Here is a question to the blog clinic from James) who is a landlord with a sitting tenant:
Purchased property in 2015
Property came with a sitting tenant
Tenant has occupied the property for less than a year
The tenant refuses all forms of negotiation of rent or access for repairs
Previous landlord, as it was a repossession purchased at auction, has provided no tenancy agreement. The tenant has provided no tenancy agreement
We attended court. Tenant did not arrive. Judge claimed because no tenancy agreement can be presented we cannot evict under a section 21.
We’re pretty confused on where to go from here. The judge was quite Pacific at the same time telling that she could not give legal advice was confused herself. Any suggestions?
It is possible to evict a tenant under section 21 with no tenancy agreement. But only if the landlord is able to provide information about the tenancy and prove that it is an assured shorthold tenancy (AST). Which obviously in these circumstances, you are unable to do from your own experience.
What tenancy type does the sitting tenant have?
For example, if the tenant has been in the property since before 15 January 1989 he will have a protected tenancy. Here you cannot use section 21 as it does not apply. Indeed, it may be impossible for you to evict the sitting tenant at all.
If the tenant moved in between 15 January 1989 and 27 February 1997 the situation is very similar. In that case, the tenant will only have an AST if a section 20 notice was served on him before he moved in (which you are not in a position to prove). So effectively the tenant will have an assured tenancy. Again it may be impossible for you to evict your sitting tenant.
In both these two situations, the only way you can evict is if
- the tenant falls into arrears of rent, or
- you are able to provide them with suitable alternative accommodation.
To be able to evict a tenant under the ‘no fault’ section 21 procedure, you need to be able to prove that the tenancy started after 27 February 1997. After which time all (or more accurately most) tenancies were automatically ASTs.
So you need to do some research to find out when the tenant moved in.
Increasing the rent
So far as the rent is concerned, you can increase this under this statutory notice procedure – provided the tenancy is an assured or an assured shorthold one.
If the tenant moved in before 15 January 1989 and has a protected tenancy, he will be able to apply for a fair rent. You will be able to apply for a rent increase but the procedure is different and you are not normally entitled to a market rent.
I doubt whether the tenant did actually move in before 1989 as that is a long time ago now. But it is something you need to consider.
For example – how old is the tenant? If he would have been 3 years old in 1989 it is unlikely that he will be a protected tenant. The only way this could happen would be if he inherited it from a spouse.
What to do now
Probably the best way to get some evidence to use in court proceedings is to employ a private investigator to do some digging around. But provided you can prove that the tenant must have moved in after February 1997 you should be able to evict.
I would advise however that you use solicitors rather than try to do the work yourself. Or at least use a professional advocte.
Note – if you do not want to use solicitors, my Landlord Law eviction guide contains help on evicting tenants under section 21 and we provide an advocacy service. The form needed to increase rent by notice (provided the tenancy is not a protected one) is available for Landlord Law members.