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formerlaw
02-02-2010, 00:15 AM
On 27/8/09 two friends and I signed a joint tenancy agreement (AST) for a house owned by a private landlord and adminstered by a letting agency. Rent is paid directly to the landlord, the letting agency (which is also sales and is run by a solicitor) simply advertised the property, drew up the tenancy agreement and checked references. The day to day management of the property is undertaken by the landlord/owner rather than the letting agency.

Original joint tenant 'A' wanted to be replaced on the agreement before the end of the AST (27/2/10). Original tenants 'B' and 'C' located a seemingly nice replacement tenant and sent her to the letting agency for credit checks and to begin the transfer process.

The prospective new tenant seemed honest and nice and had satisfactorily answered questions pertaining to lifestyle (specifically stated when asked that she was categorically NOT a smoker, did not smoke, etc. One of the clauses of the tenancy agreement prohibits smoking in the property and original tenants B and C both suffer from health problems which would be aggravated by smoke. New prospective tenant was cleared by letting agency as having good references and clear credit. New prospective tenant asked to have keys on the day before signing the lease due to moving van issues and proceeded to move her possessions into the house. Posessions smelled extremely strongly of smoke, included book called 'quit smoking now', and new 'tenant' arrived attempting to hide smoking paraphenalia on her person. This prompted a talk in which the new 'tenant' admitted to lying about the smoking issue to gain tenancy. Original tenants informed her that they were no longer willing to sign a joint tenancy agreement and that she would have to begin searching for somewhere else to live, but that they understood that she had nowhere to go that evening and could stay for a few days while she sorted something out. New 'tenant' was extremely upset and fled property in tears, returning later that night to close herself in her bedroom and smoke.

The next day original tenants rang letting agency to inform them that they would not be surrendering the original tenancy and were not willing to sign a new joint tenancy agreement with the proposed new tenant. Original tenants were informed that new tenant had turned up at opening time eager to sign a contract and had been given some type of tenancy contract in only her name for approximately 1/3 of the monthly rent (no names of original tenants) and that the contract was dated to run from that day (25/1/09) for six months as an AST. The house is let as a full unit and as a joint tenancy, not on a room by room basis. Original tenants immediately informed letting agency that they believe this agreement could not be valid as they had been performing on their current contract for five months and were not surrendering it, and had not signed off on new joint tenancy agreement. Letting agency solicitor claimed that he believed both agreements were valid.

Through email exchange he has now admitted that the new 'tenant's' agreement is 'unlikely' to be valid but that he refuses to serve her with notice to quit the property. New 'tenant' has not paid rent or deposit (although she would like to do both) and has now been in posession of property for eight days. The original tenants wish to have her removed immediately as they believe she has no legal claim on the property, she has been asked to leave on multiple occasions, and she has made threats to attempt to have original tenants evicted so she can move her friends into the property.

Letting agent/solicitor expects original tenants to allow new 'tenant' to live rent, council tax and bill free while she allegedly searches for a new property (she claims it may take a month and refuses to agree to any end date to the search). All the while she has not paid anything and is not in posession of a valid contract as the property is currently still under contract to the three original tenants. The original tenants are NOT willing to subsidise her rent for any longer (it has already been a week, worth approximately 90 pounds,) and while she remains in the property the room cannot be let to another person.

Rent for the last month of the original AST was due today and has been paid in full by the original tenants in order to continue to perform on the original contract that has not been surrendered.

The other 'tenant' comes and goes at will, is openly hostile to the original tenants and is unwilling to leave the property.

What can we do?!! The situation is intolerable, we do not have locks on our doors and we know nothing about this person other than that she deliberately lied to us to obtain tenancy. She now has full access to our belongings during the day whilst we are at work and and full access to our home at all hours. We do not wish her to remain in the property, we have asked her to leave repeatedly and we are certainly not willing to allow her to take advantage of free rent, council tax and utilities whilst she searches for another place to live. We have asked the letting agency to serve her with notice to vacate the premises within 7 days as we believe she has no legal right to be here and they have refused, stating that that may cause her to 'dig her heels in' and create problems. The problem has already been created and now we wish to be comfortable in our home again! Please help.

Specifically, if she has no legal basis to remain in the property due to our prexisting tenancy agreement (and lack of consideration on her part, no rent payment and no deposit) must we go through formal eviction proceedings? Can we change the locks whilst she is out of the property? We don't want to do anything that might be of questionable legality but we no longer feel safe in our home and the letting agency is not being supportive. We contacted the owner and they expressed their desire to retain us (original tenants) and stated that the letting agency should deal with this as that is what they are paid to do...

Bel
02-02-2010, 00:35 AM
You must get independant legal advice on this.

I suspect she is your guest and should only remain there with your permission. I suspect that you should give her reasonable notice to leave which could be a few hours if you cannot trust her, and say that after that she is not longer welcome. You then change the locks when she is out. Look after her gear until she made other arrangements.

Any trouble, call the police. She has been calculating in the way she has wormed her way in when she knew you were against it. Sounds a bit like fraud.


As she has no contract with you, if she wants recompense she will have to sue the agent who made the mistake in the first place . The agent should not have let her sign a new tenancy. The tenancy should have been assigned, with all current tenants signing the deed. The agent is being nice to her to cover their behind

bedlington83
02-02-2010, 08:58 AM
You must get independant legal advice on this.Totally agree with this as it's quite a bit different to the normal landlord/tenant issues. I am not a lawyer and this may turn out to be nonsense but my take on this is that, although the original tenants are entitled to quiet enjoyment of their home and have not agreed to the new tenant staying beyond a couple of days, the new tenant has an equally valid tenancy agreement and is also entitled to quiet enjoyment of the property. In other words either side of this dispute could treat the other as a lodger(s) and evict quite lawfully. If this happened the evicted party(ies) would have a very clear claim for illegal eviction against the landlord/agent.

formerlaw
02-02-2010, 09:09 AM
Bel, thanks for the quick response!

I spoke to a solicitor last week regarding the contracts (and whether she had a valid contract/if ours was somehow tied) and the solicitor confirmed that she did not have a valid contract. The letting agency solicitor keeps saying that as we sent her to them to have her references checked and orally stated that we wished her to move in as a replacement for the original tenant that wanted to leave that we are responsible for the situation, and that it is just our good luck that they may not have followed proper proceedure in having us surrender our lease and sign a new lease. Although we did originally intend to live with this person, it is very lucky that we had not yet signed either a surrender document or a new joint tenancy.

I feel certain that you are correct, and that the letting agency solicitor just wants to cover himself and the firm and does not want to antagonise this new person to the point that she might bring suit. The letting agency solicitor keeps stating that if we change the locks or in any other way prevent her access that we (original tenants) can be done for criminal offense. I suspect this is also a cover and that there is nothing that can be done other than her then suing the agency for giving her a bad contract. It doesn't help that she's a journalist.

The landlord/owner in this situation is a large public school and the house is practically on their campus. Landlord would be unhappy with police action or lawsuit. Letting agency specialises in high end property sales and also has a pristine reputation (and owner of letting agency and his son the solicitor are both old boys of the school). I don't know if this complicates matters? We really want to keep the lease after our AST expires at the end of February. We haven't had any problems and have (had) an extremely good relationship with both landlord and letting agency.

formerlaw
02-02-2010, 12:31 PM
Thanks for the straight talk, Bedlington- you've voiced what is probably our deepest fear!

[QUOTE=bedlington83;188975]the new tenant has an equally valid tenancy agreement and is also entitled to quiet enjoyment of the property. In other words either side of this dispute could treat the other as a lodger(s) and evict quite lawfully. QUOTE]

The problem as we see it is that we the original tenants signed an AST for the *entirety* of the property. We've been performing on that contract in good faith for the past five months. How is it possible for the new tenant to have a contract for the same property (not a part of the property, such as a specific bedroom, but the *entirety* of the property) if ours is still in existence, we have not surrendered, we have not assigned the lease and we are not in a contractual joint tenancy with her? To me it seems like there is no way both contracts can be valid, and as ours is pre-existing and has not yet reached the end of the AST period, hers must be void.

I would really love to hear from one of the solicitors who frequent this forum- I went to law school in the states before giving it up for museum work and know just enough about contract law for this situation to drive me mad.

bedlington83
02-02-2010, 14:22 PM
I spoke to a solicitor last week regarding the contracts (and whether she had a valid contract/if ours was somehow tied) and the solicitor confirmed that she did not have a valid contract.
If this advice is good then you don't have a problem - you have the only valid tenancy agreement. Like you though I'd be very interested in reading the views of someone suitably qualified and experienced in dealing with complicated housing matters.

Did the solicitor say why the new contract was not valid?

Lawcruncher
02-02-2010, 14:50 PM
Suppose:

A grants a lease for five years from 1st January 2010 to B

and later

A grants a lease of the same property for four years from 1st February 2010 to C.

What is the status of the second lease? It is a concurrent lease. It gives no right of occupation to C since A cannot take away from B the exclusive right of occupation he gave to B when he granted him his lease. The second lease operates to assign the reversion of the first lease to C for the period of his lease, that is it gives C the right to collect rent from A and enforce the covenants on the part of A contained in A's lease.

Without seeing the terms of the agreement with the replacement tenant we cannot be categorical as to its effect except to assert that it cannot give the replacement any rights of occupation. It is entirely possible though that the tenancy granted to the replacement is not invalid and that in exchange for her paying what is one third of the rent she is entitled to receive the whole rent from the tenants entitled to occupation.

Does the fact that the replacement was recommended by the tenants entitled to occupation and that she was allowed into occupation by them change the position? Legally, I do not think it does. There must though be at least an argument, but not I think a strong one since it is inescapable that the matter was dealt with in completely the wrong way by professionals, that viewing what happened as a whole, it would be equitable to treat the position as if the matter had been dealt with properly.

jeffrey
02-02-2010, 14:55 PM
Suppose:

A grants a lease for five years from 1st January 2010 to B

and later

A grants a lease of the same property for four years from 1st February 2010 to C.

What is the status of the second lease? It is a concurrent lease. It gives no right of occupation to C since A cannot take away from B the exclusive right of occupation he gave to B when he granted him his lease. The second lease operates to assign the reversion of the first lease to C for the period of his lease, that is it gives C the right to collect rent from A and enforce the covenants on the part of A contained in A's lease.
Alternative view
Lease2 is invalid, because:
a. A is bound by lease 1;
b. A cannot grant a lease for the term of lease1 or anything shorter; but
c. B could grant an underlease for a term shorter than that of lease1; and
d. A could grant a reversionary lease for a term longer than that of lease1.

Lawcruncher
02-02-2010, 15:29 PM
Alternative view
Lease2 is invalid, because:
a. A is bound by lease 1;
b. A cannot grant a lease for the term of lease1 or anything shorter; but
c. B could grant an underlease for a term shorter than that of lease1; and
d. A could grant a reversionary lease for a term longer than that of lease1.

We have already had this discussion:: http://www.landlordzone.co.uk/forums/showthread.php?t=13671

formerlaw
02-02-2010, 15:39 PM
Jeffrey and Lawcruncher, thanks for confirming the likely validity of both leases. We (original tenants) are now confident she has no legal right of occupation, but we still don't know what courses are open to us to remove her.

What is the next step to resolution and removal of this person? Letting agency is unwilling to serve notice to quit property and prefers for us to support her until she finds somewhere else to go. We don't think she's even looking.

The letting agency solicitor also recommended that we (original tenants) pay her off to get her to leave. They have also offered to cover her expenses thus far (moving, etc), though are unwilling to cover ours for housing her. I assume they are just attempting to protect themselves from a potential lawsuit brought by the new tenant?

What actions are available to us? Ideally we would like to end the situation as quickly and amicably as possible- and we're ethically opposed to paying her to leave.

Lawcruncher
02-02-2010, 15:47 PM
Quoting myself:


It is entirely possible though that the tenancy granted to the replacement is not invalid and that in exchange for her paying what is one third of the rent she is entitled to receive the whole rent from the tenants entitled to occupation.

Why not drop that possibility into the agent's lap? Hint you may also mention it in passing to the replacement tenant. May help to concentrate their minds on the problem.

Bel
02-02-2010, 23:08 PM
Quoting myself:


It is entirely possible though that the tenancy granted to the replacement is not invalid and that in exchange for her paying what is one third of the rent she is entitled to receive the whole rent from the tenants entitled to occupation.


.

Does this hold as the OP says the girl has not paid anything. No consideration.

JK0
02-02-2010, 23:21 PM
Wait until she goes out, pack up her belongings and leave outside. Change the locks. Make sure you stay at home till she comes and gets her things.

If you find her tenancy agreement while you are packing, confiscate it.

Preston
03-02-2010, 00:14 AM
Jeffrey and Lawcruncher, thanks for confirming the likely validity of both leases. We (original tenants) are now confident she has no legal right of occupation, but we still don't know what courses are open to us to remove her.

What is the next step to resolution and removal of this person? Letting agency is unwilling to serve notice to quit property and prefers for us to support her until she finds somewhere else to go. We don't think she's even looking.

The letting agency solicitor also recommended that we (original tenants) pay her off to get her to leave. They have also offered to cover her expenses thus far (moving, etc), though are unwilling to cover ours for housing her. I assume they are just attempting to protect themselves from a potential lawsuit brought by the new tenant?

What actions are available to us? Ideally we would like to end the situation as quickly and amicably as possible- and we're ethically opposed to paying her to leave.

Hi

I have to say that I prefer Jeffrey's view of the current legal position.

You are the lawful tenant. The person entered onto the premises as a bare licensee. She remains on the premises without your permission. You have asked her to leave. That is what she must do!

I would add that the new "prospective tenant" is very probably (assuming that she is in full knowledge of the facts) now committing an offence under the Protection from Eviction Act, as is your landlord (albeit as a result of the actions of his or her agent). You are, in Protection from Eviction Act terminology, a residential occupier. In my view you would be perfectly entitled to change the locks whilst she is out of the premises and deny her entry. Equally, I think it is almost inconceivable that an application for an injunction on your part to order her to leave the premises would fail.

Good luck!

Lawcruncher
03-02-2010, 10:27 AM
If you find her tenancy agreement while you are packing, confiscate it.

Is that not theft?

Lawcruncher
03-02-2010, 10:30 AM
Does this hold as the OP says the girl has not paid anything. No consideration.

The point is not so much whether any consideration has been paid, but whether it is payable.

JK0
03-02-2010, 10:42 AM
Is that not theft?

Don't think so. She conned it out of the agent. She didn't pay for it did she?

Lawcruncher
03-02-2010, 11:01 AM
I have to say that I prefer Jeffrey's view of the current legal position.

The effect of what both Jeffrey and I say is the same when it comes to who is entitled to occupation.

I am saying there is a possibility that the second agreement created a tenancy but that that tenancy gave no right to occupation.

Jeffrey is saying that the second agreement probably did not create a tenancy and since there is no tenancy there is no right to occupation.

Whether I or Jeffrey is right and if one of us is right, then the replacement tenant has no legal, as opposed to equitable, right to occupy.

The position is though not entirely straightforward and if I understand it correctly goes something like this:

1. The existing tenants told the agents they wanted someone to replace one of them who wanted to leave.

2. The agents said they should go off and find someone.

3. They went off and found someone.

4. She seemed very nice and said she did not smoke, which was important.

5. The continuing tenants gave details to the agents who said they would sort things out.

6. It was discovered that the replacement tenant did in fact smoke and the continuing tenants rushed off to the agents and told them they did not want her as the new tenant.

7. The agents said they had arrived too late as they had just got the replacement tenant signed up.

8. The way the agents had gone about signing up the replacement tenant was quite wrong.

9. The continuing tenants feeling sorry for the replacement tenant allowed her to stay the night and now she will not go.

The question is whether, taking into account the above, and perhaps other facts of which we are unaware, it is equitable for the replacement tenant to be allowed to remain in the property.

Lawcruncher
03-02-2010, 11:11 AM
Don't think so. She conned it out of the agent. She didn't pay for it did she?

Not relevant if true.

Bel
03-02-2010, 14:32 PM
In practical terms, what is the girl likely to do if she is given short notice and the locks are then changed.

Is the threat of this any worse then having to actually live with her?

OP's choice.

Perhaps find out if she would be entitled to legal aid first.

Bel
03-02-2010, 14:52 PM
"Equitable remedies, unlike remedies at law, are granted at the sole discretion of a judge. A jury is not involved. Equitable awards also require that the person seeking equitable relief must have acted in good faith in the matter at hand (i.e., he who asks for equitable relief must come before the court "with clean hands"). "

Excuse my coffee table law knowledge, but

Is the girl entitled to equity if she has been deceitful?

Lawcruncher
03-02-2010, 15:00 PM
Is the girl entitled to equity if she has been deceitful?

A good question to which the answer is "probably not, but you never know."

formerlaw
03-02-2010, 15:33 PM
I hope that if she were to bring the case to court for equitable remedy she would only be able to seek it from the letting agency and not from the original tenants. I don't know if this is the case. She is quite flexible with reality though, she originally went to the letting office complaining that she is not a smoker and that we were inventing it because we had taken an irrational dislike to her, then admitted to social smoking, then to smoking socially and when stressed, then to having quit five or six times in the past and being able to quit again at a moment's notice if that was what we wanted. The letting agency is now obviously aware that she is changing her story. We really just want not to have to see her ever again as there is definitely no trust at this point.

Lawcruncher's points 1-9 are an accurate summation of what has happened. There are no additional facts of which I am aware.

As far as excluding her from the property by changing the locks, I am going to see the landlord/owner and ask if that is something we can do. The letting agent has admitted via email that he does not believe she has a valid contract or right to stay but that we need to give her as much time as she requires to find somewhere else, or she might make things worse for us. By this I assume he means for himself/the agency.

As far as Bel's point of what she might actually do if the locks are changed and she's given short notice, I don't know. She is extremely unpredictable and I could see her just refusing to leave the property when allowed back in to collect her things...I don't want to enter 'her' bedroom or to otherwise interfere with her possessions but I would prefer she not have a chance to get back into the house. I certainly wouldn't confiscate anything, especially the invalid contract (I assume the letting agency has a copy of that on file anyway!). Anything would be preferable to continuing to live with this person and supporting her financially!

We are also now beginning to feel concerned about the fact that if she damages our house we will be required to pay for it as the legal tenants (and as she has no deposit we have no surity that she won't intentionally inflict damage) and if she injures herself in our house and tries to get compensation we may be liable!

Bel
03-02-2010, 15:44 PM
As far as Bel's point of what she might actually do if the locks are changed and she's given short notice, I don't know. She is extremely unpredictable and I could see her just refusing to leave the property when allowed back in to collect her things...I don't want to enter 'her' bedroom or to otherwise interfere with her possessions but I would prefer she not have a chance to get back into the house. I certainly wouldn't confiscate anything, especially the invalid contract (I assume the letting agency has a copy of that on file anyway!). Anything would be preferable to continuing to live with this person and supporting her financially!

You simply do not let her in ever again.

You bring her stuff to her outside, or use someone else as a go between. Or get the police to assist and ensure fair play.

Please post back what happens.

jeffrey
03-02-2010, 16:02 PM
"Equitable remedies, unlike remedies at law, are granted at the sole discretion of a judge. A jury is not involved. Equitable awards also require that the person seeking equitable relief must have acted in good faith in the matter at hand (i.e., he who asks for equitable relief must come before the court "with clean hands"). "

Excuse my coffee table law knowledge, but

Is the girl entitled to equity if she has been deceitful?
In that case, no. "He [or 'she'] who comes to equity must come with clean hands" is the applicable maxim.

formerlaw
04-02-2010, 12:18 PM
Update-

I went to see the landlord/owner this morning to discuss the situation and to ask for permission to change the locks. They denied permission and said that they were not willing to make anyone homeless.

Apparently the letting agency has been in contact with the owner and has admitted that the contract they gave to the new tenant is not valid, but that they are not willing to do anything about it. The agency told the owner that it is our responsibility as tenants to remove her as we are the ones who allowed her entry in the first place.

The owner then threatened to just remove the house from the letting market entirely as they are not interested in tenancy headaches, which is why they employ the agency in the first place. They are also worried about bad press as the new tenant is a reporter for the city newspaper.

I apologized profusely for the situation having come to this and assured the landlord/owner that we are not going to change the locks.

It seems the situation is at a stalemate.

Kittaycat
04-02-2010, 13:24 PM
[QUOTE=formerlaw;189601]Update-

Apparently the letting agency has been in contact with the owner and has admitted that the contract they gave to the new tenant is not valid, but that they are not willing to do anything about it. The agency told the owner that it is our responsibility as tenants to remove her as we are the ones who allowed her entry in the first place.

Surely it is for the letting agency - who admit to not providing a valid contract - to effect a NTQ on this tenant. And surely it is in the Landlord's interest that they do so - it is in the L/L's interest surely to keep on reliable tenants rather than put the property back on the market. Formerlaw - I would put this to the agency, they are trying to take 'easy' option.

westminster
04-02-2010, 15:17 PM
You have a valid joint tenancy contract. Your quiet enjoyment has been breached by an intruder who is only there due to the actions of the agent acting on behalf of the landlord (you'd have told the 'guest' to leave, otherwise).

You have been informed by the agent that the contract he issued was invalid - I would take him at his word (and try to get this in writing).

You do not need the agents permission to change the locks. However, you must keep the original lock and reinstate it before the end of the tenancy, because the original lock is the landlord's property.

As far as I can gather, two legally qualified people on the forum do not think the woman has any right of occupation. And probably no equitable rights either, as she been deceitful.

So all in all, I would tell the woman you want her to leave a couple of days hence, then go ahead and change the locks while the woman is out, and parcel up her stuff ready to be handed over on the doorstep, ideally with a couple of witnesses present to protect against accusations of physical force, etc. Lock the door behind you during handover, in order to prevent any attempt by the woman to gain entry.

Bel
05-02-2010, 19:42 PM
You have a valid joint tenancy contract. Your quiet enjoyment has been breached by an intruder who is only there due to the actions of the agent acting on behalf of the landlord (you'd have told the 'guest' to leave, otherwise).

You have been informed by the agent that the contract he issued was invalid - I would take him at his word (and try to get this in writing).

You do not need the agents permission to change the locks. However, you must keep the original lock and reinstate it before the end of the tenancy, because the original lock is the landlord's property.

As far as I can gather, two legally qualified people on the forum do not think the woman has any right of occupation. And probably no equitable rights either, as she been deceitful.

So all in all, I would tell the woman you want her to leave a couple of days hence, then go ahead and change the locks while the woman is out, and parcel up her stuff ready to be handed over on the doorstep, ideally with a couple of witnesses present to protect against accusations of physical force, etc. Lock the door behind you during handover, in order to prevent any attempt by the woman to gain entry.

That would be my view.

Nothing in this life is certain.

Forget what the agent wants or the LL wants (why cant she move in with them?) Listen to your heart.

And why did you appologise profusely? Its not your fault for having a wet agent and landlord.

westminster
05-02-2010, 20:03 PM
And why did you appologise profusely? Its not your fault for having a wet agent and landlord.
Quite. OP has been far too polite, apologetic and nice about the whole situation. Usually these are admirable qualities, but the agent/landlord are completely taking advantage.

Preston
06-02-2010, 10:05 AM
Quite. OP has been far too polite, apologetic and nice about the whole situation. Usually these are admirable qualities, but the agent/landlord are completely taking advantage.

I thoroughly agree with you about the OP's politeness, but in the nicest possible way I think she is missing the key point here, namely, that the solution is in her hands, not the agent's. The tenants are the ones who have possession and so it is on the basis of their legal interest that action can be taken to remove the unauthorised occupier. What they do is of course entirely up to them, but the longer the leave it without taking action the difficult, potentially, it becomes.

mind the gap
06-02-2010, 10:24 AM
I thoroughly agree with you about the OP's politeness, but in the nicest possible way I think she is missing the key point here, namely, that the solution is in her hands, not the agent's. The tenants are the ones who have possession and so it is on the basis of their legal interest that action can be taken to remove the unauthorised occupier. What they do is of course entirely up to them, but the longer the leave it without taking action the difficult, potentially, it becomes.
I agree. This woman does sound like a consummate actress. On the one hand she is presenting herself as a 'victim', and crying homelessness, on the other she is scheming and lying to remain in a property where she is clearly not entitled to live.

Since it is the LL's and agent's cock-up, perhaps the prestigious public school should accommodate her at their own expense until she finds somewhere else? I'm sure they can find her a bunk bed in the servants' quarters somewhere.:)