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Wonderful Alice
10-03-2010, 14:43 PM
Hi. I own a house, and my partner owns a flat. A few years ago I moved in with my partner in her flat and let an elderly relative move in to my house rent free. The agreement was that they could live there and would just cover my costs, paying the bills and my mortgage payments.

I now want to move back in and have asked them to leave tomorrow. However they are refusing to leave as they say that I have to go through the courts to evict them as they've got an oral AST. This isn't fair as I've let it to them cheaply as I feel sorry for them, they've been living rent free for goodness sake! Can I just go in and change the locks whilst they are out? (Actually I don't even have a key, so I'll have to break into the place.)

tom999
10-03-2010, 15:02 PM
A few years ago I moved in with my partner in her flat and let an elderly relative move in to my house rent free. The agreement was that they could live there and would just cover my costs, paying the bills and my mortgage payments.As you no longer reside in the property and you have accepted payments (which some may consider as rent), it's likely an oral AST exists.


Can I just go in and change the locks whilst they are out? (Actually I don't even have a key, so I'll have to break into the place.)No.

Never a good idea to let to family members unadvised, as done incorrectly it can turn into a mess, as you've found out.

Before the elderly relative moved in, did you serve a notice under Ground 1 of the Housing Act 1988?

westminster
10-03-2010, 15:15 PM
Hi. I own a house, and my partner owns a flat. A few years ago I moved in with my partner in her flat and let an elderly relative move in to my house rent free. The agreement was that they could live there and would just cover my costs, paying the bills and my mortgage payments.

I now want to move back in and have asked them to leave tomorrow. However they are refusing to leave as they say that I have to go through the courts to evict them as they've got an oral AST.

Ah, relatives - aren't they wonderful :rolleyes:

Assuming the house is in England/Wales, it might well be construed as an oral periodic AST because of the mortgage payments (not exactly 'rent free').

Serve a S.21(4)(a) notice on them, then follow up with possession proceedings if necessary (probably, from the sound of it). See

http://www.letlink.co.uk/letting-factsheets/factsheets/factsheet-21-section-21-notice-requiring-possession-of-an-assured-shorthold-tenancy.html

Might be an idea to hire a specialist landlord & tenant law solicitor, just to ensure you get it right in this somewhat unusual situation, as mistakes in the notice would cause significant delays to the possession procedure.

Wonderful Alice
10-03-2010, 15:16 PM
Thanks for your comments.


Before the elderly relative moved in, did you serve a notice under Ground 1 of the Housing Act 1988?

Would this have made a difference?


And do you think it could be anything other than an oral AST? (It definitely would be an AST, not an AT/Rent Act tenancy, by the way.)

tom999
10-03-2010, 15:19 PM
Would this have made a difference?
If served correctly, g1 will give LL mandatory possession.


And do you think it could be anything other than an oral AST? (It definitely would be an AST, not an AT/Rent Act tenancy, by the way.)
If there was no written agreement, and the tenancy was in England or Wales and began a few years ago, then it's likely to be an oral AST.

Wonderful Alice
10-03-2010, 15:28 PM
Does it not make a difference that they're renting for free? It seems really unfair.

tom999
10-03-2010, 15:31 PM
Does it not make a difference that they're renting for free?As mentioned above, they are making mortgage payments, which a Court may consider to be rent -so they're not renting for free.

westminster
10-03-2010, 15:37 PM
Does it not make a difference that they're renting for free? It seems really unfair.

How much are the mortgage payments per month, and how much would the market rent for the property be per month?

jeffrey
10-03-2010, 15:52 PM
If there was no written agreement, and the tenancy was in England or Wales and began a few years ago, then it's likely to be an oral AST.
This depends. The cut-off point is 28 Feb. 1997, after which it is more likely to be an AST.

tom999
10-03-2010, 19:07 PM
This depends. The cut-off point is 28 Feb. 1997, after which it is more likely to be an AST.Depends on whether OP's 'a few years' means almost 13 years; which is unlikely.

westminster
10-03-2010, 19:10 PM
which is unlikely.
I agree. 'A few' in this context is most likely to mean 3 or 4 years.

mind the gap
10-03-2010, 19:15 PM
I agree. 'A few' in this context is most likely to mean 3 or 4 years.

Not if you are working to my mother-in-law's system of quantification, in which 'nearly a pint of milk' (in her pancake recipe) actually meant one and a quarter pints, and 'nearly a yard', about eighteen inches.

Preston
10-03-2010, 21:47 PM
There are two main possbilities:

a) your relative has an assured shorthold tenancy, or
b) there is no tenancy, perhaps because the payments made by your relatives have not been specific enough to be regarded as rent, or maybe because there was no intention to create legal relations (a pre requesite for any tenancy). In these circumstances you have on your hands a simple family arrangement, effectively a simple licence.

For the reasons others have given (a) seems the most likely, but you would need to give more much information about the timescales, the amounts, what was said at the start of and during the arrangement, whether you have granted exclusive possession, etc before anyone could give you any sensible advice on that particular point.

My initial reaction is that it would probably be easier for you to act on the basis that (a) applies, not least because this is what your relatives believe and so presumably (or hopefully) they would not contest any notice and subsequent proceedings issued by you. Even this route has complications, though, because some details of the tenancy terms - the rent in particular - might not be entirely clear.

If it is a simple licence then you need to issue reasonable notice (which, if the property has been their main home for any length of time is likely to be four weeks or more) and then apply for summary possession. Depending upon the the workload in your local county court, this is likely to add upwards of 2 or 3 weeks to the process. Unfortunately the forms are also a little more difficult to complete than the standard forms used for possession applications in relation to ASTs.

In a nutshell, you really do need some specialist advice I am afraid and if at all possible, a negotiated solution is probably the best way forward, though I do recognise that things may have gone beyond that point.

westminster
10-03-2010, 23:31 PM
There are two main possbilities:

a) your relative has an assured shorthold tenancy, or
b) there is no tenancy......
I agree, it's a grey area and could be argued both ways. Too risky to go with b) given the potential consequences for illegal eviction if it turns out to be the wrong call, with an occupier who is vigorously asserting their 'rights'.

westminster
10-03-2010, 23:37 PM
Not if you are working to my mother-in-law's system of quantification, in which 'nearly a pint of milk' (in her pancake recipe) actually meant one and a quarter pints, and 'nearly a yard', about eighteen inches.

I'm afraid I don't include mothers-in-law in my assessment of probabilities. Or is it mother-in-laws? I don't care because they are all psychos AFAIK.

Lawcruncher
11-03-2010, 07:00 AM
Whether a tenancy or licence you cannot evict without a court order.

jackboy
11-03-2010, 09:40 AM
Does it not make a difference that they're renting for free? It seems really unfair.

I have a portfolio of houses and some rents cover the mortgage and, recently, some don't and have to be subsidised by me. Rent doesn't have to be more than the mortgage payments unfortunately.