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View Full Version : Inherited subj. to 1994 tenancy- how to get possession?



Zoggthefantastic
25-01-2009, 01:05 AM
Firstly thanks in advance for any replies.

I've had a quick search and I think I'm up to speed on what I need to do but I have a few sticking points. All advice would be much appreciated.

The situation Is this:

My brother and I have been very fortunate and have inherited a house that has been converted into three flats. We inherited them from my Nan but my mother has been running the property for the last fifteen years-the building being held in trust for us. M. would like to hand over the running of the building and Brother for one reason or another would very much like to move into the ground floor flat, which is currently let. T has been there since 94/95, I can't be accurate because unfortunately M has lost tenancy agreement:rolleyes: which creates the first problem. How do I serve the correct notice without that date- I have M looking into the possibility of retrieving bank statement but i think they only keep them for six years also not really sure how much help it will be.

I think we can seek possesion under ground 1 because Nan lived in house for many years

"Ground 1 - This ground can be used where a landlord (or his spouse) has occupied the dwelling as his only or principle home at some time, and having given notice of his intention to return, now wishes to do so. Successors in title may also use this ground provided they did not purchase the dwelling."

which I beleive means we get an automatic possesion? Still have to get a court order but T can't dispute?
But without serving the notice pertaining to the correct date T can presumably ignore the notice because it won't have the correct date on.

Also to muddy waters apparently T initially paid rent fortnightly but now pays monthly. Does this have any bearing? T had a six month AST back in 1994/5 but after those first six months does it become a periodic agreement and we can end any time provided the correct notice is given? i.e don't have to cite any grounds?

So my questions are really
1. what would you learned ones do?
2. what happens if she doesn't have her agreement either? how do we go forward? what might a solicitor advise her?
3. If I do serve notice 'blind' what date should I put on it?
4. do we seek posession under condition 1 or not cite anything?

BTW I have rented out the middle flat using a good agent who has used proper contracts inventories and handled deposits etc so none of this will ever happen again!

thanks again for bearing with the long post look forward to hearing what you have to say!

Preston
25-01-2009, 11:05 AM
Hi

I think the first thing to do is to establish what kind of tenancy the tenant has.

As it began before 1996 it can only be an assured shorthold if the tenant was served with a notice under section 20 of the Housing Act 1988 telling him or her that the letting will be an AST. Do you have this notice?

If it is not an AST, it will be an ordinary assured tenancy (assuming the basic pre requesites of a tenancy are in place and provided the rent is not over £25k a year).

If you want to use ground 1, the tenant should have been given notice that the landlord may rely on this ground at some point in the future. Again, do you have any evidence of this?

Preston

Zoggthefantastic
25-01-2009, 12:24 PM
Thanks very much for swift reply.

M. informs me that tenancy is AST. However sounds like I will have to double check (asap) myself that correct paperwork has been done to make this valid. Does this make a big difference to the procedures?

Also T. would never have been informed of an intention to re-occupy so I take it that that makes that path a non starter?

jeffrey
25-01-2009, 14:27 PM
Also T. would never have been informed of an intention to re-occupy so I take it that that makes that path a non starter?
Not quite. L can use ground 1 if Notice is served pre-commencement BUT Court has jurisdiction to entertain L's Possession Application even if that was not in fact done- see the precise wording of g1 (and esp. the underlined bit, below).


Not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground or the court is of the opinion that it is just and equitable to dispense with the requirement of notice and (in either case):

(a) at some time before the beginning of the tenancy, the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them occupied the dwelling-house as his only or principal home; or

(b) the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them requires the dwelling-house as [his, his spouse’s or his civil partner's] only or principal home and neither the landlord (or, in the case of joint landlords, any one of them) nor any other person who, as landlord, derived title under the landlord who gave the notice mentioned above acquired the reversion on the tenancy for money or money’s worth.

Preston
25-01-2009, 15:55 PM
Court has jurisdiction to entertain L's Possession Application even if that was not in fact done- see the precise wording of g1 (and esp. the underlined bit, below).



Agreed. It might be interesting to explore the chances of waiver if the OP wants to.

In Bradshaw v Baldwin-Wiseman it was held that as the original letting had not been intended to be in some way temporary it was "inconceivable" that there could be a waiver. Not sure if this applies in this case, but at first glance it appears to be relevant.

Preston

PaulF
25-01-2009, 16:19 PM
As it began before 1996 it can only be an assured shorthold if the tenant was served with a notice under section 20 of the Housing Act 1988 telling him or her that the letting will be an AST. Do you have this notice?
PrestonThe date you mean is 28 February 1997 when the S.20 requirment was dispensed with.

Also on the question of Ground 1, as the OL is deceased does this not alter matters?

Zoggthefantastic
25-01-2009, 17:13 PM
to clarify, OL is not deceased, just 94 and very forward thinking about handing the property over. As i say my brother and I have been very fortunate.

Thanks again all for taking an interest

jeffrey
25-01-2009, 17:49 PM
to clarify, OL is not deceased, just 94

No, you said that you + brother inherited it; so she must be dead, surely?
Or did you merely mean that she gave it to you by Deed of Gift?

Bel
25-01-2009, 18:23 PM
The pragmatic answer is serve an s21 and see what happens (ie if tenant leaves of own accord)

Zoggthefantastic
25-01-2009, 19:07 PM
To update.

Have spoken to M. She does not have the documents given to T. she also does not have a copy of the tenancy agreement that she was using at that time. She says that she would have bought it from a stationers.

It does seem likely that it was AST (based on a different tenancy agreement from later date that seems to be a photoopy of the original that she bought!) however this cannot be confirmed.

What would people advise as the next step?

Zoggthefantastic
25-01-2009, 21:43 PM
No, you said that you + brother inherited it; so she must be dead, surely?
Or did you merely mean that she gave it to you by Deed of Gift?

She is definitely alive sorry to have used a misleading term. I do not know the exact legal process by which i have gained possesion of the property. I was told that the property was put into our names and held in trust. If this is very important I can seek clarification.

Thanks Bel. I presume that some form of serving notice is the way forward, however I was wondering if someone had advice as to clearing the situation up in a timely and legal manner that would cause all parties the least aggravation and legal fees.

The easiest way would be to ask T. if they have a copy of their rental agreement. However I cannot think of a way of doing so without being duplicitous that would not alert T to the fact that we intend to evict and that we don't posses a copy of the rental agreement.

I also don't believe T will leave easily / willingly as the flat is in a nice part of town, ground floor, has a large garden and we allow her to keep a dog, rent is currently quite low and I believe such properties are fairly thin on the ground!

Bel
25-01-2009, 22:37 PM
Remember you are evicting someone from their home. I would be very surprised if this is an AST as your Nan does not sound organised enough to serve a s20 prior to the AST. Many LL's forgot to do this. She would not be alone. So it is likely to be assured tenancy.

If you wish to proceed, my suggestions:

As ownership has now changed hands; have you informed the tenants of new arrangement? You must give all new LL name and an address. At same time serve correct notice to put up rent to current market level, as is your right. (Can only be done once a year)

Write letter informing T of LL's wish to live at property and serve s21 notice. Guage T's reaction. They may take legal advice and decided not to play ball. Or they may leave.

If tenant does not want to leave, and is still there after expiry of s21,
take legal advice about possession via section 8 / s21 route, which may be costly and not guarenteed to work. Consider offering T a sweetner to leave, so you can avoid court fees and legal expenses of over £1000 or much more.

jeffrey
26-01-2009, 11:00 AM
She is definitely alive sorry to have used a misleading term. I do not know the exact legal process by which i have gained possesion of the property. I was told that the property was put into our names and held in trust. If this is very important I can seek clarification.
In the light of Bel's post, yes- it's vital to know exactly who is the legal owner (= registered proprietor) now.

Mrs Jones
26-01-2009, 16:06 PM
Remember you are evicting someone from their home.

a home they have lived in for 14 years - and presumably have taken care of, paid the rent in a timely manner etc.etc. Being faced with eviction will be a shock after such a long tenancy and I doubt the tenant will leave without a fight.

It might well be worth considering Bel's suggestion of a "sweetener" before going down the "legal" route, but it will have to be done with some sensitivity (not something so far evident in this thread) and will need to take into account the costs to the tenant in finding and securing suitable alternative accommodation which will probably be more expensive, and the stress of moving etc.

Zoggthefantastic
26-01-2009, 20:50 PM
Thanks Bel for your advice and all the other helpul advice I have recieved and everbody's continued interest in helping me resolve this matter.

Jeffery if I were to clarify the ownership situation would it drastically alter your advice or ultimately does it all still boil down to a 'suck it and see' approach? I would not want to unnecessarily waste anybody's time.

Mrs Jones

a home they have lived in for 14 years - and presumably have taken care of, paid the rent in a timely manner etc.etc. Being faced with eviction will be a shock after such a long tenancy and I doubt the tenant will leave without a fight

It might well be worth considering Bel's suggestion of a "sweetener" before going down the "legal" route, but it will have to be done with some sensitivity (not something so far evident in this thread).


I was wondering if someone had advice as to clearing the situation up in a timely and legal manner that would cause all parties the least aggravation and legal fees.

The easiest way would be to ask T. if they have a copy of their rental agreement. However I cannot think of a way of doing so without being duplicitous that would not alert T to the fact that we intend to evict and that we don't posses a copy of the rental agreement.


Furthermore T. has not always looked after property- this week I am having to have a large holly tree removed from near a garden wall that is shared with next door that T should have removed - or asked to have removed or at least mentioned at an earlier date.

T. does not pay rent in a timely manner and T. has attempted (and been made to desist) running a dog grooming service from the property without seeking permission.