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View Full Version : No written tenancy agreement: T in arrears and subletting



sailthealbion
24-03-2010, 23:19 PM
Hi all, I am new to this & hope im doing it all correctly. My problem started when my original tenent moved their father in. when the original tenant moved out they left the father in my property with no tenancy agreement. At first he paid rent & all was ok but he has now stopped paying rent & is sub letting a room to a couple who I have made contact with & have given me reciepts showing they have paid this man rent for my property but this man has not paid me a penny, he now owes just over £1000. I am now taking their share of the rent directly from this couple & they want to take the tenancy on but I need desperatly to get rid of this man as he is not wanted, not paying rent & also i have proof he is taking rent that does not belong to him which, as of today has been stopped. What id like to know is how can I legally get rid of this man? He has also caused alot of damage to the property & also im worried as to who is liable for the council tax that he is not paying. I am getting desperate as I cannot afford to go on like this much longer & dont have the funds for a drawn out cival court case.
Thank you so much in advance for any help/advice anyone can give me.
Regards
James

Snorkerz
25-03-2010, 08:50 AM
You can commence section 8 proceedings against him under grounds 8, 10 and 11. You could probably add ground 12 in respect of the sub-letting and ground 13 regarding the damage. (google PCOL) Only ground 8 absolutely guarantees possession, and for that the tenant needs to owe you 2 months rent when you serve the s8 notice AND when the matter comes to court.

The problem you have is that his tenancy gives him exclusive use of the property, and by accepting rent from the sub-tenants, you are in effect letting out part of the property that you have already let out to him. You can't rent the same property exclusively to 2 people. I suspect at best that the courts would set any rent you have received from the sub-tenants against the rent the tenant owes, meaning he would owe less than 2 months and therefore not be sufficiently in debt to warrant a guaranteed eviction.

Council tax is between him & the council, don't worry.

If the tenancy is no longer in it's fixed term, you could commence s21 proceedings. These would take slightly longer, are slightly more expensive but is a guaranteed possession.

You need legal advice regarding taking the sub-tenants rent as you may face action from the tenant for doing so.

P.Pilcher
25-03-2010, 09:28 AM
Unfortunately, by accepting rent from the couple, you have granted them an assured shorthold tenancy agreement with a fixed term of six months and they will be able to overturn a section 8 ground 8 action on that basis unless they themselves are two months overdue with their rent. Unfortunately as they have no written tenancy agreement there is no way of telling when the are two months overdue! As Snorkerz suggests, you really need individual legal advice about this one and you need to ensure that the solicitor you instruct is experienced in landlord-tenant law - like our legal experts and advertisers.

P.P.

Snorkerz
25-03-2010, 10:24 AM
As there are now 2 ASTs in force for the same property - ie Original Tenant (OT) and sub-tenants (ST) could the legal experts clarify if STs AST would be valid for Housing Act purposes, or would ST have to sue LL &/or OT for breach of contract?

I presume s8 action against OT would be feasible so long as whatever grounds were used, applied? I understand that bailiffs would not remove ST if called to enforce an order against OT, but that would not be a problem to LL who wants ST to stay anyway.

jeffrey
25-03-2010, 11:45 AM
There cannot be a reversionary AST. Only T in occupation of only/main home can have an AST/SAT: s.1 of 1988 Act..

Snorkerz
25-03-2010, 13:21 PM
There cannot be a reversionary AST. Only T in occupation of only/main home can have an AST/SAT: s.1 of 1988 Act..

OT is sill in residence but has sub-let a room to ST. Is:

STs AST with OT valid?

can

LL evict OT only using s8 g8 if LL has accepted rent from ST?

jeffrey
25-03-2010, 13:38 PM
1. Yes- if T occupies part as only/main home, that part's letting can be AST.

2. What T sublets cannot be T's AST (but could be subT's).

3. For this sublet part, L cannot use s.8 (ASTs/SATs only) or s.21 (ASTs only) but just common-law contractual rules.

Paul Gibbs
25-03-2010, 15:55 PM
So far as I can make out from the information you have given the chronology is as follows: -

1. You granted an AST to original tenants (T1).
2. They move their father in during the term of their AST.
3. T1 leaves but leaves father in the property
4. Father pays you rent, and therefore an AST is created between you and the father (T2)
5. T2 has now sublet a room of the property to a couple (T3).
6. T2 is not paying you rent
7. T3 has offered you rent and you have accepted this.

T2 is only allowed to sublet if the AST states this is allowed. The fact the subletting is not permitted in the tenancy agreement does not make the tenancy void.

I think you should write to T2 enclosing a section 21 notice (assuming his tenancy is now periodic, and any deposit is protected) and within that letter you should say that you have found out about the sublet, and that T3 have paid £* to you. You have accepted that payment by T3 on behalf of T2, and have applied that to the arrears he currently has.

By doing this you are probably accepting the subletting (and therefore could not use this as a ground for possession) but you are hopefully avoiding a direct tenancy with T3.

I seem to recall that once you have let out the entire premises to T2 you have no ability to create a new letting to T3 (although I would need to check that!).

You could also write to T3 providing them with a copy of your letter to T2 and telling them that once T2 is removed you would be prepared to offer an AST to them directly.

If you and T3 are in agreement then when you instruct bailiffs against T2 you should specifically state on the form that the bailiffs are not to evict T3.

jeffrey
25-03-2010, 16:01 PM
I seem to recall that once you have let out the entire premises to T2 you have no ability to create a new letting to T3.
Yes. T2's interest is exclusive possession, so L cannot create an inferior interest: only T2 can.

chris-sussex
25-03-2010, 16:08 PM
moral of this story... use an agent....

jeffrey
25-03-2010, 17:16 PM
moral of this story... use an agent....
Better: never use an Agent but ensure that you (L) know how to let properly. Not all Letting Agents have yet managed that.

Paul Gibbs
25-03-2010, 19:29 PM
Yes. T2's interest is exclusive possession, so L cannot create an inferior interest: only T2 can.

Therefore it seems easy enough to serve a section 21 notice and use the accelerated procedure. If you are not comfortable with completing the forms yourself, then you can instruct a solicitor to prepare the papers (it should not be too expensive, some offer a fixed fee service). Get a quote or estimate in advance to know where you stand. Also ensure that the solicitor knows what he is doing!!!

Preston
25-03-2010, 21:59 PM
So far as I can make out from the information you have given the chronology is as follows: -

1. You granted an AST to original tenants (T1).
2. They move their father in during the term of their AST.
3. T1 leaves but leaves father in the property
4. Father pays you rent, and therefore an AST is created between you and the father (T2)
5. T2 has now sublet a room of the property to a couple (T3).
6. T2 is not paying you rent
7. T3 has offered you rent and you have accepted this.



Based on this summary, it seems very likely that T2 counts as a resident landlord so far as T3 is concerned, so T3 is very unlikely to be an AST. He or she will be a licensee or a tenant and will be an "excluded" licensee or tenant if there is any sharing of living accommodation (such as lounge or kitchen) with the landlord (that is, T2).

When you apply for the possession you will need to make it clear that you believe that the tenant has a sub tenant or a lodger, that you have not authorised this arrangement.

Incidentally, I may have missed something but as you don't seem to have a written tenancy agreement for T2 I don't think you can use the accelerated procedure.

chappers2341
26-03-2010, 20:32 PM
moral of this story... use an agent....

No moral of this story is be sure who you are letting to and have an agreement with, and make sure that one tenancy is ended properly before creating another.
By accepting rent from the father you have created a tenancy with him and if he is still resident then the sublet couple are excluded tenants, of his, you cannot evict them but you can start eviction procedures on him

sailthealbion
07-04-2010, 14:21 PM
thanks for all advice everyone, its been invaluble Since my last post my situ has changed. The man or tenent I want out has agreed to go but after ive seen the state of the place i have decided i want them all out ( tenent had subletted ). my question is where do i stand if i am left with my tenents sublet? which of course i never agreed to/knew about until very recently.where do i stand legally? can i just tell them to go or is this also a court case etc. I just want my property back. also they have destroyed the boiler, it does not work & has wires & god only knows what hanging out & im concerned about the danger etc.. please guys, what can i do?
P.S I returned a cheque I took from the sublet when they offered me rent directly after advice from everyone here so as not to create a AST with the sublet.

Moderator1
08-04-2010, 13:42 PM
Two threads by the same member have been merged here. Please do not start a new thread if you merely wish to continue a previous discussion or report on subsequent developments. It can cause unnecessary confusion (quite apart from losing the connection with facts previously established or legal points previously explained).

Preston
08-04-2010, 23:17 PM
Your best starting point is probably to ask your tenant to give a valid written notice to quit to the sub tenant (or licensee). Exactly how that notice should be drafted will depend upon the exact status of the sub tenant. For example, if (as I suggested in my earlier post) your tenant is a resident landlord with regard to their sub tenant, then you need to establish whether the sub tenant is excluded or not. If you search on resident landlord lettings you will find a little detail on this issue.