Big mistake but I just want my house back?

Reply to the comment left by Sally Parrack at 05/03/2021 - 13:18
It's a difficult situation. I have a tenant like this which I'm in the process of evicting. The Council won't rehome till l can provide a court order of eviction. They owe me rent that they won't pay. I tried helping them but l have gone far enough and now it's time to take legal action.

Reply to the comment left by Lesley Smith at 06/03/2021 - 17:31
I have spoken to council a couple of times.....most recently Monday, disappointingly they told me they were about to close her case as they hadn't heard from her since September 2020.....he said do I think she's buried her head in the sand 🤔🤔🤔 Yep !

Reply to the comment left by John Mac at 06/03/2021 - 13:15
Agreed 100%, what a farce! You often hear stories about judges not knowing tenancy law very well, but you’d like to think an eviction specialist would be pretty well versed!

Reply to the comment left by Kate Mellor at 07/03/2021 - 12:28
Yep I've have judges who don't know that you can use a Section8 with an AST!

If a mandtory ground is satisfied, there is NO wiggle room!

Hi Sally, I have a lot of ideas for you which I am currently writing up to give you some options for preparing for your hearing. Just a couple of questions first though.

1) Can you tell me whether you took a deposit and if so whether it was appropriately protected?

2) You mention that you have the person who witnessed the tenancy agreement. Do they remember signing it? Did they witness the tenant signing and would they remember each other? Is the witness independent? Will the witness sign a statutory declaration or make a witness statement to that effect?

3) Do you have any contact information, or details of the ex-partner which might allow a 'track and trace' or debt collection agency to locate him?

Reply to the comment left by Kate Mellor at 07/03/2021 - 16:44
Hi Kate
I didn't take a deposit...naive or what 😟.
The independent witness signed for both parties and is willing to make a witness statement to that effect.
The ex partner I have no contact details for unfortunately. Just tenant on tenancy agreement. Many thanks

Sally, I suspect I can see where this woman is going with this! If she can convince the court that her ex-partner is the tenant and not her then you will have to reissue the eviction notice to him as technically, he has never given you notice to end the tenancy and you haven't issued him a S8 notice, so this notice currently before the court would become invalid. I suspect she's had some very shady and very clever advice from her representatives.
If I’m right and she gets this thrown out for an invalid notice you will need to start again by reissuing the notice at the last known address to the ex-partner, or one notice to each of them giving four weeks’ notice (as the rent arrears exceed 6 months'), but how long will it take to get back to court?

I have several suggestions you might like to run past your legal team so you can be prepared for any eventuality. I’m not a legal expert by any means but I have completed a couple of one day courses on gaining possession, and I have some ideas for you to consider which I hope you will find helpful. Because they are going to be long and convoluted, I’m going to put them in separate comments.

Reply to the comment left by Kate Mellor at 07/03/2021 - 17:07
Thank you so much for this......much appreciated.

The best way I can think of to circumvent her team getting your notice thrown out as invalid is to find some proof that she (Ms Y) is the tenant and not her ex (Mr X) (old emails?). You could contact her ex and incentivise him to sign a Witness Statement, or even better make a Statutory Declaration (which is signed in front of a solicitor) for you to provide as evidence to the judge, saying that: “Ms Y is the legal tenant and did sign an AST, even though he in fact made the rent transfers to your account on her behalf. That she had insisted on being the only tenant named on the agreement which is why he didn't give notice when he left the property”. You could ask your eviction specialists to draft the declaration and he would then need to pop into a solicitor and sign it. You should offer to pay for the appointment, but make it clear that if he refuses to help and you are forced to reissue the eviction notice in his name then he will be liable for ALL the unpaid rent past and future, right up until you receive the property back and that you will pursue the money from him to the fullest extent possible if he refuses to provide evidence of the facts on your behalf. You may even be able to persuade him to appear in court to support your case. The only concrete evidence tying either party to the tenancy are the rent payments and they were made by him, so if the tenancy is found to be his he will be 100% liable for your losses regardless of their being no written agreement until it can be legally ended.
A tenancy cannot be legally ended unless the tenant gives their notice in accordance with the statutory requirements (assuming no written agreement), and gives full vacant possession to the landlord, or the landlord gives notice according to the statutory requirements, and the tenant gives full vacant possession either voluntarily or following the correct legal process.
Unless the guy already has a string of CCJs and no job this is going to be a serious incentive! If he does, then a monetary show of your gratitude may be necessary.
You must have some information about the guy, at least his name? Do you have any old emails from when they applied for the tenancy, that might contain some more info, NI number for example, email address? There are private track and trace organisations or debt collectors who are very good at finding people for a very reasonable fee.

If you are unable to find your tenant’s ex-partner, do you have anything which ties the two together as both living at the property? If so, produce it and show the evidence of the rent payments.
If I'm right and her reps then try to say that the notice is invalid as he's the tenant not her, you need to be ready to prove that SHE IS NOW THE TENANT in either case, as through the actions of both parties following the departure of Mr X, there was an intention by both yourself and Ms Y that she would continue in the property as the tenant, thus creating a statutory tenancy between yourself and Ms Y following the departure of her partner, despite the fact that no rent was actually paid.
‘In certain situations, the law will imply the existence of a tenancy even where there has been no agreement between the parties. It should, however, always be borne in mind that a tenancy arises as the result of ‘a consensual arrangement between two parties’ (Javid v Aqil [1991]1 All ER 243 per Nicholls LJ at 247h). A tenancy will be implied only where it can be inferred from the parties’ behaviour that they intended to create a tenancy.’ (Garner and Frith, 2017, p38)
That usually is in the form of rent being paid, but can also be shown by the clear expectation of both parties that rent is due and payable as was shown in the following ways:
1) Rent was demanded directly from Ms Y and not Mr X, (letters or emails addressed to her when rent was unpaid thereby showing an expectation of rent due from her, which shows your interpretation of the situation was that she and not Mr X was liable for future rent. You clearly by your actions viewed Ms Y as the sole tenant. (You didn’t request contact details for Mr X to pursue him for rent arrears, which you would obviously have done if your agreement had been with him).
2) Ms Y presumably communicated with you, showing an intent to pay rent and a desire to remain in the property.
3) Ms Y also applied for housing benefit, making a legal statement to the council that she is the tenant, and her rent is £X pcm. This shows both her intent to create a tenancy AND sets out the terms of that tenancy, specifically the rent amount and the period of the tenancy. Therefore, defining the term length ie monthly periodic (if rent is due monthly as it usually is).
Make a written record, (or produce a diary) of your calls to the council and what they said to you; any calls or conversations you had with the tenant and what was said to provide to the judge.
You need to provide every possible piece of evidence you can to show that her actions since her partner leaving are consistent with both of you accepting her as the ongoing tenant in the property, and therefore your S8 notice to her IS valid. If the notice is deemed valid the judge has no choice but to grant you possession.
Ask your representatives to help you produce a bullet point outline of your case for the judge, giving the facts and the arguments and the list of evidence you are providing to prove she is the legal tenant and that she is in arrears.