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View Full Version : Section 21 served perfectly - but has a loop hole been manipulated?



templar018080
28-09-2011, 16:38 PM
Hi all,

I am a landlord and signed up a single tenant into an AST.

Tenancy is now in its periodic month by month state.

I need to sell the house so recently served a section 21 notice on the tenant (by hand delivering it, posting it through the door, and it being witnessed by a third party). All dates are correct etc and notice is set to expire on the 31st October 2011

So far so good, but here is where it gets interesting…

Now, I very recently learnt that the tenant has moved his partner in – i.e. an illegitimate tenant and of course she is not on the tenancy agreement.

Since serving the Section 21, he has claimed that he has now vacated the premises.

He has said that since my Section 21 notice was made out to him - it does not apply to the illegitimate tenant. Therefore I cannot claim possession since someone is living there.

I want to start Accelerated Possession, with the Courts, as soon as we get to 31st October, but what can I do about the illegitimate tenant? Does the section 21 apply to all occupants? I am not even sure weather he moved her in before of after the section 21 was served? Does this not linger on criminal, rather than civil? (at least it feels criminal )

Thank you :(nod):

PaulF
28-09-2011, 17:12 PM
Firstly the other person is not an illegitimate tenant but an illegal occupier, or there at the behest of the tenant. You must disregard this person and certainly do not take any rent from him/her.

You should continue to process your appication through the APP as normal as the trespasser has no legal standing. You should only address anything to the lawful tenant. When it comes to a bailiff eventually attending the property, he is allowed to evict any person he finds on the premises. You might find that no rent is being paid after 31 October by your tenant but as I say don't take money from anyone else.

westminster
28-09-2011, 17:14 PM
No criminal offence has been committed.

The 'illegitimate tenant' is not a tenant of any kind; she is the tenant's guest. This has zero effect on the s.21 served; your action is and continues to be against the tenant, and assuming you obtain a possession order the bailiff will evict whoever is living there, whether that's him and/or his girlfriend.

However, if the tenant serves/has served valid notice to quit (at least one month and also expiring at the end of a tenancy period), this will end the tenancy at notice expiry. After that point, you'd be entitled to treat any occupier as a trespasser and immediately apply to the court for a possession order.

westminster
28-09-2011, 17:16 PM
Firstly the other person is not an illegitimate tenant but an illegal occupier.
Assuming the tenancy is still in place, how is the tenant's girlfriend, living there at the tenant's invitation, an illegal occupier?

Editor
28-09-2011, 18:59 PM
In English law there are only four classes of occupier: freehold owner, tenant, licensee and trespasser. A guest would be an exception, but by definition this presumes (1) this is short term and (2) they are living with the tenant.
If the tenant no longer occupies then this is no longer his main residence so the tenancy is not an AST but a common law tenancy. Liability to pay Council Tax now reverts to the landlord.
The tresspasser (illegal occupier) has no right to be there (unless rent is accepted) and will be evicted by the bailiffs once a possession order has been obtained against the tenant, as has been said.

jta
28-09-2011, 19:07 PM
In English law there are only four classes of occupier: freehold owner, tenant, licensee and trespasser. A guest would be an exception, but by definition this presumes (1) this is short term and (2) they are living with the tenant.
If the tenant no longer occupies then this is no longer his main residence so the tenancy is not an AST but a common law tenancy. Liability to pay Council Tax now reverts to the landlord.
The trespasser (illegal occupier) has no right to be there (unless rent is accepted) and will be evicted by the bailiffs once a possession order has been obtained against the tenant, as has been said.

Is 'illegal occupier' the correct term? Should it not be excluded occupier?

Sorry if it's pernickety but using the word 'illegal' makes it sound criminal.

Editor
28-09-2011, 19:27 PM
In the way that Shelter define the term, "excluded occupier" (from the Housing Acts) this is where: The tenant (1)shares accommodation with the landlord, or
(2) lives in the same building as the landlord and shares accommodation with a member of the landlord's family, (3) is living in accommodation for a holiday, or (4) with agreement of the landlord occupies but does not pay any rent for the accommodation.

I think illegal occupier is a generic term which adequately describes a situation when an occupier does so illegally - ie, a trespasser.

A guest is a licensee much as is an hotel guest. A trespasser occupies without permission and can be someone that entered without permission (squatter), or someone that entered for one purpose (guest) but continues to occupy for another.

Illegal does not imply criminal, it can also be civil, or indeed any breach of rules, even on a football field.

Chemistry
28-09-2011, 19:56 PM
You may also want to consider whether or a not the "illegal occupier" is a sub tenant.

jjlandlord
28-09-2011, 20:14 PM
The tresspasser (illegal occupier) has no right to be there (unless rent is accepted) and will be evicted by the bailiffs once a possession order has been obtained against the tenant, as has been said.

There is no illegal occupier or trespasser since the person is there with the consent of the tenant, and nothing suggests that the tenancy has ended (AST or common law tenancy, the tenant is the one with exclusive possession rights).
The only thing I could see is that perhaps the tenant being in breach of contract if it stipulates that he must be the sole occupier.

OP should seek possession through the s.21 notice he served, if tenant does not deliver possession the bailiffs will evict everyone present at the property, as mentioned.

Chemistry
28-09-2011, 20:38 PM
No bailiff has the right to evict a person who claims to be a sub -tenant. I learnt this lesson the hard way - NEVER ACCEPT TERMINATION OF TENANCIES WITHOUT HANDOVER OF KEYS AT THE PROPERTY - ENSURE VACANT POSSESSION.

jjlandlord
28-09-2011, 20:56 PM
NEVER ACCEPT TERMINATION OF TENANCIES WITHOUT HANDOVER OF KEYS AT THE PROPERTY - ENSURE VACANT POSSESSION.

Handover of keys is not a must, but a deed of surrender only when vacant possession is delivered.

Also, regarding evicting a person left behind once the tenancy is indeed over (ie. a trespasser): LL can change the locks when said person is away.

westminster
28-09-2011, 23:45 PM
If the tenant no longer occupies then this is no longer his main residence so the tenancy is not an AST but a common law tenancy. Liability to pay Council Tax now reverts to the landlord.
The tresspasser (illegal occupier) has no right to be there (unless rent is accepted) and will be evicted by the bailiffs once a possession order has been obtained against the tenant, as has been said.
Sorry, but I don't agree with any of this. If there's a tenancy in place, (and it's irrelevant whether that's an AST or a common law tenancy) and the tenant has invited another person to live there, then that other person is not an 'illegal occupier' nor a trespasser, (regardless of whether the tenant is also occupying or not).

Editor
29-09-2011, 15:03 PM
Another perhaps more suitable term for this situation and instead of "illegal occupant" is "unauthorised occupant", ie someone "left behind’ in a tenancy following the departure of the tenant. The tenancy is still in existence although the tenant is no longer resident.

Unauthorised occupation is common and can cover a multitude of situations including unauthorised assignment and sub letting / exchange, people staying on following death of a tenant, residents / guests who have no right to succeed, children remaining after the parents have moved etc.

In all these cases the occupant is clearly not a tenant and has no tenancy rights. Following the landlord obtaining a possession order against the original tenant, all such occupants can be legally evicted.

templar018080
30-09-2011, 12:40 PM
Thank you all for your in-depth advice, it makes intelligent sense, and is very much appreciated.

From hereon, for ease of reference, I will refer to the legitimate tenant, on the tenancy agreement as [JOHN] and the illegitimate tenant or illegal occupant or unauthorised occupant as [JANE].

FYI: (Section 21 Notice was served correctly, hand delivered and witnessed, before 4:00 pm on the 31st September to expire on 31st October)


I have just learnt some disturbing news….


I have been working abroad for the best part of this and my wife has been taking the reigns with regard to sorting this out (she is also the landlady), and to my dismay I have just learnt that she signed the following letter to which she hand delivered, without my knowledge, 1 day before the Section 21 Notice was served on [JOHN].

She has only just come clean about it to me - here is the letter:



To [JOHN]

30th August

This is to confirm that [JANE] can take on the tenancy address as above, monthly rent is £XXX and the deposit will be £XXX.

I cannot write and sign a tenancy agreement with [JANE] until such time that the rent and deposit are agreed by the housing benefit department or whomever this is applicable to.

My condition on making a tenancy agreement with [JANE] is that housing benefit pay the rent of XXX to myself.

Please call me on 012 XXXX on your decision or write to my address as above.

Kind Regards

[SINGED BY MY WIFE]


There has been no response to the above letter.

Also... to my dismay... my wife hand delivered another letter to the property, a few days after the section 21 notice was served, with a view that the letter would be handed to housing benefit:



REF: [Property address] – [JANE]

To whom it may concern

5th September

[JANE] and I have negotiated the rent to be reduced to £XXX so as she may reside at the above property and make a contract with me. Please confirm in writing that the rent will always be paid to myself as this is [JANE]’s wish and her security of the tenancy.

Kind Regards

[SINGED BY MY WIFE]



...emoticon for shaking dipped head slowly...


Should I re-serve the Section 21 to nullify this last letter?

Or is it too late now… have we just admitted to a 6 month AST even tough there is no agreement?

If I press to Accelarted Possession with the original Section 21 notice in tow, then I fear these letters may be thrown into the defence pack, which will complicate things.

Any advice is welcome, as always, thank you :(nod):

jta
30-09-2011, 13:35 PM
I think you are going to have to start all over again.

Your S21 has to be invalid, it must give the tenant a minimum of two months notice before you can start possession proceedings.

The letters your wife wrote are, frankly, nonsense.

Until there is an actual AST in place then LHA will not happen, you might be able to speak to them but they will not do anything until you are committed. They will take no notice of your wife wanting the rent paid direct unless and until the tenant owes 2 months rent.

After you finish beating your wife read the stickies above and start doing it all properly.

templar018080
30-09-2011, 14:09 PM
Thanks JTA, I am of the same thinking.

Sorry guys - I made a mistake in my previous post - the Section 21 was served on the 31st August
to expire after the 31st October hand delivered, witnessed etc.

In my previous post I mistakenly wrote 31st September - silly me - that date does not even exist! :(doh):

So the S21 is valid, it's just weather my wife has nullified it with her writings.

My wife has always been a bit of a loose cannon, and just acts on impulse without thinking. I should have taken more responsibility of the property myself; after all, I know what she's like!

Snorkerz
30-09-2011, 14:40 PM
There is no concrete need for an AST document to be provided to the housing benefit people. What they would need is a proof of rent liability.

The alterations to the 2006 Housing Benefit Regulations which were introduced in section 2(8) of the 2010 Housing Benefit (Amendment) Regulations state:
(8) In regulation 96(3A)(b)(8 (http://www.landlordzone.co.uk/forums/#f00010)) (circumstances in which payment may be made to a landlord)—
(a)after paragraph (iii) add—
“or
(iv)the relevant authority considers that it will assist the claimant in securing or retaining a tenancy.”; and

In view of the word 'securing' it must imply that some sort of commitment to direct payment can be made before the tenancy begins.

Snorkerz
30-09-2011, 14:45 PM
This is to confirm that [JANE] can take on the tenancy address as above, monthly rent is £XXX and the deposit will be £XXX.

I am worried that this statement may be sufficient to convince a judge that John no longer has a tenancy and that Jane does. Even if you start with accelerated possession, I can see this requiring a court hearing to sort out.

westminster
30-09-2011, 16:38 PM
@templar018080:

Unless John's tenancy has ended, LL cannot grant a new tenancy to Jane.

John doesn't appear to have served notice to quit, so what evidence is there that LL and John have agreed a surrender of the tenancy?

What is the situation with rent? Assuming it falls due on the 1st of the month, did John pay the rent on 1st September?

templar018080
30-09-2011, 17:13 PM
Thanks guys

@westminster

[JOHN] has not served his own notice at all and like you say there is nothing to suggest that the tenancy has ended with John.
The impending notice of the Section 21 served on John will expire after the 31 October so this has to be the official end date for [JOHN] tenancy. In fact [JOHN] has said in correspondence that he accepts the Section 21 notice.

Yes that's right the tenancy and payment dates run from the 1st of each month, and [JOHN] did not pay his rent on the 1st September saying he has some "financial difficulties" after being made redundant. He says he will pay the rent soon though, but we’ll see.

Thanks :(nod):

westminster
30-09-2011, 23:47 PM
[JOHN] has not served his own notice at all and like you say there is nothing to suggest that the tenancy has ended with John.
The impending notice of the Section 21 served on John will expire after the 31 October so this has to be the official end date for [JOHN] tenancy. In fact [JOHN] has said in correspondence that he accepts the Section 21 notice.
A s.21 notice is not a notice to quit and does not end the tenancy upon notice expiry.

All that happens after the expiry of the s.21 notice on 31st October is that the LL is entitled to apply to the court for possession under s.21.

John can't 'accept' the s.21 notice - there's nothing to 'accept' because, in effect, it's simply a notice advising the tenant that the LL may apply for possession after expiry of the notice.

To end the tenancy, John must either serve written notice to quit or agree a surrender with the LL. Failing which, if LL wishes to unilaterally end John's tenancy, he must apply for possession on or after 1st November, obtain a possession order, and get a bailiff to execute it. Meanwhile, the tenancy will continue with John liable for rent.

And meanwhile, LL cannot grant (or offer to grant) a new tenancy to Jane.