Does this landlord have any recourse against his anti-social protected tenant?

Here is a question to the blog clinic fast track from James who is a landlord

We have a sitting protected tenant (mid-60s) in one of 4 flats in a converted house in Chiswick (Hounslow council). The flat is a 1 bed on 2nd floor.

Tenant is an alcoholic and goes through phases of disrupting other tenants by holding weekend-long parties to the extent we lose tenancies or have to offer reduced rates and short break clauses on them to offset the impact.

He has previously threatened other tenants when drunk but his behaviour is not consistent enough to take to court and no other tenant wants to act as a witness. Has been going on for years. He has an on/off girlfriend who sometimes stays but she has her own place that he also goes to. No dependents. Aside from his addiction he appears physically fit.

His rent is way below market (half) and always paid (by the council) late and usually, 6-8 wks arrears is typical.

Overall the sitting tenant is having an adverse impact on the whole building in terms of rents. Also if we sold we would have to accept at least 30% below-market rate for the building. We previously offered him significant sum (several £100k) to move out but his status means he wasn’t interested as it is not enough to buy a place and critically he would likely lose his benefits.

We could buy a flat in the next door building (a 2 bed, bigger, better condition, 3rd floor, front door 20 feet away). Makes financial sense to buy it if we can move him to this other flat on a protected tenancy basis, even if we then immediately sell it at a loss with him in situ.

It is believed that the tenant is a protected tenant although we cannot find an actual tenancy document.

Questions:

1. what objections can he legitimately make to moving?
2. If he refuses to move voluntarily, on what basis can we best apply to the court to move him?
3. How do we find a solicitor who understands these sorts of situations and can best make our case of trying to protect his rights but also pointing out his unreasonableness if required?
4. Are we liable as landlords for anything (from the neighbouring flats) by moving him to a new property if his behaviour continues there?

Answer

If your tenant has been living at the property since before 15 January 1989 – or if he says he was and you are unable to prove otherwise – then he will be able to claim a protected tenancy.

The only way you can, legally, recover possession of the property will be

• If your tenant moves out voluntarily – eg after accepting a ‘without prejudice’ offer, or
• Under a Court Order for possession

You have tried the first option so only the second is left. But with a protected tenant they will have long term security of tenure so you only have limited grounds to evict. The main two grounds available are:

• Rent arrears, and
• Suitable alternative accommodation

Rent arrears

I suspect you would not succeed with a rent arrears claim as you say the rent is always paid, it’s just that it is paid late.  Particularly as the late payment is the fault of the Council rather than the tenant.

Although you don’t say whether a fair rent is registered or not.  If it is not, then unless any increases have complied with s51(4) of the Rent Act (which requires a notice to the tenant of his right to apply for a fair rent), the rent you are charging may be invalid.  So you may need to regularise this by applying for a fair rent.

If you do this, and if the fair rent is more than the benefit payments you are receiving, this would put the tenant into arrears – so you may eventually be in a position to evict for rent arrears.

However, this would all take a while (and your tenant may be entitled to a refund of rent if there were any irregular rent increases) so your best bet is probably to ignore this and go for ‘suitable alternative accommodation’.

Suitable alternative accommodation

Although this is a discretionary ground for possession (which means that the Judge has a discretion whether or not to make the order), a Judge is far more likely to do so for a suitable alternative accommodation claim as the tenant will not be left homeless.

So the important thing is to ensure that the alternative property provided is suitable.

An award for possession on the basis of suitable alternative accommodation will be made under s98(1)(a) of the Rent Act 1977 and subject to the additional matters set out in Part IV of Schedule 15 of the act.

This stipulates that the alternative accommodation offered must:

• Have the same security of tenure, ie be another protected tenancy. This will automatically be the case if it is provided by the same landlord, and
• Be reasonably suitable for the tenant and his family ‘as regards proximity to place of work’ and ‘as regards extent and character’, plus any furniture provided must be similar or reasonably suitable for the tenant.

However, the size of the property only needs to be equivalent to the size a local authority would provide under its rehousing obligations. In the case of a single tenant, this would be a one bedroom property.

I would have thought a 2 bedroom flat in the next building would be eminently suitable and difficult for your tenant to reasonably refuse. This is a fairly complex area of law though and there is a string of case law which needs to be considered before buying a new property.

When I practised as a solicitor I once acted for the landlord in a claim for possession based on ‘suitable alternative accommodation’ against a very difficult tenant (although not an alcoholic like yours!) and we were ultimately successful.

Members of my Landlord Law service can read about it in our Real Life Stories section here.

I see no reason why you should not be successful too.

Here are some answers to your questions:

1. What objections can he legitimately make to moving?

If the alternative property offered is suitable, then probably none.

Unless there is some benefit in the specific property he is living in now which they new one did not provide.  But I can’t think of anything.  The Judge would also take into account your need to regain possession.

2. If he refuses to move voluntarily, on what basis can we best apply to the court to move him?

Your claim would be on the basis that suitable alternative accommodation has been offered but the defendant has unreasonably refused to move into it.

3. How do we find a solicitor who understands these sorts of situations and can best make our case of trying to protect his rights but also pointing out his unreasonableness if required?

I would recommend Anthony Gold solicitors who are the solicitors associated with my Landlord Law site.

Few solicitors understand protected tenancies (which is quite a complex area of law with its own rules) but I know that Anthony Gold have solicitors with experience of claims against protected tenants.

The best way to start would be to book a Telephone Advice call (£130) which will also give you a free one-month Landlord Law membership. They can then give preliminary advice, advise on your chances of success and give a quotation for further work.

4. Are we liable as landlords for anything (from the neighbouring flats) by moving him to a new property if his behaviour continues there?

I have to say that is something that worries me.

Generally, one person cannot be liable for the behaviour of another (ie husbands are no longer liable for their wife’s debts!) but neighbours may have cause for complaint if they believe that you deliberately moved in a known anti-social tenant.

This is something you would need to discuss with Anthony Gold (or whatever solicitors firm you eventually use).