Acquired Non-Responsive HMO tenant?

by Readers Question

9:13 AM, 5th August 2019
About 3 months ago

Acquired Non-Responsive HMO tenant?

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Acquired Non-Responsive HMO tenant?

I have recently completed on an eight bedroom HMO, where all tenants work at the local Hospital, and the house has been very well managed and kept to a high standard of cleanliness and management by the existing manager (whom we have kept).

One of the eight tenants had never been a problem until one month before the sale when he stopped communicating with the vendor and manager and did not pay his rent for July. He was on a “Licence to occupy” from the vendor, as were the other seven.

We have drafted new ASTs for all, and all have signed except for this gentleman. Therefore no AST exists at this stage.
We received all the deposits via solicitors and immediately protected these, and have served certificates & prescribed information as normal on each tenant (Failure to do so usually results in a journey through traitor’s gate by river to Tower Green, where heads are removed). So this has all been done.

Efforts to contact this tenant via text, email, Phone call, letter, lawyers’ letter, and knocking on his door, both from us as new owners, the previous owner, and the manager have all drawn a blank. Thus we don’t know if he wants to stay or not. (He is still there apparently) ,

Questions:
What is his legal status? Squatter?
Can we serve a Section 21 seeing as no AST has been signed?
Can we evict in any other way?
How can we give notice to enter his room if he won’t respond to anything?

Answers on a postcard please

Ian

 



Comments

Robert Mellors

22:50 PM, 5th August 2019
About 3 months ago

If you have kept the existing manager, then surely they should be managing to contact the tenant, out of standard office hours if necessary?

In relation to the type of agreement you have inherited, and what rights this gives you and the tenant/licencee, I would suggest that you may need to consult a solicitor, as it may well be that you have inherited a sham licence that may be considered (by a court) to be an AST, but you would need a legal professional to look over the documentation to give you a qualified opinion on this, and advise you of the next steps.

Ian Simpson

5:38 AM, 6th August 2019
About 3 months ago

Yes, well we have done that and am awaiting a response, but thought there may be some pearls of wisdom to glean from the collective wisdom on here as well ...
I may be able to post up the Licence document if that helps...

Simon Williams

11:28 AM, 6th August 2019
About 3 months ago

The case law on licences vs tenancies is such that it would be almost impossible to argue that this person has a licence agreement. A licence will only really be found to exist where the person is short term, such as a holiday rental and/or the landlord provides "services and attendance" such as making up the room/cleaning the room/provision of meals, or the person is a lodger renting a spare room from a live-in landlord. If it looks like a tenancy, it is one, regardless of the label that the previous landlord sought to put on it.
In these circumstances I would be serving a section 21 notice assuming the vendor can satisfy you the person has been resident for at least 4 months. The service of a notice may stimulate the person to get communicative and if not, the eviction option remains on the table.
The court will imply the existence of an AST and reasonable terms within it, in the absence of any pre-existing paperwork.
It would surprise me if the other tenants don't know anything about the intentions of the person and can't give you any information about him.

Ian Simpson

12:36 PM, 6th August 2019
About 3 months ago

Many thanks Simon. I think that is what we will have to do then , especially before s21 gets dropped by the government!!
I suspect “Service” will have to be a photo of two of us laying the s21 paperwork on his bed!!

Robert Mellors

16:20 PM, 6th August 2019
About 2 months ago

Reply to the comment left by Simon Williams at 06/08/2019 - 11:28Spot on Simon, good summary of the tenancy v licence issues. However, IMO, the service of a valid s21 Notice (or any other type of notice, e.g. s8 or NTQ) may depend on the validity of the documentation issued by the previous owner and whether service of it can be proven (AST, Licence, gas cert, EPC, deposit protection, How To Rent booklet, EICR, etc, etc). Indeed the actions of the previous owner could also be relevant (i.e. any acts or omissions that could invalidate a s21 Notice).
As this is not straightforward in the circumstances described, (and I've not seen all the paperwork), then in order to avoid potential issues at court, then I would recommend biting the bullet and forking out for professional legal advice, as you certainly don't want to possession claim to fail at the court hearing.


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