Here is a question to the blog clinic from Karen whose son is a landlord
My son has been ‘given’ a maisonette by my mum. It has a sitting tenant who is in his 80s and has lived there 10 years.
No official paperwork was used when renting the flat and he pays £100 a month! The man has got a ‘girlfriend’ who has just come out of prison for drug offences, she is in her mid 20s.
We are concerned about the gentleman and have been in contact with his 2 daughters who don’t want anything to do with him.
How do we go about getting him out of the flat so my son can sell it and buy his own house? The gentleman was my mums sisters husband before she died a few years ago so he is related by marriage if that matters at all.
Answer:
First, I will assume that the legal title for the property has been transferred to your son so he is the legal owner.
If he has not done so already he will also need to write to the tenant informing him that he is now his landlord and telling him any new arrangements for the payment of rent.
What sort of tenancy does he have?
The fist thing to do is work out his tenancy type. It sounds to me as if he has an assured shorthold tenancy. As he has been there for ten years, this will be a periodic tenancy and as he pays rent monthly the ‘period’ will be from month to month.
As the tenant was related by marriage to your Mother it is possible that you could claim that there was no tenancy, as when he went in there was no ‘intention to create legal relations’. This rule sometimes applies in family situations.
However I think the safest course of action is to assume that he does have a tenancy and act on that basis.
Serving the possession notice
In order to get an order for possession you need to first serve a possession notice on him. Assuming his tenancy is an AST you should serve a section 21 notice.
There is a problem here as, because his tenancy is periodic (particularly as it is possible that there never was a fixed term in the first place), you will need to state in your notice the ‘last day of a period of the tenancy’ after two months after service of the notice. However with a long standing tenancy like this with no paperwork, it is going to be difficult to work this out.
I suggest therefore that you serve a ‘no date’ notice – this is one where the notice does not give an actual expiry date but just a formula for working it out. This sort of notice is authorised by a Court of Appeal decision – we have one on my Landlord Law site.
Just in case, it might also be an idea to serve an old style Notice to Quit – this will cover things if in fact he does not have a tenancy because there was ‘no intention to create legal relations’.
Getting an order for possession
You will then need to apply to court after the expiry of your possession notice.
As it is a ‘no date’ notice the safest way to ensure that you have not inadvertently issued before the notice period ends, is to wait at least three months.
You will not be able to use the special ‘accelerated procedure‘ as you do not have a written tenancy agreement. You will need to use the ‘ordinary’ procedure where there is a court hearing when you will need to explain the situation to the Judge.
However I don’t see why you should not get your order. If the tenant does not move out you will then in due course be able to get a bailiffs appointment.
So far as the old gentleman is concerned, he will have the right to apply to the Local Authority to be re-housed, as he is likely to fall under the ‘priority need’ category in view of his age.
Find out more about the >> Landlord Law Eviction service.
What about a Section 13 notice to put the rent up to a market level while the eviction process is going on?
“my mums sisters husband” suggests the gift of the legal title was never intended to be actual possession until the great uncle dies. The £100 a month rent from the brother in law indicates the mum never intended him to live rent free but the transfer of the property was to benefit the grandson when his great uncle dies rather than the benefciaries under the tenant’s will.