Here is a question to the blog clinic from Chris whose daughter in law is a Council tenant:
My daughter in law was been a Council tenant for 5 years. The Council agreed that she could go abroard with a her family to try a new life for 6 months without giving up the flat as long as she paid the rent,council tax and utillity bills.
She was allowed to move friends in by the Council to keep an eye on the place. The “friends” agreed to meet the Council rent etc and paid direct to her bank account. Outgoings were by direct debit.The account remained more or less in the black till recently.
The 6 months is now up,The council has not chased her but the ” friends” stopped paying last month and refuse to move out.She wants to come back and I have paid last months payments for her.
There is no written tenancy agreement or deposit.However I suspect that she is subletting with the Council’s permission and has created an AST which can only be terminated via the S21 or S8 process.
Do you agree?
I do. This is a typical illustration of how you need to be very careful about trusting friends in this sort of situation.
As they are paying monthly they will have a rolling monthly periodic tenancy. To recover possession your daughter in law will need to serve a section 21 notice.
The notice period will be between two and three months, depending on when in the month it is served as it has to end at the end of a tenancy ‘period’. This will normally be the anniversary of the day in the month before they moved in. So if they moved in on the 6 June the date will need to be the next 5th of the month after two months after the notice is served.
However as there is no written documentation it is essential that there is a saving clause in the notice and I would recommend that proceedings are not started until three months after the notice is served, just in case your date is wrong.
As there is no written tenancy agreement she will not be able to use the special ‘accelerated procedure‘ but she will still be able to use section 21. However there will have to be a Court hearing.
I explain all of this in my do it yourself eviction kit which you can read about >> here.
Great post Tessa, I am also planning to buy an apartment but now I am afraid of scams or frauds. Can you explain about how we can stay away from fraud lists or from where to start to buy a good apartment?
I have a collection of all the scams and frauds I know of on my Landlord Law site here : http://www.landlordlaw.co.uk/scams-and-frauds
If anyone knows of any I have missed, let me know
Thanks for the list Tessa. :)
I agree Tessa – friends and family tenancies are the worst of the lot and the ones needing to be the most watertight. As an aside I have just finished advising a family friend as his tenant who has been sitting tight for months (been in the property 9 years!!)are about to be re-housed at last by the Council.
It has had a new agreement every 6 months or possibly recently annually and he hadn’t been 100% on his TDP stuff so he hasn’t pressed any harder than he had to, just gently squeezing including issuing a later dated s21(1)(b)after he had correctly served the PI (he had at least lodged the deposit with DPS).
Point is the property is urgently needed for his divorcing brother. But blood relative or not he’ll be setting up this next tenancy on a solid AST basis – and not taking any deposit!!
Main point in this article case is the date in the s21(4)(a) notice. I know you advocate the day before the tenancy commencement date, but the majority of opinion and the majority of cases are now determined to be day before the Rent Due Date that is needed.
Either way I agree the saver clause and delaying going to Court until the 1st of the month after the first date you could have applied for a hearing date is the only safe answer, but many Judges get even more confused by that as well!!
The real answer is to align the TCD and RDD and have them both as the same date – every single time and as soon as possible if they are out of kilter and once the tenancy goes periodic .
So often people tell you that they have a property that they rent out to a friend. When you ask about tenancy agreements they say oh its a friend I didn’t need to go to all that bother.
Unfortunately friendships do hit rocky patches so it’s best to make sure you have covered yourself.
I fear that the situation may be even worse as a council tenant of 5 years will be a ‘secure tenant’.
A secure tenant is not allowed to sublet the whole of her home. Whilst the council can consent to letting out a spare room it will not/cannot consent to you renting out the whole flat. If you let out the whole flat you can be evicted quite easily by the council. If the council take this action the ‘friends’ will be evicted at the same time.
There might still be an argument that the friends were ‘caretakers’ for the 6 months and that no tenancy was created as there was no intention to enter into legal relations. Assuming that council rents in your area are appreciably less than market rents then this position may be tenable, as does the fact you explained what you were doing to the council at the outset.
If the friends are not tenants they will be licensees, and if they were paying you no rent, all you would have to do is give them reasonable notice. If they still don’t go you would have to go to court to get then evicted as trespassers.
As I understand it, councils do not allow subletting, but do allow lodgers. Therefore as she is not permitted to sublet by her landlord, could her landlord (the council) evict her friends without having to go var a S21?
Where is Ben when you need him…
Sorry guys. I went into work this morning expecting a normal day and found I was on a CLG training course about the new legislation, announced today and coming into force on the 9th November that is quite a seismic shift in UK housing culture, which even gob-smacked me.
Councils dont allow sub-letting of an entire property because it breaks the regualtions that say a person must occupy as their sole or principle home. IN practice council sometimes allow it, for instance if a tenant has a work contract abroad for a year and will accept caretaker tenants as Tony suggests, but this permission doesnt get them around the occupation rules, so the tenant, albeit with permission, is no longer occupying as sole or principal home and the legislation kicks in.
Having said that, council permission is very rare. What you usually end up with is an unauthorised sub-let. Council serves Notice to Quit (Not a section 83 notice) and possession is mandatory against both their tenant and the sub tenant.
Most council housing officers dont understand the process so I get sub tenants in with complaints and I have to ring the housing officer and explain the legal position but I cant take action because I work for the same organisation. Things get messy.
Ian, S21 doesnt apply in council tenancies. Section 83 notices are what you use but if the tenant isnt occupying as sole or principal home it is standard, common law NTQ
I agree with all Ben says above, bar one point. I accept that the council’s permission does not get around the rule that a tenant must occupying the property as her sole or principal home however it is possible for a council tenant to be absent for a lengthy period and still meet that rule.
There have been a number of cases on this point including one where a council tenant sentenced to 12 years in prison was found to retain his tenancy. A long absence (and 6 months is probably a long absence) can lead to the assumption that the tenant is no longer occupying as sole or principal home, nonetheless the tenant can argue this is not the case if s/he intends to return within a reasonable time and has physical evidence that s/he will move back in, eg furniture and other belongings left on the premises.
Whether a council tenant can successfully argue this will depend on her particular facts and circumstances, and Chris’s daughter in law may be able to argue this successfully. Her problem, apart from getting her friends to leave, is I think whether the property was sublet or not.
Picking up on the tenant / licensee question and the nature of the friends occupancy raised by Ben above.
The questioner said that the friends paid the council rent to his daughter in law direct.
I think this will count as rent. Although it is a break even position for the daughter in law, the friends ARE making payments and I don’t think the fact that the money they pay equals the rent paid by the landlord should affect the status of the friends occupation.
@Tessa, yes I think the only issue outside of that would be whether it could be argued that the money they pay would be considered use and occupation charges or mesne profits as opposed to rent. I doubt very much if that is the case.
@Tony the prison case is Amoah v Barking and Dagenham I think. For me the issue has always been that they can return but what are they returning to? A secure tenancy?
Having said that, in pondering this position I started thumbing through my increasingly dog eared copy of the Housing Law Casebook (I cant be doing with the PDF version) and found Hussey v Camden 1995 where the judge stated that an absent tenant could regain status on reoccupation as long as an NTQ hasnt been served and expired. So you are mainly right Tony but a small bone tossed to me for having been wrong in the first place haha