Tenant never occupied the property?

by Readers Question

9:20 AM, 14th September 2016
About 2 years ago

Tenant never occupied the property?

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Tenant never occupied the property?

I signed up a tenant in January for six months so now periodic ‘but’ he’s never lived there and uses it for storage only! Empty

Problem, he stopped paying rent 3 months ago and I want him gone, but as he doesn’t occupy the flat are the legals just the same eg s21 or s8 notices?

Many thanks

Pete



Comments

Neil Patterson

9:24 AM, 14th September 2016
About 2 years ago

Hi Pete,

Logic would lead me to assume the legals are the same, but we have never run across this scenario before.

Then as the tenant does not live there do you know where they live and how do you prove the notices were served?

It may be worth investigating help on this one. Please see >> https://www.property118.com/tenant-eviction-2/

Stephen Turner

11:02 AM, 14th September 2016
About 2 years ago

How are you to know he didn't move in and only recently moved out and used as storage? As far as your concerned he rented it as a dwelling, what he did a week after means you weren't necessarily aware ?...I would just treat it as a normal tenancy and get the notices served (witness, phot etc) ...Turn a blind eye to the storage bit.....good luck

Charles King - Barrister-At-Law

11:15 AM, 14th September 2016
About 2 years ago

Reply to the comment left by "Neil Patterson" at "14/09/2016 - 09:24":

Hi Pete. For a tenancy to be an Assured Shorthold Tenancy the property has to be the tenant's 'only or principal home' (Section 1 Housing Act 1988). That means in your scenario, strictly speaking, no notice is required at all under the Act (i.e., no section 21 notice) provided you are absolutely sure the tenant hasn't occupied and you can prove it. The tenancy is merely a contractual tenancy - not statutory. On the other hand where premises are 'let as a dwelling' (which I bet your tenancy agreement says it is) you must comply with the minimum requirements for notice contained in the Protection from Eviction Act 1977 - i.e. not less than 28 days in writing containing prescribed information. All of this legal nicety means that whilst you could probably re-enter the premises immediately and take possession peacefully without resorting to the law, you run the risk of upsetting the tenant and being accused of something, with horrible potential legal ramifications. So at the end of all this, the section 21/section 8 route is the safest, but not the fastest or most satisfactory - and in all likelihood it the most expensive because of the court costs, hassle and unpaid rent. Dilemmas, dilemmas...

Stephen Turner

11:48 AM, 14th September 2016
About 2 years ago

Reply to the comment left by "Charles King - Barrister-At-Law" at "14/09/2016 - 11:15":

That's a very interesting point Charles, this is when friendly neighbours come in as witnesses, I have just had witness statements from neighbours when a tenant claimed they moved out a month earlier to avoid paying a bit of council tax.

Romain Garcin

12:12 PM, 14th September 2016
About 2 years ago

If the original fixed term tenancy wasn't assured then no periodic tenancy was created automatically. If the tenant stopped paying rent by then you might also argue that he has been trespassing since the original fixed term tenancy ended, which would allow you to take possession immediately.

If there is a tenancy but no an assured one then, as suggested you could just serve a notice to quit to end it and take possession thereafter.

As Charles wrote the risk is that you must be able to satisfactorily prove that any tenancy isn't assured.

Rod

14:15 PM, 14th September 2016
About 2 years ago

Thanks for all the replies. The contract is an AST but has now gone periodic so I now assume that as no rent is being paid then occupation could be seen as trespass? For an easy life I'll go for the s21 or s8 route!

Charles King - Barrister-At-Law

14:21 PM, 14th September 2016
About 2 years ago

Not trespass where they entered with permission and are holding over following the expiry of the fixed term, although this again is subject to the arguments about whether they are 'occupying' or the premises were 'let as a dwelling'. Won't they answer the phone? You would have thought they would want to do a deal whereby you write off the arrears in return for the keys.

Sharon Betton

14:35 PM, 14th September 2016
About 2 years ago

I don't think that the failure to pay rent means he is an illegal occupier. That can only apply once a Court has granted a possession date, surely? I would be concerned about the insurance issues, though, if you believe he has not lived there. Though I must agree with a previous correspondent - if you let it assuming he would be living there and he has not told you otherwise, then I'd issue the section 8, at the property, on grounds 8, 10 and 11. Take a witness with you who can see you serve the notice and get them to sign a simple statement to that effect.

Romain Garcin

14:43 PM, 14th September 2016
About 2 years ago

Reply to the comment left by "Sharon Betton" at "14/09/2016 - 14:35":

If the original tenancy wasn't assured then when it expired no new tenancy was automatically created.
Therefore a new tenancy was only created if both parties intended to create one. Since apparently no correspondence was exchanged it would come down to their actions, e.g. paying and accepting rent.

Romain Garcin

15:02 PM, 14th September 2016
About 2 years ago

Reply to the comment left by "Charles King - Barrister-At-Law" at "14/09/2016 - 14:21":

"Not trespass where they entered with permission and are holding over following the expiry of the fixed term"

That would be trespass if they occupied the property without permission. Perhaps you meant 'squatting'.

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