Student Let Gone Wrong – Advice Required

"a person who is not in the UK legally has no right to a tenancy nor the protection of the law that relates to tenants."

Based on what?

Whatever the case might be, here the tenancy already exists, and will not cease just because the tenant leaves the country, or has no right to remain.
In addition to that, a contract remains binding on both parties.

The fact that the tenant could be deported, or that he could leave willingly and thus in effect offer to surrender the tenancy (or accept the landlord offer) is not the same thing as the tenancy and contract automatically becoming void as a consequence of the change of immigration status.

One can be a tenant of a property in the UK will residing abroad.
Here the tenant is proposing to leave belongings at the property and to continue to pay the rent. I have a hard time understanding how the tenancy would just 'disappear'.

Reply to the comment left by "Industry Observer " at "18/11/2013 - 19:02":

You are right there is no mention of the cousin moving in but IF he did......................

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Reply to the comment left by "Romain " at "18/11/2013 - 19:21":

Let me turn the question around.

Is a person who has no legal right to enter the UK a tenant?

Once this person has left the UK would a Judge, supposing he somehow has access to the Courts, rule that he still had the right of Possession? Would he in fact be in Possession?

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Reply to the comment left by "Mary Latham" at "18/11/2013 - 20:29":

As requested by me and others, it would be good to see the references to support the claim that tenancies are forfeit and law no longer applies when a tenant's immigration status changes... 😉

IMO, once the person has left the UK, he can certainly still have exclusive possession of the property. Possession does not imply that he resides there.
In OP's case, the tenant does not propose to surrender the tenancy or to give up possession. The tenancy will continue albeit not as an AST since the tenant will not reside there. That the tenant's new residence is not in the UK has no bearing: it is the same situation as if he were to move right next door.

When the Immigration Act is passed it will hopefully state what landlords must do, or have the right to do, when their tenants' immigration status changes. Currently they cannot do anything other than the 'usual'. ie. s.8 or s.21 routes if they want to evict.
Perhaps HA 1988 will be amended to add a new ground for possession under s.8, or perhaps it will clearly state that upon leaving the country the tenant forfeits the tenancy (which IMHO would make more sense than changing eviction procedures).

Of course if a tenant is deported and in effect disappears it is in everyone's interest to considered the tenancy surrendered, and as quoted above a landlord would probably also have a good defence re. PFEA 1977. But again, IMO this has nothing to do with the tenant's rights re. tenancy and the law in general.

Re. OP and his tenant's cousin: If cousin moves in he won't be a squatter, and he won't be a trespassed as long as the tenancy continues and that the tenant agrees for him to stay.
One potential issue I see is that if he moves in and starts paying the rent, it would muddy the water as to whom is in fact the tenant.

@ Romain

Start here ss1 and 2 in Part 1 Protection From Eviction Act 1977 which is the founding father of tenant rights

(1)In this section “residential occupier”, in relation to any premises, means a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises.

(2)If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.

This then goes on t refer to breaches of peaceful occupancy etc. Now the question is the structure of the tenancy and purpose of granting it - this deals with your point on possession not equating to occupancy.

Section 1 above gives a residential occupier as defined in the Act (in simple terms a domestic tenant) rights against the Landlord in effect if minding their own business, fulfilling the terms of the tenancy.

But to retain these rights the tenant must fulfil his side of the bargain - and as set out in the tenancy agreement he will have contracted to use the property as his main residence, for the occupancy by the tenant and his family etc etc.

So as and when the tenant leaves and ceases to occupy the property and no other joint tenant does, the tenancy falls, as per section 2 above. If the ex tenant was still in this country then obtaining a Court Order may be prudent. But if they have stated their intention to go abroad and not occupy the property...............

The fact they'd like to leave their belongings there as some sort of convenient storage depot has nothing to do with it. What matters here is that they have ceased occupying, and can be proved to have done so.

Good Morning Folks

Many thanks for your replies.

The reason why he says he wants to pay rent upfront is because he says he desperately wants to keep this property - it is a new build. Plus, he says since he has an internet line, a cousin of his would pop in one or twice a week to use it and collect any post.

He says he will pay rent upfront up until end of January 2014. His brother would then start living there until then tenant return to the UK in August 2014.

This is my first BTL and the tenant does sound genuine. But reading some of the repliers I have received here, has got me thinking whether or not the tenant is giving me a load of BS!!

My God Manjinder this gets worse and worse.

Who is paying the rent from February 2014 - and where does this brother come from? If he moves in and starts paying rent any Court is likely to deem him as having a tenancy.

And what happens if all this country cousin and brotherly love goes sour. Trust ne friends and family tenancies create the worst nightmare scenarios you can imagine when they go wrong.

You now have another problem. If the rent is paid in advance it is likely to be deemed an additional deposit, especially if it is a condition of allowing the tenancy to continue. The only way to avoid that is special wording in the agreement but it is too late to do that as the agreement is already in place.

In my view you need to end this but to be honest if the tenant keeps paying the rent I'm not sure you can. I think Mary Latham is right in terms of the tenant and his partner (is he the only named tenant) leaving the country means you can take possession, but you really do need specialist (and expensive!!) advice on this issue.

Proceed with great caution my fear is you are going to end up with a sub tenancy in the cousin's name followed by a sub-sub tenancy in the brother's name.

A complete nightmare.

Reply to the comment left by "Industry Observer " at "19/11/2013 - 12:56":

Hi

Thanks for you reply. The original tenant has agreed that he will still pay the rent from February 2014 onwards. He said he will give me the debit card linked to his bank account before he leaves the country, and will deposit one month's rent at the beginning of every month, so that I can withdraw the rent money from a cash machine. The big problem there is of course if he doesn't or forgets to deposit the money in any one month. He said he should be back in the UK mid August 2014, when his brother will move out and he will take up tenancy as normal. He also said his brother may move out before his arrival in the UK.

Worse and worse this means you will need his PIN number which he could change at any moment but that is the least of your worries.

I don't like to think the worst in anyone but moving beyond naughtiness and evil as mentioned very much earlier here we could have a scam with you being accused of using his card illegally.

Manjinder for my money you must make it plain to him that as and when he vacates he hands the property back to you and then you will do your best to assist him on his return in 2014. I repeat do nothing that results in cousin, brother or anyone else being able to claim a tenancy exists in their favour.

The advice to date has been excellent, the what if's are endless. I really do feel for poor Manjinder, what a baptism of fire for a newbie landlord!

I have a brand new suggestion to offer.

Reference the brother and the cousin and offer the three of them a brand new tenancy if they pass the referencing. If possible purchase RGI or better still use a scheme like this >>> http://lettingagentsonline.co.uk/rent-on-time-every-time/

Any thoughts clever people?
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