This is a question to the blog clinic from Harry who is a landlord.
So, in short, I rented my house to my father in law in good faith while I moved into a new property with my then partner, regrettably without out any tenancy contracts or paperwork!. I am no longer with my partner and yes you guessed it my x father in law is no longer paying me any rent (last 4 months).
I have taken legal advice, but I am told without any gas certificates or energy assessments completed there is little we can do, the problem I now have is when I ever I try to get these task completed he won’t answer the door!. I have tried myself to speak to him, send him letters all of which get ignored! it would seem my options are very limited and potentially extremely expensive, I am told to budget around 20k!!!
Any advice would be very much welcome, clearly I have made some very obvious mistakes, however, I desperately need to find a way out of this position.
Answer
This is a classic example of why you should NEVER rent to relatives or in-laws!
Or if you do, why it should be treated like any other tenancy with a tenancy agreement signed and all the proper paperwork served.
You are certainly in difficulties as regards using section 21.
At the moment though you don’t need to use section 21 as there are serious rent arrears. You can bring a claim for possession based on that.
However, if your father in law paid the rent arrears, this would place you in a position where eviction would be very difficult.
The problem is, you need to do a gas safety check before you rent to ANYONE. Even if you take in lodgers you need to do one. So the fact that the tenant was your father in law at the time and that this was a family arrangement with ‘no intention to create legal relations’ will not be any help.
Getting the Gas Safety Certificate Done
Sending a series of letters informing your ex-father in law that this is a legal requirement and is for his own safety might do the trick.
If he still won’t let you (or rather your gas installer) in to do the check, threatening to go to court to obtain an injunction might persuade him to agree, particularly if you make it clear that you will be asking the court to order that he pay the costs of this.
We have a legal kit which provides all the guidance for this, including a DIY guide for getting a ‘gas injunction’ (as they are called).
Then when the gas installer goes in, see if you can get someone in to do an EPC at the same time.
Once you have this you will be able to serve your section 21 notice.
Further issues
If you are unable to get the EPC done with the gas inspection, then it is possible that in your proceedings you could argue that an EPC was not needed when your ex-father in law went in – as at that time ‘there was no intention to create legal relations’ ie create a tenancy.
A tenancy would only have arisen when your relationship with your ex-father in law changed (if indeed it has – there is a possible argument that he is still not a tenant).
In our Gas Access Kit, we also have guidance on obtaining a possession order on the basis that a tenant is in breach of the terms of their tenancy agreement by not allowing you in to get the inspection done.
The problem here is that you do not have a tenancy agreement! It is possible that you may be able to do this though on the basis that it is an implied term of your tenancy agreement – but you would need advice on this.
However, I suspect a Judge would be sympathetic as after all gas safety certificates are for everyone’s safety, not just the tenant.
NB Find out more about my 
Harry might still have a problem if the property is in an area requiring non HMO licensing, such as Newham, Croydon or Waltham Forest. In which case he will need to get licensed as well.
And talk about serendipity, when this post popped up I was preparing some training notes and writing a section on renting from relatives and found the case of Nunn v. Dalrymple, making the point that a family arrangement doesnt always constitute no intent to enter a legal relationship
Alternatively, you may apply to the local Environmental Health Department, they do have rights of entry and pose as a more official role, they do have the authority to gain a warrant to enter the property. Obtaining a Gas Cert & EPC are mandatory and are legal requirements.
Without these, a section 21 may pose difficult if you are submitting to court for accelerated possession. If there are rent arrears you may also try going through the PCOL route (Possession Claim Online) on mandatory grounds 8 (If the rent arrears totals 8 weeks at the date of service). If the rent is coming in inconsistently you may try discretionary grounds 10 & 11 with a section 8.
If you live in the UK (which I assume you do) the court costs for a section 8 notice though PCOL is £325 and you will have to attend court on the day, the advantages of this is that you may obtain a money judgement for any arrears occurred during the tenancy plus the possession order which is usually awarded 14 days after the court hearing.
If there was a bond paid you must ensure that it was secured in one of the prescribed tenancy deposit protection schemes under S214 Housing Act & S184 Localism Act.
If you wish to proceed through S21 grounds you must use Accelerated Possession which is a bit more expensive but as Tessa said you may have difficulties obtaining the possession order, although the courts do not request to see a copy of the EPC or Gas Cert it’s always good to add them just in case. If you reside in wales you must ensure that you are also compliant with Rent Smart Wales as this can invalidate a section 21 if you aren’t compliant.
Although you are the owner of the property you are not prohibited to just walk in and get them completed, you may supply a 24 hours notice in writing to the tenant to have the Gas & EPC completed but the tenant does have the authority to deny access.
Note that you cannot use the accelerated procedure as there is no tenancy agreement. However, the standard procedure CAN be used for section 21 claims.
Hi Tessa,
Both processes I found do require a tenancy agreement, with the accelerated procedure it’s usually dealt by sending the information to the local court with a cheque attached but this does require to have the following if there is 1 defendant:
* Copy of the Notice served x3
* Proof it was posted ( Receipt from post office or a statement of truth )
* Copy of the tenancy agreement x3
* Proof of Rent Smart Wales compliance ( If you live in Wales )
How would a verbal contract not apply in both courts, if rent has been received then it should automatically establish an AST. Courts will consider a verbal agreement provided the rent has been paid and there is an offer, acceptance and understanding of the agreement which was being entered into.
Although accelerated procedure does not require you to attend and is conducted without either party being present, surely a letter can be drafted explaining the situation with rent being paid does constitute a binding verbal contract.
Thanks, Steffan although when I practised as a solicitor I did eviction work for over 20 years (and in almost all cases got my order) so I am aware of the procedures and how they work.
I think it is unlikely that a Judge would accept an explanatory letter in lieu of a tenancy agreement in a claim made via the accelerated procedure and I always advise that if no tenancy agreement is available that the standard procedure should be used.
It is of course entirely up to you whether you want to ‘give it a go’ and use the accelerated procedure without a tenancy agreement. But I would not recommend it.
However, with the standard court procedure, there will be a court hearing where the landlord can give evidence on oath as to the existence of the tenancy which will normally satisfy the Judge.
Note that anyone wanting guidance on eviction procedure can see our service here: http://landlordlawinfo.co.uk/eviction/
Hi Tessa,
I do agree with you, I am also aware of the procedures of court and complete evictions on a weekly basis and have been doing so for many years.
If it’s down to a matter of confirming the agreement is there, surely a statutory declaration could confirm the existence of the agreement.
Although I do agree with you that standard procedure is the best and most efficient option in this instance it is possible that you may also proceed down to accelerated procedure.
(Although I wouldn’t advise it)
Steffan I’ve made my living defending possession claims for the last 27 years and if I was presented with a letter in lieu of a contract i would mount a robust and loud defence and I can clearly imagine the facial expressions of many judges I appear in front of if presented with such a document.
It aint pretty hahaha