eddieking Posted March 16, 2012 Report Share Posted March 16, 2012 Hi. Wondering if anyone has had simlar problem. Its a little confursing but the Tenant has left the house (he is the contract holder), his girlfrield is now in our house and will not leave. Who do we give the court eviction notice to? - is she a 'squatter' and what rights do we have to remove her from the property. The contract holder is still visiting the house periodically but seems to evade us. Just dont know what to do now......can anyone help????? - thankyou Link to comment Share on other sites More sharing options...
LLAW96 Posted March 17, 2012 Report Share Posted March 17, 2012 The girlfriend is not a squatter at this point. Please clarify the grounds you are seeking to recover possession under, for example are you saying there are arrears of rent, or the tenant is not using the property as his principal place of abode etc etc. Have you served notice if so what type. Link to comment Share on other sites More sharing options...
Grampa Posted March 17, 2012 Report Share Posted March 17, 2012 Also have you accepted any rental payments directly from the girlfriend and that could imply she has been given a tenancy. The contracts we use have a clause that states any person other that the tenant who pays (hands over) rental payments does it as a agent/representative for the named tenant. Link to comment Share on other sites More sharing options...
eddieking Posted March 17, 2012 Author Report Share Posted March 17, 2012 The girlfriend is not a squatter at this point. Please clarify the grounds you are seeking to recover possession under, for example are you saying there are arrears of rent, or the tenant is not using the property as his principal place of abode etc etc. Have you served notice if so what type. The couple separated over a month ago. He gave us verbal notice to quit and the notice period has elapsed. I then gave him written notice to sort of cover my tracks. He has no intention of going to live back at the property and she has no intention of paying any rent at all. He has moved elsewhere. We are new at this and I have no idea where to turn next. Link to comment Share on other sites More sharing options...
eddieking Posted March 17, 2012 Author Report Share Posted March 17, 2012 Also have you accepted any rental payments directly from the girlfriend and that could imply she has been given a tenancy. The contracts we use have a clause that states any person other that the tenant who pays (hands over) rental payments does it as a agent/representative for the named tenant. The girlfriend has never paid any rent at all and does not intend to and she is not named as a tenant either. Link to comment Share on other sites More sharing options...
LLAW96 Posted March 17, 2012 Report Share Posted March 17, 2012 Sorry you will need to provide some further information. Was there an actual surrender of the tenancy? i.e the keys were handed to you. What notice did you serve, when did you serve it, who did you serve and where did you serve it? Link to comment Share on other sites More sharing options...
snorkerz Posted March 17, 2012 Report Share Posted March 17, 2012 You need to either get written notice off your tenant, or evict the tenant (and she will be removed too). Your biggest problem is that if he chooses to, he can claim not to owe further rent because he has acceptance of his oral notice, but, if he chooses to he can claim to still have a tenancy, because you can not prove he gave notice. Once you have his notice, you can treat the occupier as a trespasser and get an eviction order quite easily. If you don't get written notice then you need to evict him. Problem is, you can't use section 8 or section 21 because this is no longer an AST. You therefore have to rely upon the specific terms of the tenancy agreement (not withstanding the fact that you will need a court order). Under what circumstances does the tenancy agreement say that the tenancy can be brought to an end? Link to comment Share on other sites More sharing options...
eddieking Posted March 17, 2012 Author Report Share Posted March 17, 2012 Yes, there was a surrender of the tenancy, he posted one key and left her the other, he was given one months notice which has now expired and it was served directly to him, He gave me verbal notice first of all and then I gave him written notice. He came over to my house to collect the written notice and told me that he would assist in helping this girlfriend find somewhere to live. Its all mixed up Sorry you will need to provide some further information. Was there an actual surrender of the tenancy? i.e the keys were handed to you. What notice did you serve, when did you serve it, who did you serve and where did you serve it? Link to comment Share on other sites More sharing options...
Carryon Regardless Posted March 18, 2012 Report Share Posted March 18, 2012 If you are confident that the property has been surrendered by the T, and you may be required to prove this, the occupier only has rights when inside. As you have a key when the property is unattended you may enter and prevent any ones return. No forced entry and no violence. The Police are likely to be called and often have a poor understanding so often will defend the complainant who claims to have been illegally evicted. It would be advantageous to pre arm yourself with documentation and legal references to demonstrate your legal position. While She has rights to her belongings within it would be a mistake to allow her to enter to recover, once back in She could stay. Link to comment Share on other sites More sharing options...
snorkerz Posted March 18, 2012 Report Share Posted March 18, 2012 Yes, there was a surrender of the tenancy, he posted one key and left her the other, he was given one months notice which has now expired and it was served directly to him, He gave me verbal notice first of all and then I gave him written notice. He came over to my house to collect the written notice and told me that he would assist in helping this girlfriend find somewhere to live. Its all mixed up The tenancy has not been surrendered by the return of the key alone - he has not provided vacant possession. If you have a written offer of surrender (ie written notice) than you can use that to obtain possession through the courts. You can attempt to evict based on his oral surrender, and his returning the key may help substantiate that, but there are no guarantees. You giving him notice is not sufficient - you can use that as a precursor to making an application to the courts for possession, so long as you have complied with the requirements of the contract (Housing Act no longer applies). Link to comment Share on other sites More sharing options...
LLAW96 Posted March 19, 2012 Report Share Posted March 19, 2012 An unequivocal/unconditional act of handing the key back is deemed to be a surrender by operation of law. The fact remains you have someone residing at the property with no rights of occupation (either statutory i.e via aplication under the Family Law Act 1996 or contractual). They are residing there without your permission or consent, the next step will be to serve them a notice to quit together with a notice to quit addressed to the occupiers. After the notice has expired deal with the occupants as tresspassers. If you are not sure of the procedure to be followed then instruct a solicitor as the process has many pitfalls. Link to comment Share on other sites More sharing options...
snorkerz Posted March 19, 2012 Report Share Posted March 19, 2012 unequivocal/unconditional act of handing the key back is deemed to be a surrender by operation of law.I disagree, Lord Justice Jacob in Artworld Financial Corporation v Safaryan & Ors [2009] EWCA Civ 303 clearly stated that the return of keys was not an unequivical surrender. Well he actually said it was equivical - but that's the same as 'not unequivical'. Link to comment Share on other sites More sharing options...
LLAW96 Posted March 19, 2012 Report Share Posted March 19, 2012 Fyldeboy The issue of a surrender is trite law see Bellcourt Estates -v- Adesina. An express surrender must be done by deed by virtue of s.52 LPA 1925. A surrender by operation of law occurs where a tenant and landlord do something which is unequivocal and inconsistent with the tenancy continuing. The basis of the act being that either party is estopped from claiming that the tenancy is still continuing. The case of Safaryan can be distinguished on the facts in that case it turned mainly on the issue of whether there was a repudiation or indeed surrender of the tenancy and the interrelationship between the two, the judge I believe finding that there was in fact a surrender. In this case we have a tenant who has surrendered his keys and a landlord who is happy to accept surrender with a view to getting his property back as soon as possible. What do you suggest the landlord does in order to obtain vacant possession? Link to comment Share on other sites More sharing options...
snorkerz Posted March 20, 2012 Report Share Posted March 20, 2012 Fyldeboy The issue of a surrender is trite law see Bellcourt Estates -v- Adesina. An express surrender must be done by deed by virtue of s.52 LPA 1925. A surrender by operation of law occurs where a tenant and landlord do something which is unequivocal and inconsistent with the tenancy continuing. The basis of the act being that either party is estopped from claiming that the tenancy is still continuing. The case of Safaryan can be distinguished on the facts in that case it turned mainly on the issue of whether there was a repudiation or indeed surrender of the tenancy and the interrelationship between the two, the judge I believe finding that there was in fact a surrender. In this case we have a tenant who has surrendered his keys and a landlord who is happy to accept surrender with a view to getting his property back as soon as possible. What do you suggest the landlord does in order to obtain vacant possession? I believe it would carry undue risk for the landlord to rely on keys alone, with no proof or the oral surrender. I have suggested he obtains a written surrender / tenants notice, in which case, as you suggest, he can treat the remaining occupier as a trespasser. I have also suggested that he can try to evict the tenant as a trespasser based on the oral surrender, but it would be difficult to convince a judge if the possession claim was defended by the true tenant. Failing that, he needs to terminate the tenancy under the provosions written in the tenancy, and as we don't know what they are, we can't advise. As you know, it is similar to a section 8 claim, but the 'grounds' are not as per schedule 2, they are as per the tenancy agreement. Link to comment Share on other sites More sharing options...
LLAW96 Posted March 20, 2012 Report Share Posted March 20, 2012 I understand your argument, but based on the limited information I would be happy to make the claim for possession and go before a judge. Quite simply I would want to get this before a judge as soon as possible because (1) the former occupant/tenant would have to show his hand if he was going to deny he had surrendered his tenancy and (2) in order to negate any potential application under s.36 Family Law Act 1996 because as night follows day if the current occupant seeks advice thats what she will do. Link to comment Share on other sites More sharing options...
Carryon Regardless Posted March 20, 2012 Report Share Posted March 20, 2012 This view is dependant on the T having ability to pay a successful claim, or a G'tor that could. Although the T may or may not have surrendered he has a responsibility to return the property in a vacant state. Instead he has installed a guest as occupier, possibly believing he has transferred the tenancy. This would effectively be a sub let, the T receiving rent or not is immaterial, it can't be reliably demonstrated either way. If there is belief that recovery can be achieved then sue, if not wait till the bitch is out and change the locks. Link to comment Share on other sites More sharing options...
Mikey74 Posted March 25, 2012 Report Share Posted March 25, 2012 Yes had very similar problem. Had quotes that were worryingly high to sort for eviction purposes. Ended up going with www.n-l-c.info. For £60 all my problems were solved, now a happy and stress free landlord. U need to click on 4th link on left "services". Link to comment Share on other sites More sharing options...
LLAW96 Posted March 25, 2012 Report Share Posted March 25, 2012 I have had a quick look at that n-l-c website, its nothing special there are better and cheaper sites out there, and do you really want to support an outfit that pays part of its profits to Shelter who do their best to thwart landlords at every turn. Link to comment Share on other sites More sharing options...
snorkerz Posted March 25, 2012 Report Share Posted March 25, 2012 Mikey74 is promoting them quite a lot - wonder if he is associated with them? The domain holder is a certain Michael Moran. I have had a quick look at that n-l-c website, its nothing special there are better and cheaper sites out there, and do you really want to support an outfit that pays part of its profits to Shelter who do their best to thwart landlords at every turn. Link to comment Share on other sites More sharing options...
LLAW96 Posted March 26, 2012 Report Share Posted March 26, 2012 I was giving him the benefit of the doubt, clearly promoting his own site but will not come clean. Link to comment Share on other sites More sharing options...
eddieking Posted March 29, 2012 Author Report Share Posted March 29, 2012 Have taken your kind advice. A Solicitor is now acting on our behalf and a letter claiming that the person still in our property is trespassing. She has been advised that unless she can claim to be a tenant, a Section 21 Notice will be served. She has a few more days to vacate the property. To be honest, I am still a little confused by the legal stuff and just hope that our Solicitor can bring this to an end soon. Although we have been advised to stay away from the property (which we have) a friend who lives very close by has seen her filling her car with things from the house. I dont know where this is going because she knows how the law works. I shall just have to see how this progresses but I can see it costing a lot of money. She claims many benefits and doesn't need to pay for legal representation. I wish I had never let this house!!! Link to comment Share on other sites More sharing options...
snorkerz Posted March 29, 2012 Report Share Posted March 29, 2012 Have taken your kind advice. A Solicitor is now acting on our behalf and a letter claiming that the person still in our property is trespassing. She has been advised that unless she can claim to be a tenant, a Section 21 Notice will be served. She has a few more days to vacate the property. To be honest, I am still a little confused by the legal stuff and just hope that our Solicitor can bring this to an end soon. Although we have been advised to stay away from the property (which we have) a friend who lives very close by has seen her filling her car with things from the house. I dont know where this is going because she knows how the law works. I shall just have to see how this progresses but I can see it costing a lot of money. She claims many benefits and doesn't need to pay for legal representation. I wish I had never let this house!!! Sorry, you can't serve a section 21 notice - this suggests to me that your solicitor is not a specialist in landlord and tenant law. If the person you have a tenancy with is NOT living at the property then that tenancy is no longer an assured tenancy. If it is not an assured tenancy then none of the sections in the 1988 Housing Act apply - including both section 8 or section 21. A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as (a) the tenant or, as the case may be, each of the joint tenants is an individual; and (the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home; Link to comment Share on other sites More sharing options...
snorkerz Posted March 29, 2012 Report Share Posted March 29, 2012 I was giving him the benefit of the doubt, clearly promoting his own site but will not come clean. You and I both know that £60 is not enough to 'solve all my problems' with a possession claim at £175 and bailiffs at £110. Link to comment Share on other sites More sharing options...
eddieking Posted March 29, 2012 Author Report Share Posted March 29, 2012 Sorry for sounding ignorant, but does this mean then that she has no rights to be there at all and then perhaps this letter saying she is a trespasser is enough to get her out??? Sorry, you can't serve a section 21 notice - this suggests to me that your solicitor is not a specialist in landlord and tenant law. If the person you have a tenancy with is NOT living at the property then that tenancy is no longer an assured tenancy. If it is not an assured tenancy then none of the sections in the 1988 Housing Act apply - including both section 8 or section 21. Link to comment Share on other sites More sharing options...
snorkerz Posted March 30, 2012 Report Share Posted March 30, 2012 Sorry for sounding ignorant, but does this mean then that she has no rights to be there at all and then perhaps this letter saying she is a trespasser is enough to get her out??? No, the tenancy still exists, and you still need a court order to bring it to an end. Even if she were a trespaser, you'd still need that. Take a look at the tenancy agreement you have with the legal tenant. Firstly, I presume it is passed the end of it's fixed term? I presume it also forbids subletting? What does it say the 'penalty' for subletting is? Thee may ba a clause somewhere that says 'any breach of these terms will result in eviction' or similar. Wilst you are looking at the agreement, try to identify anything else that the true tenant is breaching, and any specific consequences. Once you have done that, report back your findings and we can take it from there. Link to comment Share on other sites More sharing options...
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