did; and she did meet all of the payments; although a few were a few days later than requested on the invoice. There didn't seem to be any reason to disbelieve her, and I also didn't think references were relevant anyway; so I didn't pursue this any further.

                              During one exchange, she explained that she had had some large unexpected expenses recently, and went on to make a pretty strange comment, about her 'retarded siblings, running her up a bill, for the funeral of her narcissistic mother; three times the cost of an average wedding'; and that she would be looking for a long-term let, but didn't have the £12k+ needed, to put a down a deposit, and first months rent; so I presumed she rented out property, around £4-5k per month.

                              She had mentioned to me before, that she owned a couple of investment properties, but stated she liked being a landlord and a tenant, because she moved every couple of years; when she changed projects. It all seemed to make sense, and maybe I'm just still being far too naive (or trying to delude myself, that my lovely little, family cottage, isn't being used as a crack-house or a brothel); but I just don't get the impression, from any of my dealings with her; that she's not an educated, professional; with a well-paid job...

                              I'm feeling utterly confused by the whole thing, and dumbfounded at finding myself in this situation, having rented the cottage out for over 5 years with no substantial problems... I would be horrified, if she was doing something like that, in there...

                              Comment

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