jasonmcs Posted September 22, 2014 Report Share Posted September 22, 2014 Hi all, I have read various posts but don't see a situation like mine, so any advice would be useful. I have had a tenant in a residential property - it has been a difficult tenancy and there are significant rent arrears. we have made some agreement about them, whether that is kept remains to be seen. This isn't the problem but provides background. The AST term expired in May 2014 so the agreement continued on a rolling month basis. The tenant has written a letter of notice to vacate the property and the end of this month (sept 2014). In reality they already have and are living elsewhere right now. My problem is that in the last 3/4 weeks they tenants mother and siblings moved into the property, I believe evicted from their own rental accommodation, and are now saying they will not be vacating at the end of the month with the tenant. Once the tenant has surrendered their keys on 30th do the mother and siblings then become squatters? They do not have my permission to live there. If not, any idea how I can get them out of the property quickly? I have lost an awful lot of moeny with this tenancy and the condition of the property is pretty disgusting - piles of household rubbish bags in the garden causing potential health risk, pets in the house with uncleaned mess where the original tenancy states there can not be any etc. Any help much appreciated. Link to comment Share on other sites More sharing options...
Mortitia Posted September 22, 2014 Report Share Posted September 22, 2014 I take it you and the tenant entered into an Assured Shorthold Tenancy at some time in the past and this is England and Wales? Never believe that a tenant will just leave when the say or write so. As I see it you have 3 courses of action. 1. Get the tenant to surrender the tenancy to you. Anyone at the property after that date is an illegal occupier and you can chuck them out on grounds of trespass. 2. Issue a Section 21 notice - this takes 2 full months notice from a rent due date then you have to apply for a court order. 3. Section 8 possession - if tenant is 2 months or 1month 1 day in arrears of rent you can start this 'accelerated procedure' - downside is that tenant can claim disrepair or suddenly pay up and case is scuppered. Option 1 will be quickest - are you in touch with tenant? If not Section 21 guarantees possession but 2 months wait + wait for court order. DO NOT ACCEPT ANY PAYMENT FROM THE PERSONS LIVING THERE CURRENTLY - THAT WILL INDICATE THERE IS A NEW TENANCY. Link to comment Share on other sites More sharing options...
jasonmcs Posted September 22, 2014 Author Report Share Posted September 22, 2014 Thanks for your quick response, Mortitia. Yes, there is an AST agreement in England. The AST term date expired in May 2014 and has been on a rolling monthly extension since then. I was originally thinking about your option 1, but I've been told that it's not straight forward and not necessarily trespass even if the tenant leaves (in reality she already has, she's living with her boyfriend elsewhere) because the tenant gave the other occupiers permission to be there and she won't be handing back a property with vacant possession. It's knowing that definition an likeliness of getting a court order based on it that I'm struggling with. I have not requested or accepted any payment from the non-authorised occupiers, in fact I haven't had any rent for the last 3 months from the legal tenant either! Link to comment Share on other sites More sharing options...
Mortitia Posted September 22, 2014 Report Share Posted September 22, 2014 I don't agree with what you have been told. Was subletting allowed in your AST with the tenant? If not then they are 'excluded occupiers' and can be asked to leave - giving vacant possession, The quickest way apart from surrender is go down the Section 8 route which you could start today. Link to comment Share on other sites More sharing options...
Grampa Posted September 22, 2014 Report Share Posted September 22, 2014 Here are my thoughts: 1 Serve a s21 now just in case your need to fall back on it at a later date. 2 The tenant has a tenancy and is responsible for the rent of the property until vacant possession is given back. 3 He has given a notice to quit (letter) in writing and if he doesn't vacate and give vacant possession on the date you can charge double rent (mense profits) 4 You can apply for a possession order on the basis of that accepted "notice to quit" . This is a similar process to the s8 court paperwork. 5 When the tenant gives you the keys get him to sign a surrender notice and call the police to say you have squatters which is a criminal offence now in residential property. 6 Or stake the property out after surrender and go in and change the locks when they go out. After all they don't have a tenancy. If it was me I guess I would first do/try 1, 5, 6 followed by 4. in that order. Link to comment Share on other sites More sharing options...
Mortitia Posted September 22, 2014 Report Share Posted September 22, 2014 Just 2 things - there is no such thing in law as a 'notice to quit' so in this case tenant offered to surrender tenancy or S21 or 8 is eviction and I think you mean 'mesne profits' Grampa? Link to comment Share on other sites More sharing options...
jasonmcs Posted September 22, 2014 Author Report Share Posted September 22, 2014 Thanks both for your help. Grampa - does 5 still work if the tenants mother (the unwanted occupier) is related to and was allowed into the house by the tenant, so no forced entry, and that they are still in the property at surrender (and therefore not a vacant property)? Link to comment Share on other sites More sharing options...
Mortitia Posted September 22, 2014 Report Share Posted September 22, 2014 Jason - 'the tenant' is the persons on the original agreement. They are the one(s) that need to surrender the tenancy. You have not answered - 'in the agreement does it allow the tenant to sublet' read it and tell us. Not all tenancy agreements are the same. If it says yes then she has a tenancy if not then it does not matter who she is related to she has no tenancy. Link to comment Share on other sites More sharing options...
jasonmcs Posted September 22, 2014 Author Report Share Posted September 22, 2014 Sorry, Mortitia, there is a clause prohibiting subletting: " The Tenant will...Not assign, sublet or part with possession of the Property " Link to comment Share on other sites More sharing options...
Mortitia Posted September 22, 2014 Report Share Posted September 22, 2014 Right, so that means whoever is living there who is not on the tenancy agreement is an excluded occupier with no right to be there. Link to comment Share on other sites More sharing options...
Grampa Posted September 22, 2014 Report Share Posted September 22, 2014 Mortitia to the steal a quote from Morecambe and Wise I had all the letters of "mesne" correct but not necessary in the correct order. Funnily enough I was talking to a relation of the script writer of that gag the other week. Regarding there being no such thing in law as a " notice to quit" I would have to disagree. I acknowledge a lot of people including some agents refer to a s21 as a NTQ which definably is incorrect. A "Notice of surrender" by a tenant would be used during the fixed term of a tenancy but a "NTQ" from a tenant is used during a periodic tenancy. "Notice to Quit" premises let out as a dwelling must be given at least 4 weeks before it take effect and it must be in writing(Protection of eviction act 1977, section 5 as amended) Though a landlord may accept an invalid notice see HACKNEY V SNOWDON 2001http://www.legislation.gov.uk/ukpga/1977/43/section/5 Also the Painsmith legal blog has a lot of info/cases on "NTQ" and sell a template for 7 quidhttp://blog.painsmith.co.uk/?s=notice+to+quithttp://www.painsmith.co.uk/product/Notice%20to%20Quit-%20Tenant Link to comment Share on other sites More sharing options...
jasonmcs Posted September 22, 2014 Author Report Share Posted September 22, 2014 Any view on Excluded Occupiers, Grampa? Link to comment Share on other sites More sharing options...
Grampa Posted September 23, 2014 Report Share Posted September 23, 2014 http://england.shelter.org.uk/get_advice/eviction/eviction_of_private_tenants/eviction_of_excluded_occupiers Link to comment Share on other sites More sharing options...
Mortitia Posted September 23, 2014 Report Share Posted September 23, 2014 Thanks Grampa for that update but although tenants/journalists et al often use the term 'notice to quit' it does not exist in law it is just a 'common' term. I have seen those Painsmith blogs before. Seem in this case the excluded occupier is wrong as J is not a live in landlord. The persons living their are squatters. Link to comment Share on other sites More sharing options...
Grampa Posted September 23, 2014 Report Share Posted September 23, 2014 I agree and would also lean towards the squatter angle and as previously mentioned that is now a legal offence for residential property so the police may get involved and kick them out.This may help but not sure if its up to datehttps://www.gov.uk/government/uploads/system/uploads/attachment_data/file/220062/squatting-circular.pdf Link to comment Share on other sites More sharing options...
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