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- Contacting Us
8:46 AM, 5th June 2018, About 5 years ago
An excellent informative comment fro Industry Observer on a similar article >> https://www.property118.com/tenants-partner-moving-in-likely-issues/
"UNAUTHORISED OCCUPIERS - LICENSOR AND LICENSEE SITUATIONS
Do not confuse the formalised licensor / licensee relationship as underpinned by a licence to occupy with the other scenario where we have to deal with licensees, which is that of unauthorised occupiers.
These situations occur where we become aware, possibly even in advance of the tenancy commencing, that a party other than those named in the agreement as tenants will be living in the property on an ongoing basis as their main residence. The other classic time for discovering, or suspecting, that all may not be well, is on an inspection visit.
In essence we are usually talking about either girlfriend or boyfriend moving in, or a friend staying on a semi-permanent basis. This gives rise to a licensee situation, and there are several courses we can adopt following discussion with the Landlord.
However these situations must be confronted because it is possible that something a little more serious is developing, such as the tenant having moved out and allowed someone else occupancy (known legally as ‘assignment’) or has sub-let part of the accommodation, and is charging rent himself to another party, or he may simply have some form of lodger.
Either way these can be serious situations, especially if it comes to litigation to evict the unwanted occupier who then tries to claim that they have a tenancy themselves. If that tenancy was only as between them and our tenant it may not be so difficult, though it will cause delays and complications. But if they can claim they have a tenancy as between themselves and our Landlord, then that potentially is far more serious.
To that end, and as a general principle in all matters when accepting rental payments, you need to be careful only to accept monies, or in particular to give any type of formal receipt for rental payments, to persons names as tenants in the tenancy agreement. Otherwise, unless just a one-off, you could have a situation where an unauthorised occupier could produce a string of receipts showing they had made payments over a period of time.
This could enable them to make a legitimate claim to have a formal tenancy by approbation which a Court would recognise, then giving rise to all sorts of ensuing problems, not least over possession.
Can we afford to ignore an unauthorised occupier situation and hope it will resolve itself?
It may be that you know the situation will not persist for too long, that the licensee is simply on an extended visit, or that the tenancy is shortly coming to an end and the tenant (and licensee) will be vacating. In this case you can simply monitor the situation and if it resolves itself within a matter of weeks all well and good.
However be careful, as this area is directly influenced by your Duty of Care to the Landlord and the due diligence you owe him as your principal client. If a situation goes pear shaped and the Landlord can show you knew about it and, more seriously, could have reasonably been expected to do a little more about it than just ignore it, or not act firmly enough in the protection of your client’s interests, you could be laying yourself wide open to a claim for damages if the Landlord subsequently suffers any loss.
If you become aware of an unauthorised occupier situation at any time during the tenancy (or before it even starts) then you must confront it and create good file notes in support of the action you have taken. At the very least this should involve sending the letters as set out on the following pages.
Should we formalise the situation at next renewal?
If the tenancy is shortly due for renewal and the existing tenant wants to stay then after discussion with the Landlord it may be possible to join in the unauthorised occupier (licensee) as a joint tenant on the Renewal Tenancy documents. For this you would need to charge a fee, especially if referencing is required, or considered prudent, which it certainly would be.
After all the licensee may have been around originally but not put themselves forward as a tenant because of a suspect credit record etc.
What if the situation will not imminently be resolved?
If the licensee’s position will not rectify itself in the near future, then a decision has to be taken regarding their continued occupancy of the property. If the Landlord is relaxed about this then frankly it is difficult to see why any licensee would not wish to become a tenant, as tenant status affords greater protection than being a licensee, and imposes greater obligations on the Landlord.
We do not want the unauthorised occupier remaining for an extended period because, as mentioned earlier, a tenancy can arise by as by approbation. This could result in legal acceptance and recognition of a situation as a result of not doing anything to remedy it, so the occupying licensee can end up as a tenant by default. This is especially true if they can prove they have been making a contribution to the rent by producing receipts from you.
In such situations it is essential, in order to clarify the position to all concerned and ensure that by default the licensee does not develop some sort of formal relationship with the Landlord, that the letters on the following two pages are sent immediately you become aware of a potential licensee situation. We recommend you do this whether or not you believe the situation is going to be quickly resolved either by the licensee leaving or being joined in as a joint tenant.
These letters, one to the each of joint tenants and one each to every licensee, confirm that the occupier is a licensee of the tenant, who in turn is the licensee’s licensor. In relation to the Landlord, the licensor (your tenant) is the licensee’s agent in all matters i.e. the licensee’s relationship remains one between the tenant and licensee and is not formalised in any way as between the Landlord and the licensee.
Whatever letters are sent, either licensor/licensee ones formalising that situation, or letters to the tenant and occupier outlining that no action is to be taken on the occupancy as it is understood only to be temporary, copies should be sent to the Landlord and retained on file.
If there is a rent protection policy or any other insurance set up by you on the property, advise the insurers.
Ensure too that you tell any Guarantor of the situation as it could affect their position and hence your ability to call upon their Guarantee at a later date.
Letter to be sent to tenant on discovering a possible licensee situation where the unauthorised occupier is to be allowed to remain
Re: YOUR TENANCY OF
I understand that is now residing with you at the above address.
Whereas the Landlord has no objections in principle to this arrangement I must point out that is not party to your current tenancy, rather has become a licensee of yours i.e. the relationship is between yourself and and has no rights nor exclusive possession to the property or any room therein.
occupancy of the property is not recognised either formally or informally as being any form of tenancy.
Any monies received from in respect of the tenancy shall be deemed to be a payment for you as your agent and shall not under any circumstances give rise to any rights to occupy the property.
Would you please sign and date the enclosed copy letter and return same to me in the envelope provided.
I/we acknowledge the statements contained above and agree and understand that is residing with me/us at the above property solely as a licensee of mine and any resultant relationship is between myself and the licensee alone. I confirm the licensee has no rights for exclusive possession to the property or to any room therein and that any payment made by in respect of the tenancy shall be deemed to be a payment on my behalf as my agent.
(All of joint tenants to sign) (Date)
Letter to be sent to unauthorised occupier on discovering a possible licensee situation where the unauthorised occupiers are to be allowed to remain
Re: YOUR RESIDING AT
I understand that you are now temporarily residing with at the above address.
Whereas the Landlord has no objections in principle to this arrangement I must point out that you are not party to any tenancy that currently has relating to this property, the only authorised tenant of the property is .
You are regarded as a licensee of i.e. the relationship is between yourself and , you have no rights nor exclusive possession to the property or any room therein, your occupancy of the property is not recognised either formally or informally as being any form of tenancy.
Any payments made by you in accordance with the terms of the tenancy as between the landlord and shall be deemed to be payments made as agent of and shall not under any circumstances give rise to any rights for interest in the tenancy in your favour.
Would you please sign and date the enclosed copy letter and return same to me in the envelope provided.
I/we acknowledge the statements above and further agree that my residing with at the above property is solely as a licensee of and that my formal relationship is therefore between and me alone. I also understand I have no rights of exclusive possession to the property or to any room therein and that any payment made by me in accordance with the terms of the agreement between the landlord and shall be deemed to be payments made by me as the agent of
(All licensees to sign) (Date)
(All licensees to sign) (Date)"
8:49 AM, 5th June 2018, About 5 years ago
However in this situation unless you are an expert it will nearly always save you time and money to employ a professional eviction specialist such as Paul Shamplina's team at Landlord Action.
Please see our evicting tenants page >> https://www.property118.com/evicting-tenants/
11:27 AM, 5th June 2018, About 5 years ago
I am struggling to follow the facts as described. It is not clear who moved in 2009 and then intended to move in 2018.
I think you will find that the Wife is and was a Tenant with an interest in the property. A tenancy does not need to be in writing.
A waiver should have been taken from the wife at the outset.
As there is now a breach a s8 notice should be served on both wife and husband and proceed as usual.
It is always best as good practice to serve a s21 notice along with a s8 should the tenant rectify the breach prior to the court hearing.
In short just proceed as if the wife were named on the written tenancy.
Chris @ Possession Friend
11:53 AM, 5th June 2018, About 5 years ago
Neil is right you need specialist help - Competitive Possession available from http://www.PossessionFriend.uk
( get quotes from both )
12:02 PM, 5th June 2018, About 5 years ago
It seems to me that the wife could claim to have a tenancy, especially if she can show that she has contributed towards the rent. It's a little late now but in these situations, it's best get to a deed of postponement signed by anyone who is resident and over 18 who is not a signatory to the tenancy agreement.
12:09 PM, 5th June 2018, About 5 years ago
Serve him notice (even though he's not there). Upon expiry apply to Court. Judge will grant Possession (at a hearing he won't attend). Push to High Court and have HCEOs evict all those present (including wife) on the day. Gain certificate of possession and re-let. Quickest, easiest, cheapest way.
12:36 PM, 5th June 2018, About 5 years ago
Serving notice has nothing to do with a "tenant not being there".
You will have to legally end the tenancy which has nothing to do with the location of the tenant. You have granted a legal interest which will have to be ended.
You have an occupant in exclusive possession paying rent which means you have a tenant (Street v Mountford).
With the varied opinions here you would be best served to seek legal advise which does not have to be specialist as your "problem" is not complicated or that unusual.
All you are you doing is simply gaining possession for which there is a well known procedure to follow.
You can probably get free advice from your local CAB.
14:17 PM, 5th June 2018, About 5 years ago
As Neil says the tenant granted a ‘license’ for the wife to be there which is not a tenancy, but could have become a tenancy by virtue of you accepting rent from her as Trevor points out.
However, as the notice only expired recently you could write to her and explain that as the tenant has given notice and moved out she is in the property without permission and you require her to move out. Express in writing that she is NOT your tenant and you have no intention of allowing her a tenancy on the property. Explain that any money accepted from her is for Mesne Rent only.
Accepting mesne (pronounced mean) rent does not create a tenancy which is why it’s important to document it.
As you have a written tenancy agreement for the husband and you don’t have vacant possession the simplest approach is to follow the standard eviction protocols serving notice at the property on your tenant (the husband only). Follow it to its ultimate conclusion to regain possession.
It IS worth taking legal advice from a property specialist solicitor though because a correctly served notice from the tenant ends the tenancy whether or not the tenant leaves. So it may be possible for you to apply to the courts for possession without giving two months notice. Your AST agreement and the tenants Notice to Quit will need to be checked by an expert to determine this, but it may be worth the cost.
14:47 PM, 5th June 2018, About 5 years ago
You will find it extremely difficult to argue that the wife is not a tenant. The husband (tenant) cannot grant anything in a property belonging to another.The interest gained by the Wife is one by operation of law.
The Landlord knew and approved of the occupation of the wife.
Married people live together normally in the matrimonial home not separate addresses. The fact one moves out does not change the status of the other.
All that is required is notice served on ALL tenants to end the legal interest and proceed as usual.
15:27 PM, 5th June 2018, About 5 years ago
If you do what I said, rightly or wrongly (nobody will check a single thing), you will end up with possession.