the forge Posted July 18, 2011 Report Share Posted July 18, 2011 Hi All I am new to this so would value your help on this matter. I rented out a property through an agency in January 2010 to 5 males and a female. Two days after they moved in they received a letter from a firm of solicitors advising them that my bank was to take possession. Being in South Africa I had not realised that the agency were not paying the money into my bank account. The bank got a suspended possession order and then found out attempted to evict tenants as the money was still not being paid, Fortunately one of the tenants dealt with the bank and the bank agreed that if they pay the money direct to them they would not repossess. A year on I tried to move in a friend into the property - there is no tenancy agreement. Reluctantly they have allowed her to move in. my questions are as follows.. If the tenants refuse to pay the rent with no tenancy agreement in place what rights do I have If my friend moves in what rights does she have if they try to kick her out. can they stop her moving in before hand If I wanted to get them out without an agreement how would I do so is it easier with or without a tenancy agreement. I think I may end up having problems no with the tenants. The house is not an HMO and I have 5 males living there would this help get them out Thanks The forge Link to comment Share on other sites More sharing options...
Mortitia Posted July 18, 2011 Report Share Posted July 18, 2011 What a mix up! When the agency found the tenants are you sure no AST or agreement was signed or do you mean you personally do not have a copy? Was a deposit taken and if so where is it? Is the property in England or Wales? Even if no paper agreement there is a verbal agreement in place and the existing tenants have rights. Does the friend you have moved in have an agreement? - it would help if she did because if you are using this as a way of getting possession the tenants could call this harrassment. Also will the friend be causing overcrowding. The tenants would have every right to exclude her. You will be able to gain possession eventually and this would be advisable under Section 21 (read up on this) but you must account for any deposit and make sure it is protected first. Since you are so far away I would consider using a specialist landlord and tenant solicitor. Normally if tenants don't pay the rent you can after 14 days apply for a Section 8 to move towards possession but the trouble with this is that when the case gets to court if the tenants pay up the case becomes void. S21 will guarantee you possession. Don't expect a speedy resolution. Mortitia Link to comment Share on other sites More sharing options...
Grampa Posted July 18, 2011 Report Share Posted July 18, 2011 5 Unrelated males and a females DOES make it a HMO and believe you cannot use a section 21 if it isn't registered correctly. Link to comment Share on other sites More sharing options...
Mortitia Posted July 18, 2011 Report Share Posted July 18, 2011 Big trouble all round then! Mortitia Link to comment Share on other sites More sharing options...
brettbutcher Posted July 18, 2011 Report Share Posted July 18, 2011 Wow..! Yes a mess indeed. Sorry, but a lot of this doesn't add up. I'm not clear how you say you rented it out 'through an agency', and then that there is no AST in place. You then go on to say that they were handling the payments for you, so there must have been some form of management involved. So, no AST? How come? Even if there was one and it had expired it would of course default to a periodic tenancy. .. and yes, the deposit, where is it? Was it registered? I am also amazed that the bank would have taken the rent directly from the tenants - especially in the absence of a tenancy agreement. Or did you mean the tenant negotiated and the agents now pay the bank? The 5 males.. are they all fathers and brothers then with each other? Looks like a HIMO to me! What makes you think it isn't? Is it split in separate apartments? (Remember they can't share anything except corridors). Re your friend. Yes absolutely they can stop her moving in. As Grandpa said, even if a tenancy agreement doesn't exist in writing, the people in the house are tenants under the law and will still have the right to possession and 'quiet enjoyment' which basically means the right to live there in the whole property without interference.. that includes moving more people in .. Again, difficult to comment properly without understanding more about the property, its arrangement and what has really gone on. So, if you did use a reputable agent, and don't have an AST and they didn't make you aware that its a HIMO (probably).. then I think your agent needs to take a good hard look at their professional indemnity cover as a claim against them comes winging its way in from you . If you did/do use an agent to get them in and collect the rent, then I suggest you could try talking to them and encourage them to sort out the mess for you (free of charge) since they were obviously negligent if they didn't set it up properly. If they refuse to help, your next stop is their professional body (ARLA, NALS, RICS?) - or were they not members.. and if that's the case then they probably won't have PI cover either. I think the folks on this site can help you but the circumstances surrounding this need a bit more clarity. But I would agree with Mortitia, a specialist solicitor will take you through the (time consuming) process of getting it back in order. By the way.. there's the tax situation. You are overseas, but are you resident overseas for tax purposes and do you have an HMRC overseas landlord reference number? If not, your agents (or your tenant)s should be withholding tax and paying it over quarterly to the inland revenue. (I know, a real pain in backside, but don't shoot the messenger . Good luck.. Link to comment Share on other sites More sharing options...
Carryon Regardless Posted July 18, 2011 Report Share Posted July 18, 2011 It seems you have good enough communications with a T to understand the approach by the bank, and even to have this T negotiate with the bank (although this maybe isn't your choice). You don't have understanding of the activities of your bank account, and the lack of mortgage payments. You would like a friend to move in / or has, that's unclear. There is written tenancy agreements or not, unknown. Not important as there are tenancy agreements by default, written or not. The bank were threatening to take possession due to lack of payments, as is very reasonable. They now deal direct with the T/ T's, they are effectively managing this property. Have they taken possession ? I don't comprehensively understand the legal processes involved for this as I pay my mortgages but it's possible here that the affair had gone beyond T and L, with you as L anyway. Link to comment Share on other sites More sharing options...
Mortitia Posted July 18, 2011 Report Share Posted July 18, 2011 So guys do we think this is a Troll posting? I do. Mortitia Link to comment Share on other sites More sharing options...
the forge Posted July 18, 2011 Author Report Share Posted July 18, 2011 Hello again yes an AST was drawn up by the agency however this was with 5 males and a female (the female and a male were a couple) 5 of the tenants moved out and the remaining filled the rooms to ensure the rent was being paid. I agreed to this. There is no deposit in place as the agreement with the 3 parties (myself agency and tenants) ended early and the deposit was paid back to them I never took a deposit off them and have not met any of those living in the house. The property was originally my home and I did not purchase using a buy to let mortgage. When the chief tenant spoke with the bank he suggested to them that they became house sitters as they were told that as the house No I am not a troll (whatever a troll is) I am just a very concerned landlord who rented out his private home and now feels he could end up losing it. I am very grateful for any information you can give me. Thanks again Link to comment Share on other sites More sharing options...
the forge Posted July 18, 2011 Author Report Share Posted July 18, 2011 The tenancy agreement was originally from 4th January 2010 to 4th January 2011. The tenants sent me a tenancy agreement that they all signed a copy of the one they got from the agency a week ago. Does this now change anything. Can they now refuse my friend moving in. Hope this answers all questions. Link to comment Share on other sites More sharing options...
brettbutcher Posted July 18, 2011 Report Share Posted July 18, 2011 When you said you agreed to the change of the tenants, did you do it in writing? Was the agent still involved at this time? I ask because you said they 'weren't paying you'. Hence I assume they had some form of management roll. If you agreed to vary the tenancy (in writing or not - thats an evidence issue), the tenancy is still valid.. and probably in a periodic state. You have been either misled by your agent, naieve, unlucky or all of the above. But it seems to me then that you probably still have an AST in place albeit not modified correctly with a deed of variation.. although it doesn't really have to be. As long as all partied agreed to the change in the tenancy. http://en.wikipedia.org/wiki/Troll_(Internet) for a definition of Troll.. yours seems like that because is seems a bit unbelievable and you seem to wish to play your cards close to your chest. You still haven't talked about the deposit, the agent (were they managing?), the himo issue, the tax etc. You are effectively anonymous so if you want the help you claim from this forum, I think you need to be more forthcoming about the situation. How you got into the situation? - Did you not tell the bank you were planning to let it out? Another thing the agent should have checked tbh.. What was the agents role? Where was/is the deposit? Why 'you didn't notice' not being paid? Link to comment Share on other sites More sharing options...
Carryon Regardless Posted July 18, 2011 Report Share Posted July 18, 2011 No BTL mortgage, or no mortgage ? A bank giving such advice, would this ever be considered likely or reasonable. Why do the bank have involvement here, as you hint, there is only rent payment issues. No concern of any bank. So far the confusion becomes a greater confusion, I see to unravel the situation for understanding will become many pages of requiring clarification from you. By then no one will remember the points of importance as they unfold, if you are able to explain ? You need good legal advice, I suspect there are no simple solutions here anyway. T's , squatters, guests, never heard of a house sitter unless the owner is on holiday. I suggest you scrap this thread as a lost cause, if you have interest (and if others will have) and are able, go again listing the events chronologically, without emotion. To show who when and what, male /female no matter. i.e Property owned or style of mortgage, T's 1 to 5, individual contract, or joint tenancies. Agency acting in what capacity, and from when till when. Deposit taken / returned, how documented. This is gonna become a novel, and if you ask for bank details to be sent to S Africa so we may help you with you're $2.5 million inheritance save yer breath. Link to comment Share on other sites More sharing options...
Melboy Posted July 18, 2011 Report Share Posted July 18, 2011 This entry from Brett sums it all up for me when I read this at 07-30am today. My thoughts entirely......and a few more! "You still haven't talked about the deposit, the agent (were they managing?), the himo issue, the tax etc. You are effectively anonymous so if you want the help you claim from this forum, I think you need to be more forthcoming about the situation. How you got into the situation? - Did you not tell the bank you were planning to let it out? Another thing the agent should have checked tbh.. What was the agents role? Where was/is the deposit? Why 'you didn't notice' not being paid"? I shall not not comment any further but follow the story with interest. Mel. Link to comment Share on other sites More sharing options...
the forge Posted July 18, 2011 Author Report Share Posted July 18, 2011 Hi all Here is the events as they happened. Jan 04 2010 Through an agency 6 tenants move into house paying a deposit AST completed and signed by all tenants runs from 04/01/2010 to 03/01/2011 Jan 06 2010 Tenants receive a letter from solicitors acting for Bank advising them that bank intends to take possession. Court date set for 28/01/2010 Jan 28 2010 Bank receive suspended possession. May 05 2010 Bank sends eviction notice to tenants giving 14 days to move out Bailifs to turn up at end of time May 2010 Tenant speaks to bank and solicitors and an agreement is made to pay the mortgage direct to them and the bank will see it as they are friends looking after property. Property not purchased under buy to let mortgage but on a residential one. May 2010 Both I and Tenant decide to split from agency and deposit returned to tenants. I am not holding a deposit. No issues from then Jan 2011 Lead tenant advises me that 5 of the 6 are moving out though he is staying I agree that he replaces them and rent stays same. Mar 2011 5 tenants move out new tenants move in NO AST completed or signed though Lead tenant puts them into contract with himself June 2011 I ask to move my PA into the house they accept. July 12 2011 At my request they sign a tenancy agreement date from Immediate to Until further notice though I am yet to return a signed copy to them. July 15 2011 they now tell me they do not want my PA to move in as they will lose one of their lounges and they do not want a female living in a house of 5 males. July 15 2011 it states on the tenancy the house is let to the 5 named persons only The house is a 5 bed house with 2 lounges. July 17 2011 discover that they have not paid mortgage due on the 28th June. Am not paying tax in the UK on any money nor have I had a gas certificate renewed this year and the house is not listed as a HMO. Can you help I dont want to have to fly back from South Africa to deal with this Where do I stand if i decide just to evict them and how would I do so Thanks John Link to comment Share on other sites More sharing options...
Carryon Regardless Posted July 18, 2011 Report Share Posted July 18, 2011 'Suspended' possession is beyond my knowledge. The bank have a right to call in the mortgage as you haven't adhered to the agreement of the 'residential' mortgage, or I expect requested their consent to let the property. A great concern I have is that as you are still not (I assume) in legal possession of the property you would not have legal right to offer any tenancy. Also don't recognise any agreement that is 'immediate and until further notice', had the bank agreed to the rental situation they would not agree to such a tenancy agreement. Usually lending sources will state AST's to be for a maximum of 12 months, which of course has intelligence for a LL also. Although you may be somewhat untouchable in S Africa, your UK assets are. It may be that your assets are greatly diminished by now any way as bank charges will effectively hit the equity. Granting tenancies on a property that you don't have possession of could mean you have liability to house tenants without the legal right to grant access. You need legal advice, your situation is not only a risk to you but also a risk to the accommodation of others, as has been seen. I suspect you are trying to realise what you can from the asset, in whatever form, prior to writing it off anyway ?? Link to comment Share on other sites More sharing options...
Melboy Posted July 18, 2011 Report Share Posted July 18, 2011 I'm sorry John but I can't take this seriously from you......... "Am not paying tax in the UK on any money nor have I had a gas certificate renewed this year and the house is not listed as a HMO". You ask.....Where do I stand? Well, for starters if just one of your tenants reports you for not having a current gas safety certificate in place you will be looking at a fine of up to £5000 OR a prison sentence should any of your tenants succumb to CO poisening and death. Best of luck! Mel. Link to comment Share on other sites More sharing options...
the forge Posted July 18, 2011 Author Report Share Posted July 18, 2011 Hi all Thank you all for your assistance in this matter. I am in fact the tenant and wanted the kind of advise that would be given to the landlord. I just wish one of you was my landlord and I would not be going through these problems. Everything that I had written was true though have never found out the real reason why we were served eviction notice by the bank All the best John et al Link to comment Share on other sites More sharing options...
Melboy Posted July 18, 2011 Report Share Posted July 18, 2011 Well, John I for one had my deep suspicions that you were not a bona-fide landlord because your initial story just did not stack up for me and I know for one a Letting Agency would have had more involvement that you were saying Mortitia who also thought you were "trolling" so I was not alone with my thoughts. The Bank have clearly made a property repossession order through the courts because your Landlord/owner has defaulted on repayments and has gone back to South Africa ? Mel. Link to comment Share on other sites More sharing options...
Carryon Regardless Posted July 18, 2011 Report Share Posted July 18, 2011 Ask as a T and you will still find sympathy. Good LL's are generally against abusive LL's, although your situation does not necessarily suggest your LL to be so. As T's you are entitled to 2 months notice by a section 8 or 21 notice. Your report is ambiguous but suggests you have had this. The bank seemingly have legal possession of the property, where does the owner figure in this ? Is he trying to give tenancy and collect rent ? If the bank perceive financial advantage by taking the property to auction they will likely evict occupants first. I would expect that as long as the bank can enjoy the revenues of rent and reduce the balance then they may be happy to run like this in the present economic climate. As to your rights, consult CAB, but I don't see you will have any if the Bailiffs arrive. Link to comment Share on other sites More sharing options...
Melboy Posted July 18, 2011 Report Share Posted July 18, 2011 Yes, a clear thought COR......I guess most, if not, unsurprisingly.... all of us on this forum are against bad landlords....I know I am so, yes, John you should have perhaps come clean on here with your problems as a tenant and you would have still received the right answers to your questions in a sypathetic manner. Mel. Link to comment Share on other sites More sharing options...
brettbutcher Posted July 18, 2011 Report Share Posted July 18, 2011 Sorry, you are still not being forthcoming enough.. an AST until further notice? Peerrrlease.! .. no gas cert? Really? Attempted reposession (you don't say why - breach of mortgage terms by (effectively) sub-letting will not normally cause a bank to re-posses). Every time, we tease out a bit more.. the more horiffic it gets! Sorry if thats dramatic but not doing the Gas cert and stuff like that is just not done! People have died and landlords have gone to jail. I can't decide whether to give up on you as a bad job or not.. last try Untill your new 'agreement' is signed off, the old one will still be in place, albeit with variations agreed verbally. So, you could just try and get them out under a section 21. However, there is no evidence of the change of tenants being agreed so that might cause a problem. But as I and others here have said to you on several occasions now you should really seek legal advice.. and for god sake get the gas certificate done NOW! Link to comment Share on other sites More sharing options...
the forge Posted July 18, 2011 Author Report Share Posted July 18, 2011 Thank you all very much. OK coming clean. All the above is true. I have no idea why the owners did not notice mortgage was being paid to be honest I think it is they who have defaulted when you see the amount of people looking for them and post from debt collection agencies. As housemates we are very concerned. They are trying to move their PA into the house which we don not want. I have been advised by a solicitor that if we don't want her we can refuse. We are going to look at doing this. The only tenancy agreement that we have ever had was signed by and from the agency that parted company with us over a year ago. Even if they haven't it ran out 6 months ago. I have pretty much copied out this agreement and all of us have signed it. I put from Immediate effect till further notice as I knew this would invalidate it. I have now phoned a plumber I know who is getting me someone to do a landlords certificate I shall deduct this from the rent. All the variations were done via email as I have never spoken to the owners since i moved in on the phone Thanks again John Link to comment Share on other sites More sharing options...
LLAW96 Posted July 18, 2011 Report Share Posted July 18, 2011 You dont have to go to a pigsty to know it stinks. Having said this and on the basis you are for real, if your lender obtained a suspended order and then instructed bailiffs then is follows the suspended order was breached as such the property belongs to the lender. Your tenants (for want of a better name) have no locus standi and therefore could not have made an application to court to prevent the eviction. Seems to me that your lender has possession and has chosen to let the occupants stay in possession until they have decided what to do with the property. First call should be to your lender (who are they out of interest) to confirm the position after that you need to obtain a copy of the order to see if there is anything you can do. Link to comment Share on other sites More sharing options...
LLAW96 Posted July 18, 2011 Report Share Posted July 18, 2011 oh dear just read the last few posts. Link to comment Share on other sites More sharing options...
the forge Posted July 18, 2011 Author Report Share Posted July 18, 2011 the lender is Yorkshire Bank I tried to attend court but a suspended possesion notice was agreed.. John Link to comment Share on other sites More sharing options...
Carryon Regardless Posted July 18, 2011 Report Share Posted July 18, 2011 You have possession as occupants, as this was granted under an AST those terms are still applicable as a periodic tenancy after the AST 'runs out', you are at no more risk because it has run out. Your efforts to renew the tenancy have no value and no need. If you could gain a new tenancy you would be assured till the end of its term but I don't see that happening. Any person staying in the property should be with your consent, anyone else will be a trespasser and if with the owners authorisation may well be viewed as causing an illegal eviction if this prohibits use of part of the property. The owner may be subject then to criminal proceedings. But does the owner have any rights here any way, it sounds like no as the bank have this now. The only reason the gas cert is your concern is for your own safety, you have no legal liability. You are doing the sensible thing though. Speak to the bank to try and understand their view on your future there. Up front dealing is most certainly the best way forward, hiding and hoping could mean one day soon the Bailiff turfs you out, no rights. Link to comment Share on other sites More sharing options...
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