Can anyone advise me here please?

[Hannah]

Hi, I wonder if anyone could advise me? My husband and I are looking after my brothers flat, and rented it to a group of friends in August 2002 on an Assured Shorthold Tenancy Agreement.

Ten months later two of the friends moved out and two others replaced them, I was only made aware of this situation when the two new occupants phoned me to introduce themselves.

I pointed out that I was most surprised at this course of events, but we came to the agreement that I reference the two new occupants, and give the group of friends another tenancy. I asked a friend of mine who is a lawyer how to cover this situation should it arise again, and included the following clause in the new tenancy agreement:

The following has been agreed between the tenant and the landlord: At the end of this term, if one of the joint tenants wants to vacate, he/she is to advise the landlord of this at least one month prior to anticipated departure date, he/she may source an acceptable replacement and ensure that a reference form covering a minimum of 3 years work and accommodation history (with full contact details including emails if the referee is not in England) is supplied to the landlord by email and regular post. He/she may make arrangements to be paid his/her share of the deposit by the incoming replacement.

Recently I have been advised that only two of the original tenants remain in the apartment and the other three have been replaced. I asked the two original tenants to give the three new occupants referencing forms to be completed and returned to me as soon as possible. They are being very slow in supplying these references.

We are planning to spend a bit of time travelling, and therefore my husband and I will be asking a friend to co-manage the property, so there is always someone on hand. We are hoping to book tickets for July, and I am concerned that the occupants are unable to supply adequate references in time.

I am considering giving them a Section 21, and offering them to opportunity to apply for a new tenancy, which, as far as I can see, would mean that if they are unable to supply adequate references, then they would have to vacate at the end of the 2 month notice period?

Am I acting legally if I do this? Is there a better option that someone with more experience can recommend?

Thanks,

Hannah

[lawstudent]

How long is the current tenancy? When did it start? Is rent payable monthly?

Generally speaking you can legally serve a S21 whenever you like, without giving any reason, provided the correct notice is given. It would seem very sensible of you to do this in your current circumstances.

[dazalock]

Isnt this a HMO lawstudent?

[Hannah]

Hi Lawstudent,

Thanks for your reply, the current tenancy started in August 2003, it was a 6 month assured short hold tenancy, and the rent is paid monthly.

My main query is: If I serve them a S21, giving 2 months notice. Can I let them apply for a tenancy to start at the end of their notice period, providing their references are okay?

Cheers,

Hannah

[lawstudent]

Dazalock - yes.

Hannah - yes you can - I can see no problem at all.

[Hannah]

Hi, thanks for the replies, what is a HMO?

Hannah

[Patois]

An HMO is a House in Multiple Occupation.
Which is a dwelling occupied by persons who do not form a single household.

Sounds like you may have one - not clear cut at the moment because of case law Barnes v Sheffield City Council (1995) and Rogers v L B Islington 1999.

Your local authority (usually Environmental Health) will be able to advise - particulary in view of the forthcoming changes in legislation regarding HMO's (if it isn't one now it will be later in the year)

If you intend to go travelling later this year then it would be advisable to find out if you need to make an investment in the property with regard, in particular, to fire precautions.
Then the friend looking after the property will still be your friend in years to come.

[Dan]

Hannah,


An HMO is, in my opinion, bad news! I unwittingly created an HMO and had the local Environmental Health Dept requiring my to spend a lot of money on new doors, a new staircase, fire alarms/escapes etc. With the new regulations previously mentioned it will be even worse.

Dan

[Paul_f]

The following has been agreed between the tenant and the landlord: At the end of this term, if one of the joint tenants wants to vacate, he/she is to advise the landlord of this at least one month prior to anticipated departure date, he/she may source an acceptable replacement and ensure that a reference form covering a minimum of 3 years work and accommodation history (with full contact details including emails if the referee is not in England) is supplied to the landlord by email and regular post. He/she may make arrangements to be paid his/her share of the deposit by the incoming replacement.

My question is - was it agreed with the tenants beforehand or was it presented as a fait accompli? If the tenants didn't agree to this in advance I doubt if it will be an enforceable clause. It should also be included within the AST under "Special Tenancy Conditions" to show it clearly is meant to be outside the remit of the Housing Acts.

Also as soon as one tenant leaves and is replaced necessitates the drawing up of a new agreement each time. Do you have a clause to say the tenants will pay £xyz for this every time because you should?

[Hannah]

Hi Patois, Thanks for your reply, is it still an HMO if one Assured Shorthold Tenancy Agreement is given to the friends, they do not have separate tenancy agreements. When one moves out and another moves in, a new Assured Shorthold Tenancy Agreement is given to the group.

What can one do to make sure it is not an HMO?

Thanks,


Hi Paul, thanks for your reply, yes it was agreed beforehand between all of us that the new tenancy should have a clause allowing for an individual to move out and be replaced. It is included under “Special Tenancy Conditions”, there is no clause saying the tenants should pay for this, how much do you think is a fair charge for this?

Thanks,

Hannah

[Patois]

Rent to a family.

At the moment - the joint AST is only one part of the assessment as to whether it is an HMO. As discussed - due to case law - it is a matter which needs to be assessed looking at individual circumstances - how the group came together, who chooses new tenants, how they live - the level of sharing etc etc etc.


It is largely academic - as I've said, after October 2005 (not a fixed date yet but October is the rumour!) when it will be an HMO and if three storeys or above then it will need a license.

[lawstudent]

Just to clariy Patois's post. Even after the new law comes into effect, an HMO will only be deemed to exist if the property is occupied by more than one person who are not members of the same family. And licensing will not be required for HMOs with fewer than five occupants.