Surprise! new tenant

by Readers Question

10:18 AM, 15th October 2018
About a month ago

Surprise! new tenant

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Surprise! new tenant

Hello All, Last week, I carried out a general check up/inspection/’how’s it going?’ visit at the same time as a periodic electrical inspection. This was arranged with the tenant by text/phone.

It was surreal. I have never been in this position before.

The tenant, (a couple and their two small children), were not there. Neither was their furniture, coats, children’s toys, but his sister was along with her furniture. I have to assume it is his sister and there is no information or oddities in the information yet given to suggest she isn’t. She looked very relaxed and settled.

The alleged sister is sensible, pleasant and (I had small children once so this is in no way meant to be disparaging) the place is clean and tidy.

The previous month, I noticed and queried a ‘faster payment’ of rent by a name that was not the tenant’s. The explanation was that the sister was helping out. In the past, I have had tenants who sometimes had their rent paid by others; so not particularly notable. But I now suspect that the month before that was in cash and was also the sister.

The explanation offered by the sister was that the tenant had to go ‘home’ (family) to deal with personal problems and it suited them all that she give up her rented property and temporarily step in to support to keep the option to return open. No point in one of them renting an empty flat while she lived on her own elsewhere.

To give up a rented property the sister presumably gave 1 month’s notice.

My last visit was 2 months ago.

Further background. The tenant struggled last year and a half (redundancy at the same time as the arrival of a baby) and has modest arrears, but it was under control and arrears were being sensibly eroded with oodles of flexibility. At our last meeting 2 months ago everything was looking really good. Both had new jobs, he was starting college, eldest child starting school; a stressful but very positive time.

At the moment I genuinely don’t think there is ‘badness’ at play here though I reserve the right to change my mind if new information comes to light. However, I will directly accuse them of leaving me out of the loop and there is clearly a significant level of planning going back 3 months at least.

Prescribed info and how to rent guides all good. Deposit handed to the DPS within about 5 days of receipt. Regular rent statements provided. All relevant gas/elec certification continuously up to date.

I continue to communicate only with the tenant though in the last week that has proved impossible.

Soooooo, questions, questions, questions …

This is not clear cut subletting. What is it?

The sister is not the tenant. She has been told that she is not the tenant and that the tenant should pay the rent not her. If the Sister has been there for two months and effectively paid the rent what are the implications for me?

I would be happy with a deed of surrender with an immediate new tenancy agreement with the sister. Although I’m not sure what previous address to use for a tenancy agreement as she is already in the property.

I have to assume that I have discovered I am on dodgy ground but I have no idea what the lurking dangers are.

So, despite my irritation and on behalf of the tenant, (keeping a guarded positivity), your comments, please.

Thanks

Hamish



Comments

Yvette Newbury

10:43 AM, 15th October 2018
About a month ago

First thing - check the ID or your new tenant and ensure she has the right to rent. If all OK, find out from the first tenant - what is the situation? Will she be returning?

Eps

11:03 AM, 15th October 2018
About a month ago

I would be very worried because of the potential legal/financial dangers you've been put in. On the (new) face of it, the rent is paid but other than that so many pitfalls! If the situation was reversed in that the Sister had left and the Tenant Family were installed you would be less than happy but the pitfalls would be the same, no?
I don't believe the Tenant will return. In any case, I assume you are not running a service where people can come and go as it suits THEIR circumstances? As it stands now, I believe you would need to treat the Sister as the new tenant subject to all the required check together with all the mandatory info. If she passes, check with the DPS if the deposit you hold can be changed to the Sister's names if so, issue her PI asap , if not, refund the deposit to the Tenant family (get confirmation of receipt) and collect deposit from Sister. I really can't think how else to protect yourself in this situation.

David Price

11:21 AM, 15th October 2018
About a month ago

Whilst I cannot help or advise on the current situation, it is way beyond my experience, I can give you a way which may help avoid this in the future. Include in your tenancy agreement a list of the individuals who may reside in the property and get the tenant(s) to sign against each name. Any other person has no right to be in the property.
In my case the list was included at the insistence of the Local Authority who were concerned about overcrowding.

roly

11:51 AM, 15th October 2018
About a month ago

Unlikely that your tenant will ever move back in and you have no agreement in place with their replacement who is effectively sub-letting and therefore in breach of the agreement. I would be insisting that ALL documentation is formally signed by the new tenant, exactly as if this is a new tenancy inventory signed, plus a statement signed by the new tenant that she occupied the property "informally" before documentation could be signed in the normal way. If she refuses, I would give notice to the original tenant under section 8 (breach of tenancy agreement). You will have trouble evicting under section 24, a new tenant to whom you have provided no documentation and with whom you have no tenancy agreement.
I hope she signs without hesitation, if not you know where this is going

Hamish McBloggs

12:26 PM, 15th October 2018
About a month ago

Reply to the comment left by Yvette Newbury at 15/10/2018 - 10:43
Hi Yvette,

The situation is as I describe until I know any different.

To confirm the Sister has a right to rent is on my task list this week.

However, I do not want to unwittingly do anything that tacitly approves a tenancy; I don't want to find later that there is some unfavourable quirk of law despite the facts.

A cautious approach for a day or two & gather info.

Thanks

Hamish

Hamish McBloggs

13:08 PM, 15th October 2018
About a month ago

Reply to the comment left by roly at 15/10/2018 - 11:51Hi Roly,
Sadly I am inclined to agree, they are unlikely to come back.
But surely a tenant can have their mother/friend/uncle stay and dog sit whilst they go on a 2 month African safari. Is that subletting? Yes, there is common courtesy of course but at what point does law compel a tenant to tell a landlord about the temporary arrangement?
We don't have a clause in our SHT's that states a tenant must tell us every time they aren't present when someone else is. And if we did, how granular should it be ... just popping out to the shops? Is there a proper mechanism to manage this?
If the sister pays rent to the tenant then that's subletting; very definitely if the tenant turns a 'profit'. But if she pays me then that's what precisely? I am concerned that there may me some sort of implied tenancy over which I would have little control.
I cannot simply sign a new agreement with the sister. Logically, the existing tenancy agreement must be legally terminated first. There is at least 8 weeks notice regardless of route other than deed of surrender.
I am considering getting a formal 'statement' from the sister describing the 'house sitting' arrangement in lieu of unravelling the mess in the correct way.
Yes, I am considering S8. I don't want to. Also I am at a significant disadvantage with no forwarding address; I don't know where 'home' is. A delicate position as to upset the sister may shut down options.
Hamish

Graham Bowcock

13:10 PM, 15th October 2018
About a month ago

Dear Hamish

I agree with Roly. You need to sort this out quickly. It may be that you reach some agreement with the sister, but bear in mind that at the moment you have no contractual relationship with her; it is possible (perhaps unlikely) that the proper tenant would object to you dealing with the sister so you do have to tread carefully.

On one hand this all seems very convenient and suits all involved. On the other hand you may be being quietly shafted.

I suggest that you ensure all correspondence is addressed to the named tenant; if he does not reply then perhaps sister can help, on the basis that you will be fair to her. They need to understand that they cannot chop and change tenants at their will - you have to be in control.

Tenant needs to surrender before you can grant a new tenancy. Sister then needs a proper tenancy and you need to go through the procedures as with any other new tenancy. Sister currently has no rights (from what you say), but you must avoid treating her as a tenant.

Maybe using a good (qualified) local agent will help expedite matters. There are many pitfalls for the unwary here. Any chance the tenant will pay your costs?

Graham

Eps

13:15 PM, 15th October 2018
About a month ago

Reply to the comment left by Hamish McBloggs at 15/10/2018 - 13:08
I believe the previous Tenant would be viewed as having abandoned the property at least from the point of view of the DPS since this once happened to me and I was able to sign a new agreement in my case without having to consider proper legal termination of their agreement first.

Hamish McBloggs

13:32 PM, 15th October 2018
About a month ago

Reply to the comment left by Graham Bowcock at 15/10/2018 - 13:10
Graham,

All communications are with the tenant.

Although very impolite, the sister is not in the loop and not treated as the tenant.

Thanks

Hamish

Graham Bowcock

13:36 PM, 15th October 2018
About a month ago

Reply to the comment left by Eps at 15/10/2018 - 13:15
Eps, Hamish

I think that the DPS ruling Eps has had should not be taken as law; this sounds like something particular to DPS. Abandonment is quite hard to prove and you have to be very careful not to be accused of eviction or harassment, especially where a family member is now residing in the house.

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