Tenant has sublet the flat, can i evict?

[venshan]

Hello,

My daughter has a flat she rented out to a tenant over 2 years ago which turned into a periodic extension in in January. Now the tenant on the tenancy agreement has not paid the rent for 4 months and we have now found out they have rented it to a Polish family 2 weeks ago. Our tenant is not picking up the phone and i went to see the new family yesterday who informed me that they have paid the old tenant over £2000.00 so are not going anywhere. They also said as the deposit has not been registered there is no action we can take. 

So the question is as they have no signed tenancy with my daughter can we evict them asap? Would i be able to call the police and have them removed as squatters or do we have to serve a section 8 to the old tenant and wait 14 days before going to court? The new family also told me that they do not have any signed tenancy agreement with our original tenant. 

I did try and explain to them that my daughter can wait 2 weeks so they can find another property but they are not interested and think we can take no action against them.

Any advice would be gratefully received. 

[Mortitia]

What does it say in the original tenancy agreement about sub letting?

Return the deposit to the original tenant immediately and get a receipt. (did you mean that original tenant did not have deposit protected?)

Report the sub let (if illegal) to the local authority and police as fraud.  LA have a 'rogue landlord' officer who may intervene.

Then issue a Section 21 notice and serve it by posting from 2 separate post offices 1st class mail and get the free certificate of posting. Do not sent this to be 'signed for'.

Also issue a S8 notice on grounds of over 2 months rent debt.  Read up on both these notices on the internet.

The section 8 can come to court way before the S21 which needs 2 months to pass.  Upside of the S21 is that the Poles will be evicted along with the original tenant.

Make sure you accept no rent from the Poles whatsoever or that will create a new tenancy.

Your daughter is not fit to be a landlord - no deposit protection (maybe) and allowing unpaid rent to get out of control!

 

[Grampa]

I agree with the above.

My understanding of these type of situations is you treat the tenancy as if the original tenants are still there and serve both a S21 and a S8 on the original tenants at  the address and under no circumstances acknowledge the sub-tenants as tenants or take any money from them.  

In fact I would even go as far as not having any dealing with them at all.

As it appears your daughter is inexperienced as a landlord she needs to get a specialised solicitor who deals with housing law to serve these notices and start the eviction process.

DO NOT USE A HIGH ST SOLICITOR UNLESS THEY SPECIALISE IN HOUSING LAW. Many we say they can do it for you but they will muddle through without any sense of urgency.  

[Melboy]

Agree with all of the above but just a thought...................

If the original tenant has vacated the flat for the long periodof time that they have are the Polish now classed as squatter's and can be removed by the police?

If the Poles have paid this tenant £2000 that is their look out and not the Landlord's?

I hope your Daughter manages to resolve this problem but as previously said she should give up any idea of being a landlord in the future especially when over 4 months have passed with no action being taken against the tenant and that should have started long before it has come to this situation.

[Carryon Regardless]

If there was no written tenancy agreement from the outset then there can't be a restriction cited to say that the sub let isn't legal.

It may well transpire that the Poles have a legal right of occupancy given by their LL (the original T).

Could this become more complicated that stated so far?

[Richlist]

The OP has not suggested there is no tenancy agreement between her daughter and the original tenant. She has said there is a tenancy agreement which is currently periodic.

But with no deposit protection it begs other questions.....is there a gas safety certificate, are there outstanding repairs Tec ?

[Carryon Regardless]

OK so reading agsain,

it would seem that there was perhaps a 12 month AST, that rolled into a periodic in January this year??

We are still unaware of any relevant terms within that agreement. A restriction to sub let is fairly standard though. As we know all fair terms within the original AST remain applicable during a susequent periodic tenancy.

As I read the comment about the deposit I would have thought that the deposit in question was from the Poles to the original T (their LL), as unless this is a conspiracy againt the OP's daughter the Poles would have no need of knowledge regarding any original tenancy and deposit. I have considered that here may be a set up designed to take further advantage of an unwary LL (the daughter) than she is likely to see.

Even so the Poles have been granted a right to occupy this to my mind doesn't catagorise them as squatters. I don't imagine the Police would have interest unless the Poles claim harressment or illegal eviction. Any claim, to my mind, is now between the daughter and 'her' T.

I do think this has value as a debate as any of us could be caught out this way. Taking no action for 4 months has no relevance to that, in my mind.

 

 

[venshan]

Thank you for the advice.

Yes we did have a ast with the original tenant and the deposit was registered with dps. All the safety checks are up to date as that is done by British Gas every year. 

The original ast does state that the tenant cannot sublet without written permission which they did not get.

The reason my daughter did not realise it had been four months is that she has been abroad teaching disadvantage kids English abroad so she took it for granted the original tenant would pay as all had been ok till before she left.

I have a meeting with the polish chap tonight so will make sure not to take any money from him. 

Just was not sure if we can tell him that he has no rights and he is a squatter as he did not sign anything or pay any money to the correct landlord(my daughter)

[Richlist]

I wouldn't be making any contact with the Polish person(s).

Your daughters issue is with her legal tenant(s) who are in breach of their tenancy agreement.

Use the advice already provided regarding s21 & s8. It might be better for her to employ a company such as Landlord Action to deal with it on her behalf to ensure its done quickly and as efficiently as possible. A quick search of Landlord Action will provide all the details you will need to start the process.

[Carryon Regardless]

Totally agree, no contact until you are absolutely sure of your position. That is know your strenghts, powers and vulnerabilities first.

As you (well your daughter) might be part of a set up more than you can be aware of yet consider the deceits that you might fall for during a face to face. Our police and courts don't generally sympathise with the evil LL.

We are hopefully a help but as said it is likely you need some specialised advice.

You might even consider options such as paying the Poles off, or even taking them over as T's. A caution in either scenario is to consider the possibilty of the original T reappearing and claiming illegal eviction.

 

[Mortitia]

Get a possession order first. Have as little contact with the Poles as possible is my recommend and I would not take them on as tenants as previous tenancy is still in force and not surrendered

If you get S21 posse.ssion by Form N5B then the Bailiff will evict EVERYONE at the premises and that will solve your Pole problem. So that means 2 months notice, wait for N5b to come to court + wait for the bailiff or appoint High Court Enforcer.  If going for latter then make sure you ask judge at N5b hearing for consent to apply to the High Court for the Enforcer.

[Chestnut]

If you really feel obliged to meet the Polish occupiers, I would advise that you only very briefly explain that you sympathise with their position but cannot say anything more at this stage because you are taking prescribed legal action against your 'official' tenants over their breach of agreement.  STOP There! Do not disclose details! Least said - soonest mended.

As above, your priority is to regain possession through court.  By all means consider within yourselves some future arrangement for Polish people but DO NOT Suggest Anything to them until tenancy problem is resolved.  Remember that currently your property is in possession of your tenants, not yourselves.  You are in no position to offer it to anyone until you have possession.

Plenty of good advice above!   Apart from not monitoring rent payments (I too have learnt hard way!) your response to earlier doubts indicates you seem to have run tenancy correctly to best of ability.

[Melboy]

From what you have said Venshan you have a clear cut case to proceed. Good luck and please keep us informed of your progress.