Help! Let to niece and now I need house back

[amygroom]

Please help! I seperated from my partner last year and left our family home. He subsequently let out the house to his niece and her children. They signed an agreement but he has no copy of it. She has claimed housing benefit but not declared that they are related. She also has a partner living there who she has not declared! The benefit doesn't cover the rent and we are paying out for the mortgage. I would like her to move out so that I can move back in but the council have told her to stay put.

Have we got any rights at all??? This is the biggest nightmare!

[Mortitia]

Hello there,

A few questions to clarify things in hell.

The fact that you are both paying the mortgage suggests you are joint owners or tenants in common?

Does your ex want the niece to move out and let you move in - this is not clear?

Does your lender know that the place is rented out?

Did your ex use a proper tenancy agreement or just literally a piece of paper eventhough it is lost. Or is he just saying that?

You could report the fact of boyfriend living with neice to the social but they will only stop her benefits which will put things in a worse position as she will not be able to pay any part of the rent. He is a bit irrelevant really.

Seems you will need to issue a Section 21 to gain reposession but you and ex will need to be in agreement. It will take time. You are bound to get more replies later so hang on and answer my ?? to giv a fuller picture.

Mortitia

[amygroom]

Hey thanks for your reply!

We are both joint owners and both in agreement that she should move out and I should move in. He doesn't want to move back there. There was a proper tenancy agreement but he didn't keep a copy. The tenant has a copy as do the social.

Our lender doesn't know that the place is rented, as it was just family we didn't see the need at the time. Plus it is an ex-council property and not supposed to be rented.

We know about issuing the section 21 but the social has said they should ignore it and wait for us to take them to court. We are worried that the lender will then find out and we will all get in trouble.

Is the tenancy agreement still legal if only one owner signs it? What about if the mortgage lender doesn't know? Can it become void? Or can we be prosecuted? I am very worried about this mess and would avdvise anyone NOT TO RENT TO A FAMILY MEMBER!!

How long could this process take? I need to move back next July. Should I start eviction now???

[SPEEDTWIN]

So you dont have a copy of the AST. Do you know the dates on it to serve section 21 and which one. It is fairly straight forward to do the process yourself and if it isnt defended (they shouldnt if CORRECTLY served) you wont even have to go to court. I cant see how the BS will find out about it.

SECTION 21 2 MONTHS NOTICE

IF T DOESNT MOVE OUT APPLY TO THE COURT AND GET HEARING 2-5 WEEKS LATER APPROX (£150)

tTENANT MAY HAVE MOVED OUT BY THEN IF NOT WILL NEED A COURT BALIFE (ABOUT£80)

[amygroom]

Thanks I was hoping it was as simple as that. Was just getting worried in case it didn't run that smoothly! I think they will move out but just been told to stay and wait for eviction so that council will rehouse them. Otherwise they will be classed as intentionally homeless. What a hassle.

thanks for your help.

[GPEL]

Was a deposit taken? If it was, taken after April 07 and not registered, this changes things re the 21.

[amygroom]

No deposit was taken. They have always paid rent in arrears.

[amygroom]

Anyone else any advice on this? Also wondering where I stand on carpets. There were some old carpets in the house when tenant moved in, but she ripped them out (with permission) and replaced them with new ones. Now she says she will take the carpets with her if we make her leave, leaving the house with no carpets at all. Is she within her rights to do this?

[SPEEDTWIN]

Themost important thing is to get your property back.

In regard to the carpets was a inventory done? If not you will have trouble making any sort of a claim. If there was one and as there was no deposit i suppose you will have to go down the small claims route but you will need at least 2 quotes for a similer type of carpet. Also there is a good chance the court will take in considaration wear and tear and how long the original carpet were there.

[Mortitia]

You don't actually think she is going to move out and leave it in pristine condition do you!? LOL

Expect trashing of some sort then anything else will be a bonus and if you get off with just 'no carpets' be thankful.

Like Speedtwin says getting posession is the most important thing hopefully with house in one piece. Your insurers will not be intereted in any claim since you probably haven't told them the place has been rented out so just pray there is not a fire or anything ghastly.

[amygroom]

They won't trash the house because we still owe money to her grandparents for some work that was done on it. If they trash it then they won't get their money back! The carpets are the only issue really. Will just have to move them out a month earlier so that I have time to replace them before I move in.

[Mortitia]

Crikey, what a mess! Truly family hell!!

[amygroom]

New update - niece is now saying she won't move out as she doesn't see why she has to and she has nowhere to go. She wants the council to rehouse her. Will we need to go to court in order for them to do this? Can we go to court without a copy of the tenancy agreement?

[Simon Dewsberry]

You would be well advised to seek proper legal advice because this situation is far from straight forward .......Under the circumstances she is not going anywhere due to waiting for council rehousing ......which is dull, if not mental........as all she has to do is relocate another prop and start freesh LHA claim on it ........does she know this ??

I would offer her £500 to get out and move somewhere else because it is going to be a nightmare to sort this mess and prob cheaper to stump some cash and cut your losses .............?

This Tenancy has not been set up properly, run properly ..admin is poor and you appear to have broken a lot of "rules"...this is going to bite you on axxe quite hard otherwise

The Rodent

[Trenners]

Hi,

I agree with rodent - offer her £500 to leave. The reason she cannot move (without the Council's help) is because, I guess, she does not have a Security Deposit to create the new tenancy. The Council are advising her to stay until you get an eviction order (which is a delaying tactic) so the quickest way to resolve this is to help her to leave peacefully.

£500 and, perhaps, an offer of helping her move into her new home (by providing some removals assistance) is definitely the way forward.

Good Luck,

Mark

[amygroom]

Hi,

I agree with rodent - offer her £500 to leave. The reason she cannot move (without the Council's help) is because, I guess, she does not have a Security Deposit to create the new tenancy. The Council are advising her to stay until you get an eviction order (which is a delaying tactic) so the quickest way to resolve this is to help her to leave peacefully.

£500 and, perhaps, an offer of helping her move into her new home (by providing some removals assistance) is definitely the way forward.

Good Luck,

Mark

[amygroom]

Thanks for your advice. Am i right in assuming that a Section 21 notice will not stand up in court on this occassion as there is no copy of the tenancy agreement? If we could get a copy of it would it be straightforward? Thanks again.

[J4L]

To take court action there 'seems' to be a need for a copy of the original (or follow-on) AST's.

I have just found this on the Ministry of Justice site.

Under Part 2 - Conditions I found this highlighted below in Red

55.12 (1) The conditions referred to in rule 55.11(1)(b- are that –

(a) the tenancy and any agreement for the tenancy were entered into on or after 15 January 1989;

(b- the only purpose of the claim is to recover possession of the property and no other claim is made;

(c- the tenancy did not immediately follow an assured tenancy which was not an assured shorthold tenancy;

(d) the tenancy fulfilled the conditions provided by section 19A or 20(1)(a) to © of the 1988 Act(4);

(e) the tenancy –

(i) was the subject of a written agreement;

(ii) arises by virtue of section 5 of the 1988 Act but follows a tenancy that was the subject of a written agreement; or

(iii) relates to the same or substantially the same property let to the same tenant and on the same terms (though not necessarily as to rent or duration) as a tenancy which was the subject of a written agreement; and

(f) a notice in accordance with sections 21(1) or 21(4) of the 1988 Act(5) was given to the tenant in writing.

I'm just advising a LL on a similar case and MY way of thinking is if you can prove that they have been in the property for longer than 6 months (fixed period) and no further AST was signed then this is sure to be periodic and that there MUST have been a written agreement.

Now I'm unsure if this will work with the judge but we're going to try for it anyways and see if he strikes it or not.

To answer your second question, Yes, it would be more straight forward if you have the agrrement.

One other thought in obtaining a copy of the original AST, Call the HB department and ask if you could get a copy of it, thus making sure you serve the section 21 on the correct dates and have it to serve s21 notice.

Plus I have a feeling that the tenant will have to produce a copy of the agreement for the court also to argue their side if needed. I'd write a letter to the court explaining the situation.

[Simon Dewsberry]

I'd write a letter to the court explaining the situation.

I'd give them a call ..............you could wait forever for a response !!!

But only if £500 does't get them out!

The Rodent

[Preston]

Hi

This does sound like hard work for you. But it is important to remember that the absence of a written tenancy agreement doesnt mean that you cant get possession, just that you cant use the accelerated procedure.

It seems to me that there are two key questions:

a) there is either a tenancy in place, or there isnt. The tenant is not likely to argue the latter, because it lessens her security. And from what you have said the evidence seems clear that there is an AST in place (shes paid rent on a regular basis and has had the property to herself)

if this is the case, there is either a written agreement or there isnt. If there isnt, a six month AST is implied by law. The start date could be relatively easy to work out - what date did they move in? This is the kind of evidence a court will look at if it gets that far. If you do all you reasonably can to agree with the tenant what the start date was, and do this in writing, it will be difficult for them to argue anything to the contrary at a later date. And if there is a technical breach in a section 21 notice as a result of any confusion at this stage, the court has the discretion to waive such a breach if it is reasonable in all the circumstances to do so. If the tenant refuses to agree simple information such as the tenancy start date, the court may well find in your favour on this point.

So, in brief, as other contributors have said, you will need to:

a) get a copy of the written agreement if it exists or

if not, agree or attempt to agree with the tenant what the tenancy start date was, in writing

c) issue the section 21 notice (assuming at least 4 months have passed since the tenancy start date)

d) make an application for possession once the section 21 notice has expired

How long the latter takes will depend upon waiting times in your local county court, your local court office may be able to advise on this.

On the issue of your tenants waiting to be evicted, this is quite normal. They cant just up and move somewhere else and make a fresh homelessness claim from the new accommodation without running the risk of prejudicing their claim, particularly if by doing so they put themselves in an even less secure position.

So, all in all, your position is quite sortable, it may just take a while, but if you have till next July that should easily be enough.

Good luck.