Can new L evict T of HMO who does not in fact reside?

[spicy_]

Hello, I'm new to this so hope I've posted this thread for advice in the right place.

I'm a new landlord of a HMO and have a tenant that has lived in the property for roughly 12 years. I have several questions about this. Firstly she doesn't have a tenancy agreement. Would this class her as a sitting tenant?

I have been told under discretion that she uses the property to claim benefit money and doesnt actually live there - never has. She lives with her child and her boyfriend somewhere else. However she does use the space as storage. The property has a communal garden and she bullies the other tenants so that she gets exclusive use of the garden. The garden has been used by herself and is full of outdoor kids toys etc and shes also used it as a dumping ground for stuff she no longer uses . Her personal effects also litter the hallway whereas everyone else keeps all the'r belonging in their rooms. I've just taken over the property, the previous landlord didn't bother tackling her as she's been described as a bit of a bully so she just got her way. I've yet to meet her. She is never in when I visit the HMO.

Please could someone advise me on the best way of getting rid of her? Could I serve a notice or is it more difficult because she hasn't has a tenancy agreement? :o

[tom999]

What date did the tenant move into the property?
Does she have her own bedroom or room/area with a lock on it?

[spicy_]

What date did the tenant move into the property?
Does she have her own bedroom or room/area with a lock on it?

I don't know the exact date ( could find out from the previous owner) but was told it was 12 years ago- roughly 1997. She has her own bedroom with a lock but shares the kitchen and bathroom

[tom999]

To determine what type of tenancy exists, it's important we know the exact date. Is there any way that you could find out?

The reason being is that most new tenancies since 28 February 1997 are Assured Shortholds, unless the agreement specified an Assured Tenancy. A written tenancy agreement does not have to exist for there to be a tenancy.

Does tenant pay rent?
If so, what rent does she owe?

[spicy_]

To determine what type of tenancy exists, it's important we know the exact date. Is there any way that you could find out?

The reason being is that most new tenancies since 28 February 1997 are Assured Shortholds, unless the agreement specified an Assured Tenancy. A written tenancy agreement does not have to exist for there to be a tenancy.

Does tenant pay rent?

She's been paying rent to the previous landlord. I took over the property last week so haven't had any payments yet.

I'll find out from the previous landlord the date although he's an elderly man so don't know if he's going to be able to get me a precise date. Also if there's no written tenancy how can I find out whether the tenancy was assured?

Can I not threaten to disclose her to benefit office if she doesn't move on?

[spicy_]

Also she's been paying way below the market rent rate for years. I found out from the rent officer that I could get double what she's been paying

[tom999]

I'll find out from the previous landlord the date although he's an elderly man so don't know if he's going to be able to get me a precise date. Also if there's no written tenancy how can I find out whether the tenancy was assured?Also, ask the previous landlord, if a valid s.20 notice of the 1988 Act was served.

If tenant moved in between 15 Jan 1989 and 27 Feb 1997 and landlord didn't issue a s.20 notice, landlord has created a Standard Assured Tenancy (so cannot use s.21 procedure to gain possession).


Can I not threaten to disclose her to benefit office if she doesn't move on?If you've not met her, maybe you should try to reason with her first.

Note: Did you not consider tenancy status of tenant when purchasing property?

[spicy_]

I was aware of the sitting tenant when I bought the property and got the property at a good price to reflect this. I'm just thinking of steps to get shot of her now.

If it turns out that she has a standard assured tenancy then how could I get her out? One suggestion has been to offer a financial incentive. What kind of money would we be talking about? The property is in a prime location in london

[tom999]

If it turns out that she has a standard assured tenancy then how could I get her out?Serve a valid notice and obtain a court order. Mandatory grounds for possession (for an assured tenancy):

more than eight weeks rent arrears
redevelopment of the property

In the first instance, seek specialist advice from a solicitor who deals in landlord and tenant law.


One suggestion has been to offer a financial incentive. What kind of money would we be talking about? The property is in a prime location in londonDepends on tenant.

[quarterday]

If she is a tenant under the Rent Act then almost certainly the rent will have been re-registered by the rent officer, and you will find evidence of this in the voa website, click search the electronic rent register. You do mention the Rent Officer in your posting; it is he who has authority, in the first instance to determine so called fair rents.

If she is a rent act tenant, my advice to you is that she will be very difficult to shake off! It has been held by the courts that a tenant is entitled to a rent act tenancy even if they are living somewhere else for really quite extended periods (eg over a year) purely because they might one day change their mind and return to reside in the accommodation of which their occupation and amount of rent payable is protected.

It won't do you any harm to try and find out where she is living and report the matter to Housing benefits. They may stop benefits on this accommodation if they discovered she has been defrauding the system by for example failing to disclose that she now co-habits with someone earning a good wedge. Because of the risk of claw-back in the event of your tenant's claim later being found to be fraudulent by the LA I would not advise that you accept benefit payments direct from the authority. Tell them to pay the claimant and ask the claimant to pay you. With a bit of luck, the tenant will spend the money on gin/drugs; and you will get possession on the grounds of non payment of rent.

[jeffrey]

more than eight weeks rent arrears
Read this as meaning that, for g8, T must owe at least eight weeks' (or, if rent monthly, two months') rent both when:
a. L serves s.8 Notice; and
b. Court hears the case.
"Arrears" does not mean "unpaid". Many LZ threads explain this distinction.

[tom999]

Read this as meaning that, for g8, T must owe at least eight weeks' (or, if rent monthly, two months') rent both when:
a. L serves s.8 Notice; and
b. Court hears the case.
"Arrears" does not mean "unpaid". Many LZ threads explain this distinction.Yes, I am aware of the distinction between 'rent arrears'* and 'rent owed' for s.8 g8, however 'rent arrears' is what Shelter site states, see: Eviction of assured tenants (http://england.shelter.org.uk/get_advice/eviction/eviction_of_private_tenants/the_rules_by_tenancy_type/eviction_of_assured_tenants):

"...Mandatory grounds:
Examples of mandatory grounds include:
more than eight weeks rent arrears*..."

[jeffrey]

So? This merely shows that we know the Housing Act 1988 better than Shelter does.

[Telometer]

If this is a Rent Act tenant (and it is far from clear to me that it is - in which case, she is probably on an AST and can easily be evicted), a better ground for eviction is... that the tenant does not actually live there.

In order to benefit from the reduced rate that comes with a Rent Act tenancy, the tenant has actually to live there. This one apparently doesn't. I had a Rent Act tenant evicted on this basis.

[jeffrey]

The Rent Act 1977 non-payment equivalent of grounds 8/10/11 in Schedule 2 to the Housing Act 1988 is a single Case 1 in Schedule 15 to the 1977 Act reading as follows:

Cases in Which Court May Order Possession

Case 1
Where any rent lawfully due from the tenant has not been paid, or any obligation of the protected or statutory tenancy which arises under this Act, or:
(a) in the case of a protected tenancy, any other obligation of the tenancy, in so far as is consistent with the provisions of Part VII of this Act, or
(b) in the case of a statutory tenancy, any other obligation of the previous protected tenancy which is applicable to the statutory tenancy
has been broken or not performed.

[spicy_]

Thank you for the replies. I have been delving into the paperwork. The tenant in question actually moved into the property in June 1990 - so that's 19 years she's been there. No contract was initially signed although the landlord at that time claims that 'she signed an AST about a year later but still has sitting tenants rights'. I haven't been given any paperwork regarding the contract that was signed at the time, this is info that the previous landlord's solictor passed onto me via my solicitor when I was purchasing the HMO.
With this info, what can I do to get rid of her?

[jeffrey]

OK- at least we know that the 1988 Act (not the 1977 Act) applies. Unless a s.20 Notice [see post #7] was served on T (and it's up to L to prove it- not up to T to disprove it), T has a Standard Assured Tenancy. L cannot end it other than on grounds under s.8 (if there are any such grounds).

[Telometer]

My advice (acting on behalf of L) came from Westminster Council's Tenancy Relations Officer (! nice man!!) that case law had held that a tenant was required to live in the property in order for the preferential terms of a protected tenancy to continue. Where the tenant had other accommodation where he lived, he clearly was no longer residing at the address, so his security of tenure would rapidly be overturned by the court.

Having served a notice to quit, we went to court on this basis, informed the judge that T was living elsewhere -despite being up to date with the rent - and he ceased the tenancy there and then.

I confess I do not know the case law, and our tenant was a Rent Act tenant. But the court process was done by a barrister employed one of the bucket shop eviction sites that advertise on here. (I could have done it myself, but the £250 it cost was well worth it.)

[theartfullodger]

Re. the comment...


So? This merely shows that we know the Housing Act 1988 better than Shelter does.

? Perhaps rather one might comment on the navigator of the Shelter Website...

See in particular...
http://england.shelter.org.uk/get_advice/renting_and_leasehold/private_tenancies/regulated_tenancies

- which, in the eyes of this unqualified Landlord seems a fair summary of the situation...

And tenants who contact Shelter get (with the right adviser..) access to their full internal systems and experts...



Cheers!


Lodger

[Lea Beven]

anyone taking benefits that they are not entitled too is breaking the law and stealing from us. If you even suspect it - it is your duty to report her.
Don't even think twice. If she is not being fraudulant - then she will still revieve the benefits. Simple.

The tenancy issue - I would call the local housing officer and ask them to comment. You can not speculate on this, too much at stake.