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.
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.