No copy of agreement and tenant has dementia?

by Readers Question

10:42 AM, 28th September 2017
About A year ago

No copy of agreement and tenant has dementia?

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No copy of agreement and tenant has dementia?

I own a property which I purchased 11 years ago with an in-situ tenant who is under an old style Assured Tenancy (not an AST). Unfortunately the housing association I originally bought the house from claimed not to have a copy of the tenancy agreement and the tenant himself had lost his copy over the years (he has lived there since the early ’70s), so all we have is notifications of prior rent increases, but all parties seem to agree on this originally being an Assured Tenancy.

Anyway the rent has not been paid for the last 2 months.

It seems the sole tenant was in hospital so we gave him some leeway. Now we are informed by the tenant’s son that his father has dementia and has had to go into a residential care home and will not be returning to the property.

The son does not have power of attorney over his father’s affairs, indeed no one does. We wish to take back possession of the property, but how should we do this? The son has said he will sign a release but without power of attorney I am not sure this is legally binding.

1) Should we write to the son and ask him to get his father to sign a letter to terminate the tenancy? Not knowing the degree of dementia I am not sure this is possible.

2) As he is 2 months in arrears we could issue a Section 8 notice to evict the tenant. However this seems a bit of overkill seeing as he needs to leave himself and will probably slow down the process. Plus we do not want to cause the family additional stress.

Regarding the rent, his son says that his father is in debt to the bank and that he himself is having to pay towards his father’s care. It seems unlikely we can recover the outstanding rent and as it is an old style tenancy there is no deposit.

That said we would be prepared to forego the 2 months rent for a quick solution and return of the keys.

As an aside I assume we will not be responsible for any council tax until the tenancy agreement is terminated?

I believe this also is not currently being paid as the son seems to think they are no longer liable.

Thanks in advance for any suggestions.

Bob

 



Comments

Neil Patterson

10:49 AM, 28th September 2017
About A year ago

Hi Bob,

I am not sure where to start with no tenancy agreement. Would the solicitors still have a copy from the purchase by any chance?

If you have a good relationship with the son that would be most helpful and find out if the father is still able to manage his own affairs.

If it gets more complicated I would seek professional help >> https://www.property118.com/evicting-tenants/

I doubt he can pay the council tax bill and will inform them that he has moved out so this may be worth a discussion to head it off at the pass.

Robert Pais

13:53 PM, 28th September 2017
About A year ago

Reply to the comment left by Neil Patterson at 28/09/2017 - 10:49
Hi Neil
Thanks for your thoughts. No there was no tenancy agreement when I bought the property. It seems the property changed ownership through several housing associations and it disappeared along the way. I have been able to increase the rent over the years no problem without. To be honest I don't really want to go through the eviction process, I would prefer the tenant to just give notice to vacate the property. But his illness might make this difficult or impossible, plus the son is putting the onus on me to provide him with some letter or other to sign in order to relinquish responsibility. But I don't want to make any mistakes with this.
And no it is not a great relationship with the tenants son. He is an absolute pain!
Bob

Nick Price

0:37 AM, 29th September 2017
About A year ago

This is not so complicated. Draft a notice of termination, state that the landlord and tenant mutually agree to terminate the rental agreement, due to tenant's ill-health. Also write that the Landlord in return for possession of the property by [insert date] agrees to forfeit the rental arrears. Add that any belongings left behind will be considered abandoned and the Landlord shall have the right to dispose of it. Sign this, have the tenant sign it, and have the son witness it.
Get back your keys, and change the locks. Expect to have a bit of expense in clearing away stuff from the house (but you can begin planning that already and then to relet).

Graham Bowcock

10:02 AM, 29th September 2017
About A year ago

Dear Bob

If the tenant has been in residence since the early 1970's he will not be an Assured Tenant. He will be a protected tenant under the Rent Act 1977. he would only be an Assured Tenant if he was not the original tenant but had a succession. Assured Tenancies did not come in until January 1989.

As s8 notices apply to Assured Tenancies you cannot use that route to gain possession. As Rent Act tenancies are becoming increasingly rare you would be best advised to find somebody with expertise in this regard.

Whilst discussing matters with the son may help in practice you do need to be careful if he does not have Power of Attorney. Strictly speaking you should not discuss father's matters with the son, although this may be the most practical way forward. Son may agree to clear the house and hand back possession without the need for any form of notice, but just be wary and try to make sure father is in full agreement. not easy, I know.

As for Council Tax, if the house is empty the tenant may be using up the period when nothing is payable, which will reduce your period of entitlement when you take the house back. I don't think there's a lot you can do about that; it sticks to the house not the person.

Regards

Graham

money manager

10:11 AM, 29th September 2017
About A year ago

It would appear necessary for the son to obtain both a care and financial EPA anyway and can't validly sign anything in respect of his father until he does.

Gareth Archer

10:19 AM, 29th September 2017
About A year ago

Bob

I agree with Graham. It appears you have a Rent Act tenancy to deal with and you need to be careful in how you address this. I would not suggest that a notice of termination/surrender is relied upon as signed by the tenant as his mental capacity to enter into any such agreement is in doubt. Neither is it simple to seek a surrender of a Rent Act tenancy.

If the tenancy continues and the tenant dies, it will not automatically end upon his death. It would be worth having a chat about the matter with you if you want to discuss.

Rob Crawford

11:56 AM, 29th September 2017
About A year ago

Hi Bob, I have a relation in a care home with dementia and even though she will be in care until she passes on, the last thing she would allow the lose of her home, where in her mind she perceives she will return at some point. Does the son have access to the tenant's Will? Power of Attorney due to mental health and death may be included. It's a bit of a long shot but may be worth checking. Even so I believe that with the help of his father's doctor and a solicitor, a PoA can be quickly provided. Once this is in place you can proceed with gaining procession through the son.

Chris Harris

15:54 PM, 29th September 2017
About A year ago

Reply to the comment left by money manager at 29/09/2017 - 10:11
Hi

I believe that if the tenant already has dementia then he is deemed unable to create an LPA ( I think and EPA was the old version), as he is appointing an attorney to act for him, and if he is not in full possession of his facilities clearly cannot do this. I suspect that his son might need to refer to The Office of The Public Guardian and /or The Court of Protection. I think expert help is probably needed by both you and his son in any event.


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