Here is a question to the blog clinic fast track from John (not his real name) who is a landlord
Property rented for 12 month period on an AST without issue. Tenant requested a new 6-month tenancy after that, which we agreed to and rent for the 6 months up to 22nd August was paid in full, plus a tenancy deposit.
In July our letting agent started getting neighbour complaints about continuous late-night parties. When they checked they found that the tenant had moved out to a care home and had given his keys to his granddaughter who was using it as a party house. None of this had been agreed by us.
The agent arranged to attend the property and was able to get access but found that the interior was suffering from damage to carpets etc in line with the partying that was reported. We immediately served a S21 notice, which ends 22nd Sept.
As the rent had only been paid up to 22nd Aug we also requested payment of rent for the period 22nd Aug to 22nd Sept but have received nothing as yet.
The agent is trying to get a check-out mtg set with the granddaughter or original tenant for 22nd Sept but my sense is that this will not happen.
My question is twofold:
1. If we have to go to court to gain a possession order, who is this served against? The original tenant now in a care home or the granddaughter living in the property? If the former and we cannot locate him (we were never given details of which care home), how do we practically proceed? What is the granddaughter’s legal status in all this?
2. We will likely rely on the tenancy deposit to cover damages to the property once we regain possession. However, in the event that we are also still facing unpaid rents from 22nd Aug up to the point, we regain possession, we want to claim these back legally and again are not sure against whom that claim would be? The threat of legal action (together with CCJ) would be more of an incentive for the granddaughter to resolve (future creditworthiness etc) compared to the grandfather who is unlikely to be affected in that way by such a ruling.
This could be an extremely tricky case.
Let’s take a look at the legal situation. The grandfather remains the tenant and the granddaughter is occupying the property as his guest – unless she is paying him rent (which sounds unlikely) in which case she could be a sub-tenant.
I say ‘occupy’ but it sounds as if she is not actually living there, just using it for parties. So it may be that no-one is living at the property at the moment.
If so, how does this affect the original tenancy? If the grandfather has moved out permanently it is possible that the tenancy is now a common-law one and not an assured shorthold tenancy any more.
The Housing Act 1988 which created the assured and assured shorthold tenancy regime, provides that an essential element of an assured or assured shorthold tenancy is that the property is being occupied by the tenant as his ‘only or principal home’. Which it seems is no longer the case here.
In which case s21 will not be available and you will need to use the ‘Notice to Quit’ procedure to recover possession. This is not a problem though (so long as the court claim is properly drafted) and could even be good news as you will not be bothered by all the section 21 pre-requisites.
Of course, the grandfather may planning on returning and may be unaware of the use of the property by his granddaughter as a party house. You don’t know.
But my first advice is that you must notify your insurers of this situation. They need to know that the tenant has vacated and that the property is unoccupied (if this is the case) and you will probably need to negotiate an extension of cover with them.
Depending on the terms of your insurance policy, they may wish to take over the claim for possession. So speak to them first.
Let’s take a look at your questions.
Service of possession proceedings
This is not an insuperable problem. If you don’t know the whereabouts of a defendant it is possible to apply to the Court for an order that the court proceedings be served on someone else in their place. So here you could apply for an order that the proceedings (and indeed all the court paperwork) be served on the granddaughter.
Have a look also at your tenancy agreement and see what it says about the service of documents.
However, there could be another problem. If the grandfather is suffering from any form of dementia it may be impossible to bring a claim for possession against him at all, as he may no longer have the mental ‘capacity’ to be a party to a claim.
In which case it may be necessary to apply to the Court of Protection before the proceedings can be properly served. Let us hope that this is not the case, but I just mention the possibility so you are aware of it.
Bringing a claim for the rent
This is going to be difficult and you may have to be satisfied with the recovery of your property.
I doubt that you will be able to claim from the granddaughter as she is not the tenant and is not in a contractual relationship with you. Any claim will need to be against the grandfather – who is probably without assets.
I would strongly advise that you use a specialist firm of solicitors, such as Anthony Gold, in a case like this. This is not a claim you can or should bring yourself as a litigant in person.
Unless you are able to locate the grandfather, you will need to apply to the Court for an order authorising the service of proceedings by some other method (eg by service on the granddaughter). If the damage being done to the property is serious it may also be possible to apply for an injunction ordering the granddaughter to vacate the property.
Then if you find that the grandfather no longer has mental capacity (eg if he has dementia) the claim could become very difficult and you will need an experienced solicitor to assist.
However before doing anything speak to your insurers as it may be that this situation is covered by the terms of your policy in some way.
Incidentally – from what you say it looks as if your agents were not carrying out regular inspections of the property as this situation only came to light due to neighbour complaints.
Had your agents been carrying out regular three-month inspection they could have learned of the grandfather’s projected move to a care home before it happened.
In which case they could have arranged for the tenancy to be ended early and the granddaughter might never have been allowed to have access. This is another example of why regular inspections by landlords or their agents are so important.
There is one other possibility.
If the granddaughter is not actually living at the property (and you can prove this), and the fixed term has come to an end, you could just go in and change the locks. The justification being that the tenancy was ended by ‘effluxion of time’ because the tenant vacated before the end of the fixed term.
This would be risky, but if the tenant has no intention of returning, the granddaughter is using the property without your permission, in breach of the terms of your tenancy agreement and moreover is causing damage to the property – there may not be a lot she could do about it. She has no rights.
The person who has the right to object is the actual tenant – but from his point of view it could be advantageous for the tenancy to end as he will no longer be liable for the rent.
This would be a high-risk strategy though and you would need to know a lot more about the situation before taking any action. I am not recommending that you do this – it is just a possibility you may want to consider with your advisers.