Here is a blog clinic question from Claire, who is an agent:
I have been approached by a landlord who has “inherited” a tenant – by her legal tenant moving out due to relocating back to another country and finding a replacement. She has agreed to let the new guy stay subject to referencing by us/ a guarantor (he’s only been in the country a little while) and refused to take rent from him in the short term for fear of unwittingly creating a contract before he was referenced etc.
I have got all his details/his employers details (he’s the guarantor) and a signed guarantor declaration – but no signed contract back as yet (I sent them one starting from July 1st) and no money, which I have requested as we are trying now to create a tenancy for them. He owes her for the security deposit, 1 months rent plus the rent from July 1st.
If we don’t ever see any money from him (which is my suspicion will happen) – where does the landlord stand on this as far as eviction – is he squatting? As he has no signed contract – I’m assuming we can’t serve a section 21 or a section 8 as there is no contract?
The old tenant’s contract ended 28th October 2011, I advised the landlord to serve a section 21 even though she has moved out – just so there are not loose ends – to her email address, she did this on the 6th June but looking at it, it expires on 9th August (she’s read the date the contract was dated instead of the contract start by the look of her paperwork she sent me and taken that for her two months notice!)
A conundrum! I’m anticipating her asking the question – “what do we do now?”!
To know your rights you need to know what the legal situation is. Its a bit unclear at present. For example the original tenancy ends in October. Has it been formally ended then? The fact that the tenant has moved out and left someone in occupation does not of itself end the tenancy. It just means that the tenant is no longer living in the property or paying their rent.
If the tenancy has not ended, then if no rent is being paid a section 8 notice can be served and possession claimed on the basis of non payment of rent.
If the person in occupation offers rent, this can be accepted provided it is made clear that it is accepted from him as agent for the tenant and not on the basis that there is any relationship of landlord and tenant between him and the landlord (you need to be very careful here and very clear). The accelerated procedures can then be used after October, after service of a valid section 21 notice.
If the tenancy was formally ended by the landlord taking a surrender from the tenant and then allowing this person in rent free pro tem while he was checked out, then frankly, this was a most unwise thing to do.
The original tenancy may also have ended if the conduct of the parties is inconsistent with an intention to continue with it, under the implied surrender principle.
If the original tenancy has ended then, as no rent has been paid, I don’t think the current occupier can be a tenant so he will probably be occupying the property under a license.
Looking at the Protection from Eviction Act s3A7(b) it says that a tenancy or license is excluded from protection if it is “granted otherwise than for money or money’s worth”. However I don’t feel particularly happy about evicting this person without a court order and if he refuses to go voluntarily, it would be best to get a court order using the squatters procedure.
This is a fairly straightforward process but is generally expensive where solicitors are involved as it is rather time consuming. I have a do it yourself kit that can be used which you will find >> here.
My feeling, if you are unable to sort out a tenancy with this person (and it sounds as if this is not going to happen) is that you should tell the landlord you are unable to take things any further until she has recovered vacant possession and suggest she takes legal advice.
Note – new landlords wanting to avoid making this sort of mistake should consider either joining Landlord Law or investing in my premium service.
Just one of those small oddities. Since the real tenant has vacated, can you really use a section 21 as the property is no longer the only or principal home of the tenant. I realise you may well get away with it (judge does not notice) but since section 1 use the phrase “if and so long as” and one of those conditions are no longer met, I would presume it cannot be assured?
This whole query and Tess’a answer is a classic example of the sort of mess landlords can get themselves into and then have trouble getting sorted. The complexities of housing law on a daily basis.
I would advise that they can be taking money from the occupier but make it clear in writing that it is simply ‘Use and Occupation charges’ not rent