Don’t Shoot the Messenger #7 – When a Tenant Takes on a New Partner

by Ben Reeve-Lewis

12:30 PM, 31st October 2011
About 9 years ago

Don’t Shoot the Messenger #7 – When a Tenant Takes on a New Partner

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Don’t Shoot the Messenger #7 – When a Tenant Takes on a New Partner

When a tenant has a beef with their landlord, I’m the guy they go to. My job is to either negotiate or prosecute, depending on the circumstances. This occasional and random series aims to let landlords know the common complaints that are made about them, the laws that cover them and how to deal with them.

My landlord is complaining that I have moved my boyfriend in and wants more money.

Tada!!!!! The perennial old favourite. Know this one?

Boy meets girl, love is in the air, what can keep 2 lovers apart? A landlord? Think again.

You rent out your property to Serena, she lives there in her 1 bed flat for a year, chaste and responsible and somewhere along the way meets Clint at the office Xmas party. Sparks fly, he stays the night and after a few weeks stops going home. They’ve become a couple.

The landlord finds out and says Clint shouldn’t be there and that as he is there they want more money from Serena. You accuse Serena of subletting. But where do you stand legally?

Subletting:

Everyone has heard of sub-lets. A proper, dyed in the wool sub-let is where the tenant moves out and sub-lets the entire property to another person, but this hasn’t happened here.

It is also possible to sub-let part of a property, like a room when a tenant takes in a lodger, but again, that also isn’t what is happening here, they are sharing the flat.

Sub-lets are a massive social problem. The government has a £500 reward in place for neighbours to shop people they know to be subletting social housing properties. Estimates are that it costs the country billions and plans are afoot to make sub letting council and housing association properties a criminal offence as an act of fraud.

The keys to a council flat in London go for around £8,000 on the black market at the moment, I know, I live here, I’ve been offered. I frequent those sorts of pubs.

Serena & Clint

Back to love’s lost dream. What have you got here legally? A sole tenant who has taken in a partner. No tenancy has been created. The landlord has no legal or contractual relationship with Clint, and Clint has no legal or contractual relationship with Serena. As an old Glaswegian girlfriend of mine used to say “his bum’s oot tha windae”.

He is just what is termed her ‘Bare Licencee’. He has no tenancy rights with her and isn’t entitled to a possession order from her before he can be made to leave. As a Bare Licencee all she has to do to get him out is tell him to go.

If Clint came to me and complained that Serena had thrown him out I would tell him that he had no legal rights there in the first place and that I could not get him back in.

We are presuming in this typical scenario that she is responsible for her own utility bills, so the landlord doesn’t have to pay higher bills because of the extra occupant.

You could take the view that the property might suffer more wear and tear than intended with 2 people in occupation, but in such a case that liability is still on Serena anyway and a claim could in theory be made on her deposit, independently of Clint.

Even if rent arrears accrue for some reason the landlord would pursue Serena, she would have no legal basis for saying Clint didn’t pay me his half last month. Clint aint on the contract so has no liability for anything other than to Serena as the head tenant, after all, he is just a Bare Licencee of hers, like an overnight visitor.

The tenancy agreement may have a clause prohibiting bringing in other people, in which case the landlord could launch a claim against Serena for breach of contract, which is ground 12 of the 17 different grounds available. However, this is a discretionary ground and even if proven, the judge would still have to find it ‘Reasonable’ to take away Serena’s home and would have to consider how the landlord was being disadvantaged by the arrangement and whether loss of Serena’s home would be ‘Reasonable’ redress for the breach. If they could see no financial loss or other detriment to the landlord’s position they probably wouldn’t grant possession even if breach of contract were proven.

So, as galling as you may personally deem this arrangement to be there isn’t actually much going on apart from a possible breach of contract, remedy for which would be at best questionable.

Love on the dole

I had a recent case which was identical to this one except that in mine the new boyfriend was an absolute nightmare, blocking other resident’s parking bays, selling cars on the front and getting aggressive whenever anyone tried to talk to him about it.

The landlady, a lovely woman, a police officer, who said she never had any issues with the tenant before this, was beside herself because of the complaints she was getting from her tenant’s neighbours. She felt, as a responsible citizen, that she had to act to protect the peaceful occupations of the neighbours and I heartily support her actions, which was why I spent ages working with her.

Just as with the fictional Serena and Clint, the dreadful boyfriend had no security of tenure at all but the tenant was either too intimidated or too in love to tell him to leave. What the landlady then had available to her was ground 14, neighbor nuisance, which again is a discretionary ground for possession.

She chose to go the Section 21 route and gain possession against her tenant on the no fault – expiry of the fixed term ground, a wise choice.

Once possession came through, the tenant made a homelessness application and was told she was intentionally homeless because she failed to control her partner and this resulted in the landlord going for possession when she would not have done so if either the tenant hadn’t moved him in or he had behaved himself once in occupation.

Equally sad was the fact that as soon as she lost her flat he ran off with another woman for a free home, while she was left to fend for herself and is presumably sofa surfing with her child as we speak.

You see, tenants can be as effected by this as landlords and don’t always get off scot free.


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Comments

HMOLandlady

15:05 PM, 31st October 2011
About 9 years ago

This can be a common problem - especially in HMOs where an additional body puts strain on the communal areas. E.g. Boy goes out one night, looking good, bit of cash in his pocket and the Lynx is taking its effect and ends up inviting Girl home. Girl thinks "This is OK, free accommodation, watch telly all day till Boy comes back, invite mates over for a coffee" and bingo! Suddenly I have 4 tenants on the phone complaining that they can't get into the bathroom, there's a bunch of unknown girls chatting in the kitchen (with their clothes on,) and the other tenants feel that there privacy has been invaded.

Normally, I have a word with Boy and let him know that he's ultimately responsible for her behaviour and hope that the romance plays itself out within the next 48 hours. The problem really occurs when Girl falls out with Boy, but takes a shine to Boy in room next door!!!

Ben Reeve-Lewis

16:25 PM, 31st October 2011
About 9 years ago

Ah I dont deny that an uninvited person cant create problems, I was just highlighting the legal angle to dealing with them. If the tenants who phone you complain they cant get into the bathroom then what you are liekly to have available is breach of contract or ground 14 in more extreme cases.

Having said that I have always thought that there should be a hybridised set of letting rules for HMOs because the way normal tenancy rules work doesnt really allow for problems of overall property management or the problems specific to HMOs. People running supported housing projects are caught in the same trap and often by sheer dint of who they are their occupants can have drink, drug and mental health problems. Talking Section 8 and ground 14 to them is a waste of everyones time....the law rarely helps when someone with schizophrenia is chanting at 2am when a move to annexe would solve the problem without daft paperwork

Ian Ringrose

13:01 PM, 3rd November 2011
About 9 years ago

What if the letting agreement had a per night charge defined in it for letting someone else live in the room, would that help in the HMO case?

Ben Reeve-Lewis

14:22 PM, 3rd November 2011
About 9 years ago

My guess would be yes Ian. But it is a guess as I have temporarily misplaced my copy of the OFT rules on unfair contractual terms, if it were to be considered a legitimate contractual term but as ever the problem would be in the enforcement of the term with an unsympathetic judge and recovery of the sum even if you won.

As with so much in housing law, what the law says on what goes on in the real world aint always the same thing

Recardo Knights

14:56 PM, 14th October 2012
About 8 years ago

Hi Ben, Try this for size, I have a two bed upstairs flat in a small block of four flats rented over the years to a couple and their child. Child now 16-17 yr old boy.
The mother has now taken in her Sisters daughter (17-18yrs) and her boyfriend same age, and her sisters Son (19 ish) and at uni. The sisters care contract ran out so she left the kids and returned to Nigera.
On doing a property inspection yesterday there is now 2 double beds in each bedroom, and i beleive some one is also in the lounge.
This 2 bed flat now has 6-7 people instead of three, as stated on the tenancy and the building insurance. There is no more rent been offered but a lot more wear and tear.
The oter 3 flat have old couples in there 70's, and it is said people are coming and going all day.
The couple i rented to are nice polite people, but she does not seem to understand there are too many people in the flat. She can't afford to move and all these tenagers have nowere else to go. They are still in study and have no income, she says the council will not help.
What would you sugest as I don't realy want to server her notice after 5 years.
Recardo

Ben Reeve-Lewis

15:39 PM, 14th October 2012
About 8 years ago

Recardo you seem to be caught between two positions. On the
one hand you seem to suggest that the tenant pays their rent and is otherwise a
decent tenant, hence your reluctance to evict but on the other hand you are
getting complaints from the elderly neighbours who you feel a responsibility
to, which is commendable.

There are only 2 ways to solve things like this, legal
action or negotiations. The threat of the former can often help with the
latter.

Your tenant is doing her bit by her extended family but that
isn’t your concern as a landlord.

I don’t know what you have written into your tenancy
agreement so I cant form an opinion on whether or not they are in breach, which
would allow you to seek a possession order.

They could be running foul of overcrowding rules but I doubt
the council would be that interested, other than to blame you for it. (Real
life, sorry).

As I said in the article (written a year ago so I forgot it)
a tenant is allowed to have guests, even those who stay for a bit. You just
have to decide on your priorities.
Holding on to a decent tenant or responding to complaints made

20:56 PM, 14th October 2012
About 8 years ago

Recardo; are you a charity to house all comers!?; do you have a tenancy with a single tenant or not?
There could be many more family members coming to your flat.
Just imagine if there was a fire and you knew how many occupants were at the property.
Tell her to get rid of the other people or you will boot her out.
She is taking the p.
It is not your problem if she or her extended family end up homeless.
Advise that all other occupants have to leave or you will commence poissession proceedings, hope you served a S 21 years ago.
These people are not 'guests'.
The council will house them and if not they will have to return to their country of origin won't they?


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