This is a question to the blog clinic from Elliott (not his real name) who is a landlord.
I’ve got a tenant who wants to terminate his contract, however, he’s confessed that 9 months ago under duress, he allowed his estranged wife to move back into the property without mentioning it to me.
The tenancy agreement has always been solely in his name, he’d lived there on his own for several years before he met and married her.
She doesn’t want to go, I don’t want her there, as I now intend to sell.
She says she has a legal right to stay and I must give her notice to leave, Is this true? He’s now asking me to terminate his contract, he says, it’s the only way we can get her to go!
Your advice would be most welcome. Thanking you in anticipation.
Answer
You can’t stop your tenant’s wife living at the property with him. I don’t do family law, but I understand that she also has certain occupation rights. However, from what you say, the tenancy is still in the sole name of the husband.
Note that you cannot evict the wife on her own, all you can do is get a possession order against the husband which will be effective against the wife too (although she will not be named on it).
A suggested procedure
First of all, you need to make it clear to the husband that the tenancy cannot be ended while the wife is living there and you are not prepared to accept a surrender of the tenancy unless he is able to give you vacant possession.
Then you need to serve a section 21 notice. This should be in the name of the husband (as he is the tenant) but there is no harm in sending a copy to the wife saying that she is not named in the notice as she is not a tenant, but that when the court order is made, she will be required to leave too.
If you use the accelerated procedure for possession there is no place on the forms to name occupiers who are not named tenants so she will not be included in the proceedings. However, you may want to serve a set of papers on her too so she knows what is happening. If you send a spare set to the court, they will stamp them and send them back to you for service.
It is possible that the wife may apply to be joined into the proceedings, but that is up to her. If she does, she won’t have any special defence to the claim – all it will mean is that she would be named on the possession order.
Once the court order is made, if she refuses to vacate, note that if you instruct the Court Bailiff, he has authority to evict whoever he finds at the property. So she will have to leave at that stage whether she is named on the court order or not.
NB Find out more about the Landlord Law Eviction Service for landlords which has step by step guidance on bringing a claim for possession.
If Eliot refuses to accept the surrender I agree with you but what if Eliot terminates by deed? That doesnt require an act of acceptance on the part of the landlord.
If his ex doesnt move out after the tenant has terminated wouldnt Eliot then be required to serve an NTQ rather than a s21? with the ex merely being an unauthorised occupant.
I’ve defended cases on the basis that the notice should be an NTQ not an s21, admittedly with moixed results
Elliott is the landlord, not the tenant.
What do you mean by termination by deed?
A tenant (although not a landlord) can serve a Notice to Quit which will end the tenancy, but then Elliott (the landlord) will be stuck with the wife living in the property. Not something he wants.
Elliott would be able to evict the wife but not under s21 and the procedure is not as well known as the section 21 procedure. This post is advising the landlord not the tenant.
Yeah sorry for the confusion, its early. I havent had my Reddy Brek yet haha
Yes termination by deed. The tenant serving an NTQ or Express Surrender as some of the law books refer to it. The tenancy will come to an end but if the tenant’s wife is still in the property then Eliot would have to serve an NTQ and go for possession, which he would get as a mandatory order given she would be considered an unauthorised occupant but the argument would be the wrong notice has been served.
As I mentioned some judges, those who are sticklers for detail have thrown out applications on this point whilst others take the view that the end result is the same so why quibble over s21 v. NTQ? The difference between implied and express surrender being important in this context because the last thing Eliot would want is to go to court on an s21 only to have it knocked out as the wrong notice.
As you know, Judges can be unpredictable
This does of course raise the question of what to do in the meantime in terms of money paid whilst the process is going through. Eliot would be entitled to ask for use and occupation charges (mesne profits) but needs to avoid calling it “Rent”.
I think that from Elliott’s point of view, it is probably easier to go down the section 21 route (assuming he is able to serve a valid s21 notice) as the procedure is better known and if he uses the accelerated procedure there will not normally be any hearing.
And also the husband will be liable for the rent throughout, right up until the bailiffs boot him out.
If the husband serves a tenant NTQ then he will be off the hook insofar as rent is concerned at the end of the NTQ notice period. Which is good for the husband/tenant but not for Elliott the landlord (who is the person we are advising here).
S21 is the correct procedure if no tenants NTQ is served – as only a tenant can serve a tenant NTQ.