Repossession of Sublet Property

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    Repossession of Sublet Property

    1. The rented property is located in England.
    2. The tenancy is a sole tenant 12 month AST, that allows subletting, this was done via the letting agent.
    3. The tenancy started on 10/10/15.
    4. The initial fixed term was 12 months.
    5. The AST states that the rent is due monthly.
    6. The deposit is £2700 taken by the letting agent and put into their DPS account.
    7. Notice was served on the 09/08/2016 by hand, the tenant signed the notice. Repossession of the property was to be 10/10/16.
    8. No the landlord dies not live at the property.

    My situation is as follows;
    I had an ongoing relationship (4 years)with the letting agency (husband and wife owners) and when I had another property available for rent they actually asked if the husband could rent the property. I said yes that's fine if he signs the AST and pays the deposit. This was agreed and the AST was signed. It may have been naive of me but I trusted them but unbeknown to me they changed a clause on the AST to allow him to sublet. As I signed the contract I knew that I didn't have a leg to stand on so I had to wait until 2 months prior (09/08/16) to the end of the agreement before I could serve notice which I dually did.
    Since the signing of the AST, the husband and wife have since sold the agency which operates under the same name.
    When the date (10/10/16) neared the tenant said that he couldn't move out as he hadn't found anywhere to live and he has depression. I agreed to give him an extra month, which he agreed to by text. In the meantime I checked with the DPS on the deposit, they confirmed that they were not holding a deposit on that property.
    The tenant has been subletting the property but since the 10/10/16 he has not paid me rent and told me by text not to contact him or come to the house. I have visited the property and it looks like he is not living there but the whole property has been sublet. I have advised the tenants to withhold their rent and I have photos of the agreements he has given to them.

    1. Who is liable for the deposit, myself or the letting agency? The AST is on the letting agents paper.

    2. I do I get possession of my property back?

    3. I do not know where the tenant who signed the AST is staying?

    4. The tenancy has theoretically ended where do I stand with the subletters?

    #2
    I forgot to say thanks in advance for any advice given.

    Comment


      #3
      1 - If the tenancy deposit was not protected at all, your notice is not valid and you cannot proceed any further with repossession. You are liable for the protection of the deposit if you are the landlord. If the agency were contracted to protect it, you might be able to sue them for any losses. You are liable (if the tenant makes a legal claim) to return the deposit and pay a penalty for non-compliance.

      If the tenant is no longer living at the property, it may no longer be an AST and you may be able to serve notice to quit (not a s21 notice) and that doesn't depend on the deposit being protected.

      If the tenant owes two month's rent, you can serve a s8 notice with the mandatory ground 8 made out (also 10, 11 and 13). Again, the deposit protection is probably not an issue.

      2 - I would probably get professional legal assistance.

      3 - There are people finding services, but you serve all notices to the last address you have for them which is your property.

      4 - The tenancy has not ended, theoretically or otherwise. You were wrong to advise them to stop paying rent, they appear to have a valid tenancy (whether or not the agreement allows sub-letting). They owe their landlord rent. When the property is restored to your possession by bailiffs, they should remove everyone staying there.
      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
        Cheers for your thoughts JP, I am now taking legal advice, do you have any solicitors that you could recommend?

        Comment


          #5
          If your agent is a company then it can't be an AST.

          Assuming the husband and wife never lived there it can't be (may not be, legally impossible to be) an AST.

          So no deposit protection stuff, no s21, no s8.

          So, if that's the case, you need to evict your tenant: (would need NTQ, S21 having no legal effect). Having done so the occupants who have tenancy contract with agency will become your AST tenants under the terms of their agreement with agent s18(?) of Housing Act 1988. You then protect their deposit, serve PI, serve fresh new S21 etc etc. Mess.

          Best bet is get agent to get occupants out then surrender their (agent's) tenancy with you: quickest, cheapest.

          Highly likely agent, judge & most solicitors won't understand this.
          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
            That is my issue, firstly the husband did live there for 13 months, secondly if I did get the subletters to surrender their tenancy to me them I would knowingly be changing the status of the property to a HMO. Which then would open up a whole can of worms?

            Comment


              #7
              If the property is an HMO because of the number of people living there, that can of worms is already open.
              But it does give you some leverage because the person/people responsible for the HMO are the people managing it - which is your tenants, not you.

              Have nothing to do with the people living there, they are nothing to do with you.

              Personally, at this point, I would consider alerting the council to the (presumably) non-compliant HMO.
              Normally, I'd avoid that option, but I think it might actually help here.

              First, I'd threaten the tenant with that course of action.
              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

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