Help needed to evict a problem lodger

by Readers Question

12:59 PM, 29th June 2013
About 6 years ago

Help needed to evict a problem lodger

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Help needed to evict a problem lodger

Help needed to evict a problem lodgerI have a lodger living in my flat, its a studio flat and she’s been with me for 18 months. At the time she moved in it was a council flat and I was the tenant, and I notified the council that she was living with me. If I am being honest I had some financial troubles and her contribution helped with my bills and keeping my head above water.

Since she moved in I have gotten a better paying job(about 6 months after she moved in), now travel with work and have recently bought my flat from the council. 

Since I started traveling with work she has stopped paying rent, and has now refused to leave. She has threatened me with going to the council and telling them I sub let the property to her as I was not always in residence. I have not informed her that I now own the place and as this assignment with work is one of my longer ones. So far so I have not been back to London for the better part of this year. In this time she has refused to speak to me, respond to texts, emails or phone calls and has changed the locks to MY flat.

She’s refused to leave and I am unsure of my rights as I am not always in residence in the property. There is no tenancy agreement between us and she did not pay a deposit, it was an arrangement of convenience for both of us. The flat is my primary residence in the UK, all my correspondence and bills still go there, although when things got really difficult between us I moved in with my boyfriend whenever I came home.

Can I just change the locks or put her things outside when I am in residence if I can prove I have given her reasonable notice? Any advice would be much appreciated as she’s also threatened legal action if I move out her things from the flat.

Thanks.

Tonya



Comments

Ben Reeve-Lewis

15:20 PM, 2nd July 2013
About 6 years ago

@Michael The legal problem with your suggestion is that to be a resident landlord and thus create an excluded licence (Lodger) the landlord must have been resident at the start and since the letting began. If the landlord moves out then they lose their resident status and the security of tenure of the occupier will change from Excluded Licence to common Law tenant. In order to evict a common law tenant 1 month's notice to quit must be served, followed by a a possession order granted by the court. To evict without the possession order would be an illegal eviction, which puts Tonya back in trouble again, so the facts and circumstances surrounding Tonya's resident status is absolutely central to this query.

On the matter of rent, it is true, as you state that there can be no tenancy if there is no arrangement for rent or money's worth in the arrangement but Tonya says "She has stopped paying rent" so we must presume that rent was in the original deal.

Sorry to sound pedantic on all I am saying here but I'm afraid 'Pedantic' is the deal. Tonya is embroiled in a legal matter, not one of common sense or 'damn the torpedoes'

Mandy Thomson

10:22 AM, 13th November 2013
About 6 years ago

I realise this an old post, but after reading it a second time, a further question comes to my mind.
This is something that has been intimated in both the original comment and the responses, but hasn’t been directly addressed.
The OP opens by saying “If I am being honest I had some financial troubles and her contribution helped with my bills and keeping my head above water.”
Later on, Mark Alexander touches on this “...two strangers sharing a studio flat ……..?”
It certainly looks as though the tenant/lodger was in fact a friend or relative of the OP. Most lodgers who are renting a room purely as a business arrangement wouldn’t decide that their landlord’s financial circumstances had improved so they don’t need to pay rent any more.
Also - and this is purely theoretical, I'm not suggesting this was the case - supposing the tenant/lodger’s financial contributions had been more than just a reasonable rent, even if she didn’t directly contribute toward the purchase of the property (which would definitely give her rights) – would this not give her a right to occupy, at least for a time, without paying any more rent?
I ask this as a large proportion of room letting arrangements are in fact between people who have a prior relationship of some kind, and are often fairly ad hoc, informal arrangements.
Thanks in advance for your thoughts on this.

Mark Alexander

7:54 AM, 14th November 2013
About 6 years ago

Reply to the comment left by "Mandy Thomson" at "13/11/2013 - 10:22":

Hi Mandy

I'm glad you've picked up on the flat being a studio, i.e. living room and bedroom usually being the same room. Was the lodger sharing a bedroom with the landlord at one time? If not, how did that work?

Even if they were sharing a bed, the lodger still wouldn't have any rights of tenure unless it could be proven that the landlord didn't actually live there.

Perhaps the tenants were at one time a couple? Even if they were, I still don't think this changes what I've said above, unless of course they were a married couple or in a Civil Partnership. I don't think the amount of rent paid changes anything.

Having said all of that, in this particular case, I think it could be very difficult for Tonya to prove that her lodger is not a tenant. Tonya is able to argue that it's her house and may well be able to prove that all the bills are in her name. However, the fact that it's a studio flat and that Tonya travels with work does raise reasonable doubt as to the true basis of the arrangement. If Tonya's lodger gets a few witness statements to say that Tonya hasn't lived at the property since the tenant moved in I think a judge may well be persuaded that Tonya's lodger is a in fact a tenant and that the eviction process for tenants needs to be followed.

As you said, this is an old thread now and the issue may well be done and dusted.

I'm hoping that Tonya will post an update comment.
.

Mandy Thomson

7:52 AM, 15th November 2013
About 6 years ago

Hi Mark

Thanks for responding to my comment on this.

Yes, I agree - if Tonya's occupier could prove the property wasn't in fact Tonya's main home, she could prove that she was in fact a tenant, and not just a lodger. If she could prove she held that tenancy after January 2013 (when the Prevention of Social Housing Fraud Act 2013 became law) and before Tonya actually bought the flat, she could theoretically prove an illegal sub tenancy!

However, I was assuming that the occupier was a former friend of Tonya's who was sharing the home with her. Again, purely theoretically, if the occupier's contribution (either financial and/or work done to maintain or improve the property) was very substantial, she might be able to prove to a court that she had a beneficial interest in the property under a constructive trust (please see HSBC Bank plc v Dyche and another [2009] EWHC 2954 (Ch) http://www.burnetts.co.uk/publications/factsheets/beneficial-owners-and-occupiers-the-dangers).
For the record, I would like to say that I'm not suggesting here that either of these 2 scenarios is true, I'm just looking at the rights of an occupier IN THEORY and I realise an equitable beneficial interest would be hard to prove.
Thanks again for any comments.

Mark Alexander

7:59 AM, 15th November 2013
About 6 years ago

Reply to the comment left by "Mandy Thomson" at "15/11/2013 - 07:52":

I'm impressed Mandy, are you a L&T solicitor by any chance?

If you are, maybe should should add more detail to your Member Profile, you may pick up some extra business as a result of people reading these comments. If you become a sponsor of The Good Landlords Campaign you will get a bio section in your Member profile too. It's well worth doing, I see the stats and member profiles are looked up by readers a lot more than you might think. Every comment links back to a members profile. People like to know a bit about who they are talking to they do get read, if only out of curiosity, but occasionally because a person wants to do business with you.
.

Mandy Thomson

14:02 PM, 15th November 2013
About 6 years ago

Hi Mark

Many thanks for your high opinion, but I'm afraid my legal qualifications only amount to a certificate from the Land Registry and the College of Law, plus knowledge picked up from working for the Land Registry then from being a landlord! A less than ideal experience of being a lodger for a while then inspired me to look into the law and other issues around licences to occupy, and I decided to research the area in depth and write my own website, as a project while I was learning web development. The site has been live since last May.

However, I will certainly look into your suggestion and many thanks for that.

Mandy

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