• All HMO landlords have to comply with the special management regulations (and can be prosecuted and fined if they don’t), and
• the property may need to be licensed.

The rules on HMOs changed in 2006 when the Housing Act 2004 came into force, along with a new definition.  This is set out in section 254 onwards.  It is rather a long definition and I am not going to try to summarise it here (the Housing Act is online anyway so you can go and read it for yourself).

There are various types of HMO but so far as rented houses are concerned, you need to know that a property will be an HMO if it is let to 3 or more tenants who form 2 or more ‘households’ and who share facilities such as a kitchen, bathroom or toilet.

A ‘household’ is basically a family unit, which includes unmarried couples.

What the act does not say though, is that it depends on (or is affected by) the type of tenancy agreement you have.

So landlords who are letting out properties to single people and are making them all sign the one tenancy agreement in the hope that they will avoid the legislation (as was possible in the past) are just deceiving themselves. If there are three or more tenants and they are unrelated, the tenancy is almost certainly an HMO.

So if you have tenants coming and going at different times, it would probably be a lot more convenient all round if you gave them their own tenancy agreement for their room and shared use of the common parts.  Particularly if your only reason for having the one tenancy agreement is to avoid the HMO legislation.

If you want to find out more about HMOs and the law relating to them, there is quite a lot information and guidance on my Landlord Law site, in particular in the FAQ sections.

Reluctantly I have to tell them that I hear very few stories of this nature, certainly none of the headline grabbing ones they are looking for (perhaps this is why they all pounced on the Suzy Butler case with such enthusiasm).

More recently we have had the government publishing a guide for dealing with squatters in your home which gives brief guidance on homeowners rights.

Both the journalistic approach and indeed the government’s pdf, include a certain amount of scarmongering.  The government’s pdf for example refers to coming back from walking the dog to find squatters in your home. However, this type of situation is in reality highly unlikely.

What most squatters do

Anyone unfortunate enough to be homeless and looking for somewhere to squat is not going to try somewhere which is being lived in.  In fact that is probably the last place they would choose.  They will be wanting somewhere they can stay long term and will not want any hassle with (for example) outraged returning dog walkers.

The standard advice for would be squatters is to watch and research a property carefully before moving in, to make sure that it is uninhabited.  Ideally they want somewhere which has been abandoned and left unused for a long time.

These properties are often in poor condition, and sometimes squatters can be a good thing for a land owner.  The property is at least being looked after and maintained.  Some land owners have been known to reach agreement with squatters to allow them to stay.

But often of course they are unwelcome.

What to do if you get squatters

If the property is your home where you are living now, the answer is easy.  Go to the Police.  You will be a ‘displaced residential occupier’ and the Police have a duty to help you gain entry.  They should be able to get you back in within a day or so, if not immediately.

The police are not known, of course, for their helpfulness in dealing with  ‘civil matters‘, so you may need to refer them to Part II of the Criminal Law Act 1977.  However you do have the right to recover possession, and s6(1) of the Criminal Law Act which normally protects squatters will not apply to you.

If the police can’t or won’t help

Here you will need to get a court order for possession.  This can be expensive if you use solicitors (fees tend to be in the region of £1,000 +), which is one reason why land owners sometimes take no action.  However the procedure itself is not very difficult.

In fact I have written a do it yourself evicting squatters kit which you can buy and which will give you all you need to know to get your order.

If it is imperative that you get possession within a few days, then my kit won’t help you.  You will need to use a special procedure to get what is called an interim possession order first. My kit does not cover this as this procedure is more complex and I think it is better to deal with the eviction via one hearing rather than two.  However in most cases land owners can afford to wait a couple of weeks and don’t need the interim order.

Provided you can make out your case at the court hearing (and my kit shows you how to do this), the Judge has no option but to grant an order for possession.  This will  always be a ‘forthwith’ order, ie you can instruct the bailiffs immediately (although how long it will take them to actually enforce the order will depend on how busy they are).

You should expect to get the squatters out within about 4-5 weeks from start to finish.  It can take longer, although I have been known to do it in under three weeks.  It really depends on how quickly the court will deal with things for you.

If it is land that the squatters are occupying

Often travellers will camp on fields or in woodland or other land illegally (I once did an eviction of travellers from a car park). Here my kit will be effective, and travellers know the score, and will invariably leave in advance of the bailiffs.

However if squatters are camping on land you also have the option of using  a firm of certificated bailiffs who can evict without a court order.  Two firms who will do this are Constant and Co and Sherwins.

But they have to be squatters

To use any of the procedures set out in this post, the occupiers must be squatters, ie persons who entered the land or property as trespassers.

It is worth mentioning here (again) that tenants who stay on after the end of their fixed term are not squatters, and you will need to use the normal eviction procedures for tenants if you want them to leave.

Photo by mattwi1s0n

I sometimes get contacted by landlords in a panic.  “My tenant will have been in the property for three years next month – should I evict her to prevent her having the right to buy me out?”

Or sometimes its the tenants, thinking that they are entitled to claim ownership or charge their landlords ginormous sums as a condition of moving out.

It is true that tenants who have been in a property for a long time HAVE been able to get big money if their landlord wants them out (Nearly Legal said he once got over £200K for a client in a comment on this blog).

However, this isn’t because they’ve been there a long time.  It’s because when they moved in the law was different – ALL tenants at that time had those rights.  Its just that there are fewer tenants now who have lived in their rented property since before January 1989.

And the right to big money is not absolute.  You only get it (if you are a protected tenant) if your landlord desperately wants you out and is prepared to pay for it.  If the landlord is quite happy to let you stay (so when you pop your clogs he can sell the property at market value and make a packet) there is nothing you can do about it.  Other than live longer than him and dash all his hopes.

Tenant rights depend on when they first moved in

Generally the longer you have lived in a property, the stronger your rights to stay in the property are.  Protected/statutory tenants under the Rent Act 1977 had the strongest rights.  These are all tenants who have been in residence (or spouses of tenants who had been in residence) since before 1989.  Ben talked about protected tenancies here.

If you moved in between January 1989 and February 1997, it is very likely that you have an assured tenancy.  This will depend on the paperwork that you were given at the time you moved in (I explain the rules and s20 notices here). However if you do have an assured tenancy, then you too will have what is known as ‘security of tenure’ and it will be difficult for your landlord to evict you in most cases.

But again this is not because you have been there for a long time but because the law was different at the time you moved in.

However if you have a bog standard AST (or a common law tenancy), then after the proper form of notice has been served on you, your landlord is entitled to get the property back from you (and an order for possession if you don’t go) as of right.  It doesn’t matter how long you have been there.  For an AST tenant, your  security of tenure is never more than two months (give or take a few days)  or the end of your fixed term, whichever is the longer.

Sorry!

This post is part of my urban myths series. You can see the rest of the series >> here.

We have a limited supply of land in England and Wales, and it is something which we all need and use.  As a result, down the centuries, there have been various ingenious solutions to the problem of how different people can have legal interests or ownership at the same time, over the same bit of land or property.

One of these solutions is the lease or tenancy.  This is where you ‘sell’ the land to someone, but just for a slice of time. So the tenant or lessee owns the land or property for the specified time period (and has the sole right to live in it or use it), and you own the right to get it back afterwords.  What lawyers call the ‘reversion‘.

There are a  number of different kinds of lease but they all work in more or less the same way:

• there is a transfer of the legal ownership of the land for a specific period of time (called a term or fixed term), normally by a written document or deed
• during that period of time the property belongs to the person renting the property
• that person (the lessee or tenant) pays rent and sometimes pays a premium (eg to ‘buy’ a flat)
• the lessor or landlord has the right to receive rent (sometimes called ground rent), and get the property back again once the lease is ended
• the lease or tenancy is governed by terms and conditions, either in a written lease or tenancy agreement, or implied by statute – and some statutory rules will override the terms agreed between the parties
• Sometimes, for some types of lease or tenancy, there will be legal rules which will make the tenancy continue after the fixed term comes to an end, if the tenant wants this (regardless of the wishes of the landlord)

When you buy a long lease from the freeholder for £100,000 for a term of 99 years  (or take an assignment of a lease that has been granted to someone else for a similar price) it never occurs to anyone that you don’t own the property.  The freeholders know that they can’t go barging in whenever they feel like it.

However because an assured shorthold tenancy is for a much shorter time, many landlords think that it does not really belong to the tenants, and that they still have owners rights.

They don’t

So if you keep going into your tenants property, without their permission, that is unlawful. You can be prosecuted by local authority tenancy relations officers under the criminal law, and your tenant can sue you under the civil law for an injunction to stop you going in, and for financial compensation.

It will still be the tenant’s property, even though he or she may not be paying the rent.  The fact that they are not paying the rent will normally entitle you, the landlord, to go to court and ask for the tenancy to be brought to an end.  But (for residential leases/tenancies) it does not allow you to end it yourself, now, without a court order, and to physically evict the tenant.  That would be unlawful.

This is the way it is.  If you don’t like it, tough.

The same rules apply to all landlords, whether they are professional investor landlords, ‘accidental’ landlords letting a property because they can’t sell it, or someone renting out their home while they are abroad for a year.

After all, so far as the tenant is concerned, it is their home.

Why should two identical families, paying the same rent for identical properties, be  treated differently, just because one is renting from an investor landlord and the other is renting  from a home owner working abroad for a year? That would be unfair.

So if you are thinking of renting out a property and feel unhappy about this, there is only one answer.  Don’t rent.  Because if you do rent to a tenant, you will be bound by these rules.  Whether you like it or not.

Why not read the rest of my Urban Myths now?

I am prompted to write this Urban Myth post as it seems, from reading comments on the internet, that Ms Butler, the landlord in a tent, may have given this as the reason why she was couldn’t serve a section 21 notice on her tenant.

Irrespective of whether Ms Butler actually said this or not, I think it is important that I discuss and correct the misunderstanding which some people may have about this.

When a landlord evicts a tenant (assuming it is an assured shorthold tenant), first has to serve a possession notice.  This must set out the legal reason why he is asking the tenant to leave.  There are two sorts of notice.

• Notices served under section 21 of the Housing Act 1988, and
• Notices served under section 8 of the act, which must cite at least one ‘ground’ (which are listed in schedule two).

The most commonly used ground is ground 8, the mandatory rent arrears ground.

Section 8 notices based on ground 8, the rent arrears ground

The rent arrears ground provides that if at the following two dates:

• the date you serve the notice, and
• the date of any subsequent court hearing

your tenant is in arrears of rent of at least two months/eight weeks or more, the Judge HAS to grant you an order for possession.

The notice (which has a prescribed format) must give a minimum notice period of two weeks, after which (assuming the arrears have not been paid) you can issue proceedings.  This is different from section 21 claims.

Section 21 claims

A section 21 notice can be served at any time, provided the tenancy deposit has been properly protected (and the notice giving the prescribed information served) and the property does not need an HMO license.  It must

• give the tenant not less than two months notice
• not end before the end of the fixed term (so if it is served towards the beginning of the term, the notice period will be much longer than two months), and
• say it is served under section 21.

There are slightly different requirements if it is served after the end of the fixed term (discussed here).  Then once the notice period has expired, if the tenant is still there, you can start possession proceedings immediately.

There is a special court process you can use, called the accelerated procedure, which will take about six to ten weeks, depending on how quickly the court does its paperwork.

The important point about section 21 however is that it allows you to evict your tenant as of right, even if they have been a perfect tenant and done everything they should.  The Judge will just be looking to see that :

• the tenancy is an AST (the procedure can only be used for ASTs)
• the fixed term has ended
• any deposit has been properly protected and the notice with prescribed information served
• HMO landlords who need a license, have got one
• a properly drafted section 21 notice has been served , and
• the notice period has expired

If all the boxes on the list can be ticked, then the Judge will grant a 14 day order for possession.

Landlords renting their own home

Landlords renting out their own home in circumstances where they know they will want it back on a particular day, should serve a section 21 notice at least two months before the fixed term ends.  Then, if the tenant fails to move out, they can issue proceedings for possession immediately.

It will not be necessary for the tenant to be in arrears of rent.