Ending a tenancy and sorting out a subletting mess?

by Readers Question

15:58 PM, 19th December 2016
About 2 years ago

Ending a tenancy and sorting out a subletting mess?

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Ending a tenancy and sorting out a subletting mess?

I have a property which I have had tenants in for 9 years. The rent is now well below market rent and I wish to bring the tenancy to an end, tidy the place up (if it needs it – the tenants look after it very well) and re-let. They have always paid the rent on time (apart from when they have to go away and pay 3 weeks early!!)problem

Anyway there are a couple of side-issues. (1) I have chosen to overlook that the tenants have always sub-let / taken lodgers. Two names on the agreement (only one of whom I ever speak to – the other may have moved out already) but 4 or 5 in the property. I always speak to and get all of the rent from the ‘lead tenant’ and know nothing about the rest (2) I need to check that the deposit is correctly protected (it is protected, but I need to check I have everything done by the book, eg related to the current lease not a previous one with the same tenant names). (3) The lead tenant has health issues and has been trying to get on housing benefit for ages (I suspect the only reason she has not moved out is that she effectively lives rent free off the rest of them). I fear she may refuse to move without a court order to maximise her chances of getting housed by the council.

And I have another big issue. I don’t live in the area where the property is and have just found out that the property is a non-mandatory HMO that should have been licenced for the last 12-18 months. I went to apply for the licence and the first thing that they want is the tenant names. I can’t lie and say the names on the AST, not least as this would mean only two occupants and I would then need planning permission to let to 3 or more (when the reality is it has been let to 3 or more for 9 years). But I can’t tell the truth as I don’t know who lives there. And I don’t much want to ask the lead tenant as this might alert her that I have plans to evict, and it would mean that my ‘turning a blind eye’ argument would be pretty weak.

What should I do and in what order?

I am seriously thinking about employing a specialist firm the the eviction in due course (any recommendations?) In the meantime I am wondering whether I can get by on advice from somewhere like here, or whether I should take legal advice (any recommendations?)

In my favour the property was refurbished in 2007 and has been very well maintained since (external repairs by me, inside the tenants have looked after it better than I look after my own home, including some re-painting which I think they have done because they fear that the more times they call me for things the more likely a rent rise will be.)

Peter



Comments

Neil Patterson

16:01 PM, 19th December 2016
About 2 years ago

Hi Peter,

I am not sure where to start with this one.

i think you are correct, but I would seek professional assistance now to try and collate a plan before you accidentally make anything worse.

Please see our tenant eviction page >> https://www.property118.com/evicting-tenants/

Yvette Newbury

11:25 AM, 20th December 2016
About 2 years ago

Why not sit down and have a chat with her and explain that the present situation cannot continue due to all the new legislation that has been brought in for tenants sharing accommodation and that you now need to get the property straight for an inspection by the local authorities. You can explain that you realise that without taking in others she may not be able to afford the rent but she is putting you in a position whereby you may get into trouble with the local authorities and could culminate in both her and you losing the house. Explain that you now need to serve on her a notice to quit the property which she should take to the Council as there may be an option for her to be rehoused (if you think that is her angle) or you could possibly give her an incentive to leave in the form of a cash payment if you believe that would be of interest to her. Either way, if you are able to service notice on her (subject to deposit protection being correct) and if she does not vacate at that time, you can take the proper steps thereafter to ensure she does leave eventually. I would definitely recommend talking to a legal eviction specialist BUT that doesn't stop you having a chat with the main tenant first (even if you don't live locally it could be worth your whilst visiting).

You could also be in for a surprise - she may well be subletting the flat and making a tidy profit and that's her reason for not moving! Hence the cash payment may work if that is the case. Decide on a course of action and take the consequences and move on.

Kate Mellor

14:02 PM, 20th December 2016
About 2 years ago

Hi Peter,

It would seem to me, that as your tenant is in fact the landlord to her sub-tenants the onus may in fact be on her as their landlord to apply for an HMO licence, worth checking anyway as you are not the landlord of the subtenants.

As the sub-tenants have either an excluded tenancy, or an excluded licence, they do not have a right to remain in the property once their landlord's (your tenant's), tenancy legally ends. For this reason I would look to carry out the standard s21 eviction on your tenant. It may well be that you can ignore the existence of the other lodgers/sub-tenants for your purposes as it will be the responsibility of your tenant to give them notice.

Make it clear to your tenant that if after she leaves any of her lodgers remain, her tenancy will still be in force. This will mean that she will still be liable, as the only actual tenant, to pay you ALL rent due until you have vacant possession of your property.

If, as you suspect, you need to obtain a court order to remove your tenant, I would have thought a bailiff will remove any and all residents of the property come eviction day regardless of who they are, but you should look into this and ensure that everyone is out.

As a side note, it is important to be aware that landlords have a responsibility now to carry out formal Right to Rent checks, which your tenant may well not have done. You could leave yourself at risk of being held liable for this failure, which is now a criminal offense, if any tenants or sub-tenants are found to be illegally resident in this country.

This is just my take on your situation as it appears to me, and I must reiterate, I'm not qualified in tenancy law. You should obtain professional advice before proceeding.

Michael Freer

15:35 PM, 20th December 2016
About 2 years ago

Taking a slightly different view of this, you have a tenant(s) that look after the place and behave well. Some might say these are gold dust.

You want to evict them to have new tenants move in and increase the rent in the process. Supposing they don't look after the place and cause trouble, you might be up out of pocket.

My initial reaction was go and see them and inform them that due to regulations that are in place to protect them you'll need to cover the costs and so are forced to raise their rent. They may say, OK, you don't know for certain. If they do, work with them to get the license for the HMO and have all of them sign a new AST, with the new rent levels. Resolve any potential deposit issues by refunding what's been taken and then take and register new ones from everyone. You are then legal, compliant with regs and have tenants who look after your property, everyone wins.

One question, before you do any of that, does your mortgage allow for an HMO? If not, as the others have said use the specialists to help you evict the current tenants and get yourself back to the correct type of occupancy ASAP, before the lenders call in their loan.


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