12:30 PM, 31st October 2011, About 10 years ago 7
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.
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?
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.
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.
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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