Evicting a tenant who has never had a tenancy agreement

[Stressed and Bemused]

Hi, hope someone can help with this, I've had a look around the forum but can't see that anyone else has had the same problem.

I own a flat which I rent out. Originally my son and a friend (Tom) rented it, they had a bedroom each and paid separate rent. I didn't bother with a tenancy agreement as I knew them both (yes, I know, I know!). My son moved out in August to live with his girlfriend. Another of his friends asked if I would do him a big favour and help his sister Jo out, who had just split with her boyfriend and had nowhere to go. She had also just lost her job so couldn't give me any deposit or even pay rent to start with. I have known Jo for a while and she always seemed nice. We agreed between myself, Tom and Jo that she could stay for 1 month rent-free while she found a job, and instead of rent she would look after all the housework, shopping etc, as Tom goes out to work. Instead of a deposit she would redecorate the kitchen which I had planned to do this summer anyway.

I guess you know what's coming next - needless to say, she hasn't done any decorating and she hasn't found a job, apart from a few hours a week cash in hand in a local pub (whilst she is signing on). She doesn't do any housework and the place is a tip, not just untidy but actually filthy. She's never offered me any rent at all. I asked her if she could at least get housing benefit, she tells me that she has applied but has been turned down (I don't believe her). Worse than that, she has started having parties several nights a week till all hours, so that Tom can't get any sleep. He tells me she brings random strangers home that she's met in the pub and they smoke dope all night long. He knows that people have been in his room so is now too worried to leave anything valuable there. He spends most of his time at my son's house sleeping on the sofa, but the poor guy is still paying me rent! He is now at the stage where he can't bear to be there any more, but he doesn't really want to move as the flat is in an ideal area for him and all his friends are there etc. Although my main worry is not the lack of rent from Jo, of course if Tom moves out I really will be out of pocket, as nobody else would want to move in!

I need to know how I can get her out of the flat, but all the info I've seen so far depends on the fact that tenants have a tenancy agreement, which she doesn't have, so I don't think I would be able to serve any notice on her. Someone suggested that she might be classed as a squatter, would that be right? I can't seem to get anywhere. It doesn't help that the flat is 200 miles away, where I used to live, so it's not like I can just turn up and catch her doing anything illegal, although I don't know whether that would help me to get her out anyway. I have of course spoken to her, but she just says that Tom wants her out because he doesn't like her and he's making it all up!

Sorry to ramble on so much in my very first post but I'm just so stressed out over this and feel so guilty about poor Tom! Any help would be very much appreciated!

[MrShed]

When did she move in? Do you have any documented evidence at all that that is when she moved in?

[Aequitas]

A tricky one.

First of all the absence of a written agreement does not mean there is no tenancy.

There are quite a few permutations depending on whether there is a tenancy or a licence and if there is a tenancy whether or not it is an AST (a tenancy cannot be an AST if no rent is payable) and if it is a tenancy what the terms are; was anything ever said about how much rent would be payable for example? The answers to these questions may lie in the detail. I think you need to consult a landlord and tenant specialist solicitor for advice and get him to serve whatever notice is appropriate as a preliminary to eviction proceedings. Remember that whatever the status of her occupation she is protected by the Protection from Eviction Act 1977 and cannot be evicted without due process of law.

You may also care to ask the solicitor if you have an obligation to report to the police any illegal drug activity that you suspect may be going on.

[Stressed and Bemused]

Many thanks for your replies.

She moved in the first week of August, I don't have any proof that she's there, except that she has post delivered to her there, would that count?

She knows how much the rent should be and was quite happy to pay it once she got a job (or so she said). It's a low rent as well, I charge them enough to cover the mortgage and all bills and that's it. Really I just wanted someone in there to look after it while I'm not living there.

I have thought about reporting it to the police, but going by some of the other posts on the forum if it's just dope smoking they aren't likely to be interested. And I would want to make sure that Tom didn't get caught up in any raids or anything. But I think I will report it.

If she were to get arrested, would that help me to get her out, in that she was involved in criminal activity, or would I have to have a tenancy agreement stating that she wasn't allowed to do it?

I have thought that maybe I should get an agreement drawn up and get her to sign it backdated to August, then go through the proper eviction process. Is that going to be the easiest/best way to do it?

[GlasweJen]

I'm sorry S&B, I'm not entirely sure about this but I don't think you can make a retrospective contract. Your best bet here would be a lawyer, check your home insurance as some include legal help.

[Oh Boy!]

Take this from a county court bailiff who does all these evictions everyday.

Firstly they are classed as squatters or illegal occupants, immediatly apply to the court for eviction you do not need any documentary evidence.

They will be given an opportunity to put their case and you will have yours. I have not met a judge that lets any illegal occupants stay because they claim a landlord "promised" or "said so".

Don't fuss or worry about, get it it going onto www.pcol.gov.uk this is possession claims on line, file it get em out!

[MrShed]

Not disagreeing for the sake of it OB, but I fail to see any way in which this person can be classed as a squatter or illegal occupant?

[GlasweJen]

You mention that the property is miles away from where you live. If the property is in Scotland and this girl is indeed a sqautter then she's commiting a criminal offence and could face jail.

I'm sure part of the criteria of being a squatter (not all that clued up on this) is that they don't have permission to use the building which obviously this girl does or else the other resident would have called the police when she just let herself in one day.

[onlynameleft]

That's right - the claim form for use against squatters specifically asks if they have ever been a tenant or licensee of the land. If they have they are not a squatter technically.

[Oh Boy!]

Sorry !

But a licence can be granted and revoked, in this regard the licence is revoked.

It matters not weather they are there legally or illegally at present, if you go to court and tell the judge you need your property back..... the illegal occupiers will have the opportunity to put their case :

Judge : So why should you stay you pay rent?

IO : er er er er er

I see it too many times with illegal occupiers they claim human rights, this right and that right, but at the end of it all it goes pear shaped. Unless I know what i am talking about, i have yet to hear a case about a squatter or illegal occupier being given residents right. if you know of such case then educate me.

Bit like an Illegal Combatant, i thought there was only on type Prisoner Of War. Whats an Illegal Combatant what do you need a licence?

You see from which book i'm reading..

If you need any further advise then PM

[MrShed]

It does matter I'm afraid - someone who has always been there illegaly, fair enough. However, if they then stop paying rent, they are not trespassing or there illegally, they are a tenant in arrears - therefore needing a court order to evict.

[Bookworm]

From what I am reading, she never started paying rent, never mind stop.

[onlynameleft]

He's granted her a tenancy or at least a licence to occupy; she hasn't simply moved in unannounced. He cannot simply issue possession proceedings without first serving notice to determine whatever interest she has. How does she know the licence has been revoked? No one has told her. He can't do that without telling her.
You're a bailiff; you do the evictions. How many times have you dealt with the proceedings up to grant of the Order and how many cases of this nature have you actually sat in on if you don't mind me asking? I know how court bailiffs work - they get handed an Order and an application for a warrant and go to work. The legal argument comes earlier over whether the Order should in fact be granted in the first place.
What will happen if she has any sense at all, faced with proceedings she will go to court and tell the judge wthat she was granted a tenancy/licence/whatever and no notice has been served determining that. End of case. Struck out, probably with costs ordered unless of course OP wants to lie on oath and say she broke in and he's never seen her before in his life.
Judges do not make possession orders on a whim. They are sticklers for procedure on this type of claim.
OK so she's in breach of her agreement as she hasn't stuck to the terms of it but the agreement needs to be formally determined before any possession proceedings are brought.
The definition of a squatter is someone who has ENTERED LAND AND REMAINED without licence or consent. She did not enter without licence or consent so she is not a squatter. Simple as.

[onlynameleft]

Originally Posted by Aequitas

A tricky one.

First of all the absence of a written agreement does not mean there is no tenancy.

There are quite a few permutations depending on whether there is a tenancy or a licence and if there is a tenancy whether or not it is an AST (a tenancy cannot be an AST if no rent is payable) and if it is a tenancy what the terms are; was anything ever said about how much rent would be payable for example? The answers to these questions may lie in the detail. I think you need to consult a landlord and tenant specialist solicitor for advice and get him to serve whatever notice is appropriate as a preliminary to eviction proceedings. Remember that whatever the status of her occupation she is protected by the Protection from Eviction Act 1977 and cannot be evicted without due process of law.

You may also care to ask the solicitor if you have an obligation to report to the police any illegal drug activity that you suspect may be going on.

Aequitas, agree it is a tricky one but rent need not be monetary - provided it has been given a monetary value a payment in kind will suffice for the purposes of 'rent' for an AST even if she never pays it.
My view in this case would be to give notice as if it were an AST under section 8 and issue possession proceedings off the back of that.

[onlynameleft]

No, not yet - my point above exactly.

[Ed999]

If the property is in England or Wales, then it is clear that the girl is a tenant. The landlord will therefore have to give her an eviction notice, under section 21 of the Housing Act 1988. He can then apply for possession, once the notice period has passed.

This is because: if she is present with the landlord's permission, she is not a squatter. She is a lawful occupier, and thus is either a licencee or a tenant.

If the occupier has exclusive possession of the premises, then a tenancy arises, not a licence. With a landlord 200 miles away, it will be difficult for him to show that she (or the tenants collectively, if more than one) does not have exclusive possession of the property, since the tenant clearly can't be sharing possession with the landlord.

A tenancy is valid even if it is agreed verbally. As rent is due under the agreement, so the landlord says, then it is a valid tenancy. If there are rent arrears, that is common enough - it does not prevent there being a tenancy.

If there was an agreement to pay rent, then the fact she was allowed an initial rent-free period does not mean there is no rent payable. Only the first month was rent-free, and even there the girl gave consideration, in her agreement to redecorate the premises.

A shorthold tenancy is valid if created verbally. It will be a periodic tenancy (i.e. no initial fixed term). The period will be a month, if the agreement was for rent to be payable monthly.

As to how to end a monthly periodic tenancy by notice under section 21 of the 1988 Act, see this thread: http://www.consumeractiongroup.co.uk...-eviction.html

A verbal tenancy can't be ended under section 8 of the 1988 Act, so the existence of rent arrears is not a ground for possession. To obtain possession the landlord would have to give a section 21 notice, and bring a seperate court action for the arrears of rent.

It is unfortunate that, under section 21, a shorthold tenancy can't be ended in the first six months, since the alternative section 8 procedure is not available in the case of a verbal letting. See: http://www.consumeractiongroup.co.uk...-eviction.html

There appears on the face of it to be nothing to prevent the landlord beginning a money claim for rent arrears immediately, even though a possession claim can't be made in the first 6 months of the tenancy.

It would be prudent to serve the section 21 notice at the end of the 4th month, or even immediately, to expire at the end of the 6th month, even though court proceedings for possession can't be begun until the beginning of the 7th month.

Any delay in serving the section 21 notice after the end of the 4th month will delay the start of the court proceedings for possession, which can't be begun until the 2 months notice has expired.

This assumes that she has a monthly tenancy, because in some other cases more than 2 months notice must be given - see the thread I referred to above.



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