Here is a blog clinic question from Sally (not her real name) who is (or wants to be) a tenant
I was a tenant of a property for 2 years, I then moved back to the property I owned a year ago as there were implications on my mortgage if I did not. I gave notice to the landlord which was never acknowledged by the landlord.
The property has remained empty ever since and I realise what a mistake I made and wish to move back.
The owner is now in a care home with mental problems, she has said I can move back in whenever I want but I am concerned that the care services will try to sell the property whilst I am there or whether my tenancy agreement will still be valid now?
Really need help with what I can do?
If you move into the property and start paying rent, then a new tenancy will be created automatically (under s 54(2) of the Law of Property Act 1925).
You don’t need a tenancy agreement to create a tenancy. If is a good idea and good practice but it is not actually necessary.
If you have reached an oral agreement with the landlord that should be sufficient. Keep a record of the date you agreed and make sure you pay rent.
The only problem I can see is that it may be alleged that the landlord did not have mental capacity to create a tenancy – however even if this was the case (and I don’t think it is) they would still have to follow the proper procedures to get you out.
If the care people then want to sell the property with vacant possession they will have to follow the proper procedures to evict you first or sell it with you as a sitting tenant.
The Law regards silence as acquiescence. Therefore if the Landlord has said nothing it matters not, especially given that you vacated 2 years ago!!
The old tenancy has clearly ended by surrender by you and acceptance (if in silence) by the Landlord.
On that basis I fail to see how you can possibly move back in.
Having exprienced social services and local authority care good though they were if I were you I would tread extremely carefully in assuming the Landlord has the necessary mental capacity, very carefully.
The property belongs to the landlord not to social services. Unless a Court of Protection order has been made, or unless the landlord is clearly wholly incapable mentally of granting a tenancy and the tenant knows that, then so far as I understand it, a tenancy can be created.
Under s54(2) of the Law of Property Act 1925 you do not need a written tenancy agreement (although in this case it would be a very good idea to have one).
If this landlord has confirmed that she is happy for the tenant to move in then my view is that a tenancy can be created – although I agree it is not ideal.
Mind you social services may not be that unhappy about it as the rent can go to help fund the landlords care.
If the tenant goes in on a monthly periodic then a section 21 notice can be served at any time.
“On that basis I fail to see how you can possibly move back in.”
Because the landlord said he could!
“if I were you I would tread extremely carefully in assuming the Landlord has the necessary mental capacity, very carefully.”
We have no idea what mental problems the landlord might have (it could just be mild memory loss) and even if someone has mental problems you cannot assume they lack capacity, in fact they have to be quite severe before a court will rule they lack(ed) capacity. The burden of proof is also on the person alleging the lack of capacity so it’s a long process.
To end a tenancy or sell the property, the local authority would need to apply to the Court of Protection for deputyship. Have you ever seen how long it takes for an LA to get the required medical reports, information and associated paperwork to even post it to the Court of Protection? The last one I was involved with took 9 months for the LA to even submit the application, then a further 3 months for the court ruling! The one before that took 12 months for them to submit to the CoP.
That’s as far as my actual experience goes, so correct me if I’m wrong, but the only people who can apply to the court to make a contract voidable are the person themselves, their attorney under an LPA, or their deputy, so the LA would have to apply for deputyship first (bearing in mind that’s likely to take the best part of a year) before they could even go to court to try and void the contract. It would be quicker to just serve a s21.
It would take a long time for anyone other than the landlord to turf the tenant out.
It must be nearly 20 years since I got a Court of Protection Order and it took a long time then. I understand it has got worse since!
Social services could act for the landlord I suppose if they had power of attorney. But would they want to?