Unauthorised person in flat

[Prop]

I have 'evicted' a tenant under section 21 after finding that an unauthorised person had moved in and was residing in her room. The rent included all bills. The unauthorised person has therefore created additional costs to me during their 4 months unauthorised residence. Additionally, the person attracted complants from other tenants.

I am holding the tenant deposit. However I intend to charge the former tenant an additional rental sum at a rate of £100 per month for the unauthorised occupation that she allowed (in contravention of the tenancy agreement), and the additional utilities costs. I will deduct this from the deposit and refund the difference.

Have other forum members had experience of this type of situation, and am I within my rights to make these charges retrospectively?

[Steve__M]

I suspect the response is that you may be entitled to your loss if you can prove that you suffered one.

But how much of the 100 pounds were you planning to pay the other tenants who were the ones who actually suffered?

[Maurice1977]

Originally Posted by Prop

I have 'evicted' a tenant under section 21 after finding that an unauthorised person had moved in and was residing in her room. The rent included all bills. The unauthorised person has therefore created additional costs to me during their 4 months unauthorised residence. Additionally, the person attracted complants from other tenants.

I am holding the tenant deposit. However I intend to charge the former tenant an additional rental sum at a rate of £100 per month for the unauthorised occupation that she allowed (in contravention of the tenancy agreement), and the additional utilities costs. I will deduct this from the deposit and refund the difference.

Have other forum members had experience of this type of situation, and am I within my rights to make these charges retrospectively?

You do not have any grounds to make such a charge, although the tennant has breached the contract you have not actually suffered any loss. As stated above, the other occupants have a case given they are subsidising bills etc.

[Nightmare4banks]

Prop,

I would just like to add:

1.You need to quantify your losses before you make deductions and should have backup evidence to prove as such.

I disagree totally with anyone that says prop is not a consumer.There are plenty true stories of problematic tenants that need a proper professional and lawful/legal approaches in dealing with such situations.

So TENANTS AND LANDLORDS ARE BOTH WELCOME!

[MrShed]

Agreed N4B - many of us are landlords ourselves, and can give a balanced view.

With regards this specific issue, I don't know if I agree with Maurice(in fact I dont - you clearly have in fact suffered a loss, although whether they are in real breach of contract is doubtful), but I would still very much disagree with the charge you are attempting to levy for different reasons(two in fact):

- The tenant is allowed to have guests. These guests can stay for an indefinite amount of time. I think it would be fairly easily argued that he was a guest, albeit for a long period of time.
- The much more important point however is that the £100 a month charge is a gross over estimate of your actual financial loss. On what detailed costings are you basing this rate? Your ACTUAL loss is ONLY gas and electric bills. Maybe water bills, IF the water is metered(not at a standing rate). Therefore, your loss should be calculated by taking a bill prior to the occupation and one after, and the increase is your actual loss per month/quarter(or better, take an average over a few bills before and a few after). I'd be amazed if this came to more than about £30 PM.

[Ed999]

There is no breach of contract, unless the tenancy agreement expressly prohibits the tenant from sharing occupation of the premises.

Where there is no breach of contract, there is no right to damages (i.e. compensation).

[Maurice1977]

The TA usually states the names of the tenants who will make use and reside in the property - it is therefore a clear breach of contract if another person moves into the property and takes residence as appears to be the case here. The Landlord therefore is within their right to terminate the agreement if there is no remedy provision for such a breach (I have never seen one and have 7 previous TA's).

The second part of the post related to the charge, I made comment that this was unreasonable given that this was clearly disproportionate to the actual loss.

I have checked this with a barrister friend and this is also their view.

[MrShed]

Originally Posted by Maurice1977

The TA usually states the names of the tenants who will make use and reside in the property - it is therefore a clear breach of contract if another person moves into the property and takes residence as appears to be the case here. The Landlord therefore is within their right to terminate the agreement if there is no remedy provision for such a breach (I have never seen one and have 7 previous TA's).

Wrong, on three counts:

- They cannot be IMPLICITLY in breach of their contract. They are only in breach if it explicitly states that no-one else can be resident in the property etc.
- It is arguable that such a term would impact on their rights as a tenant to have a guest anyway. Certainly it would be nigh on impossible to prove that they are not a guest but a resident IMO.
- The landlord cannot terminate on this basis - he would have to go to court to get a Section 8 eviction on breach of contract, which would be up to the court to decide whether it was sufficient breach or not. He actually evicted by S21, which does NOT require a reason.

[Monty2007]

Originally Posted by MrShed

Wrong, on three counts:

- They cannot be IMPLICITLY in breach of their contract. They are only in breach if it explicitly states that no-one else can be resident in the property etc.
- It is arguable that such a term would impact on their rights as a tenant to have a guest anyway. Certainly it would be nigh on impossible to prove that they are not a guest but a resident IMO.
- The landlord cannot terminate on this basis - he would have to go to court to get a Section 8 eviction on breach of contract, which would be up to the court to decide whether it was sufficient breach or not. He actually evicted by S21, which does NOT require a reason.

They would be in clear breach by having another person live at the property. The landlord would have no problem getting a Section 8 order from the court. The contract is explicit in terms of naming the tenants and would cover others residing at the property.

I suggest you get your facts right Shed, you are providing misleading information. Go back and read the thread question at the start!

[Joa]

Laving the issue of additional costs which the "unauthorised" person caused to the OP; the tenant is allowed to have guests or house-sitters in their absence. Blanket restriction would be considered an unfair term.
But yet again, we have not got enough information: was the person residing with or instead of the named tenant? Was there a sublet situation?
Monty, could you properly substantiate your statement that tenant

would be in clear breach by having another person live at the property.

Have you seen the tenancy agreement? Have you asked OP whether it contaned a clause prohibitting subletting, assigning or guests? What do you mean by "clear breach"?

[Monty2007]

[quote=Prop;1187713]I have 'evicted' a tenant under section 21 after finding that an unauthorised person had moved in quote]

End of story, if its true of course

[MrShed]

Monty, frankly your statement above is baloney. I cant even be bothered to rise to it. If you really want to continue the conversation, please, feel free to produce case law where a section 8 eviction has been successful based upon an implicit breach by introducing "unauthorised" residents, where there was no explicit requirement not to have other residents, and also where the argument that the resident was legitimate under the right of the tenant to have guests was used, unsuccessfully. Then I will entertain a conversation regarding it.

[Monty2007]

ouch!

[Joa]

frankly your statement above is baloney

yessssss! not only I agree but I am pleased to see that there are other mavericks who like to slip the leash occasionally

Also: Monty, Monty, but you did not answer any of my valid questions, it makes me wanna cry! I suppose you can't really answer them, can you?
Ah, lesson learnt, huh?

[Monty2007]

Originally Posted by Joa

Q1. Have you seen the tenancy agreement?

Q2. Have you asked OP whether it contaned a clause prohibitting subletting, assigning or guests?

Q3. What do you mean by "clear breach"?

1. Obviously not, but I have never seen a TA that does not clearly specify who the Tennant's are!

2. It is very unlikely that there is a provision for subletting. The question did not specifcy guests; I Quote "an unauthorised person had moved in". Clearly not an overnight guest!

Perhaps the poster would like to clarify?

3. There is clear breach. Any persons, other than the specified tenants will cause this material breach of the agreement. The issue comes down to the remedy provision, if any.

Otherwise you cold go and rent a house and move a load of folk in and charge them rent.............get real!

I have seen more then my fair share of such agreements and if you think the above is incorrect then so be it!

[caledfwlch]

Im confused!
Every Tenancy agreement that I have had, has always included a bit about, you may have guests stay, but not for more than 2/3 unbroken weeks at a time.

I was told it was something to do with, if a "guest" stayed for a certain unbroken period then they could legally become a tenant of that property. So someone knowing they are being evicted at the end of their first 6 months, could in theory have a mate move in without the landlords knowledge for the last month or whichever qualifying period it is, thus the mate then creates for themselves a new 6 month tenancy agreement by default and cannot then be evicted, for the usual 6 months.

could be completely wrong or out of date.

[Monty2007]

1st part of original thread reads as follows:

"I have 'evicted' a tenant under section 21 after finding that an unauthorised person had moved in and was residing in her room."

Moved in and was residing = NOT A GUEST!