Tenant refuses to leave from property I was sold as vacant possession!

Reply to the comment left by Kate Mellor at 02/02/2023 - 20:47
As far as I can make out all documentation was issued (albeit late) before the s21 was served , so will that work in my favour?

So I re issued all the correct documents about 2 weeks after I was sold the property , so if I end up having to reissue a s21 I can use those dates (of my own document issue) to show the tenant had everything before that s21 was served?

The tenant , I belive , withdrew defence because they are waiting to be rehoused by the council - I haven't even mentioned the abusive ex - and the restraining order lapsing a few weeks after I was sold , im not making this up !
I think they maybe assumed if the possession order was granted - because they made no defence - they would be rehoused sooner.imo

They claim as I had seen the flat and knew there was a tenant at viewing that I should've gone back to look before completing. The problem for me with that is I viewed and was told by the seller the tenant had been given s21 (about 4 - 6 weeks prior) (and therfore only had about 2- 4 weeks remaining yo quit) and wouldn't be there , so I made an offer about 3 months after that - which completed 2 months following on from that so it was about 5/5.5 months later and during the entire purchasing process the seller never mentioned the tenant or produced documentation pertaining to them still being there. So I wrongly/naively thought that meant they were no longer there as all the legal paperwork was stating vacant. Obviously had any of it even hinted the tenant was still in situ I would've/ could've done something about it.

I can see how it could happen. It’s a cautionary tale.
Yes is the answer to your question. If you’ve re-served everything correctly with evidence, assuming all is correct with the deposit too you can serve a valid s21, you should probably serve it right away if you haven’t already. Hopefully you won’t need it! Do you know how long you have left to wait until you get a decision?
If the tenant is wanting to be rehoused she’s not going to challenge the eviction but she is going to make you wait until the bailiffs turn up, so I’d suggest you employ private ones as you’ll get a much quicker appointment.
(It depends on the council, but you might be aware a lot of councils won’t rehome a tenant who leaves before the bailiffs arrive).
You don’t mention if she’s been paying rent. I do hope so. It sounds like a nightmare, or as I like to call it, a learning opportunity… (ha ha) my biggest property challenges are the things I’ve learned the most from.

From reading the thread
1. Did Tk tell his conveyancer the property was tenanted? If yes, then the contract, which Tk's solicitor approved, would state in Special Conditions (a) the Property is sold with VP or not (b) Have an Occupiers Consent clause which requires anyone one living in the property over the age if 18 at exchange of contracts to sign the engrossed contract ie "Each occupier identified below agrees with the Seller and the Buyer, in consideration of their entering into this contract, that the occupier concurs in the sale of the Property and any included fixtures and contents, undertakes to vacate the Property on or before the completion date and releases the Property and any included fixtures and contents from any rights or interest that the occupier may have."

If the contract stated Property sold with VP and no Occupiers Consent clause signed by each over the age of 18 and Tk's solicitor knew the property was tenanted (what was the wording on the auction details????) then could claim against his own solicitors for negligence as OC clause should have been inserted prior to approval and sellers solicitors engrossing.
If the contract state Property sold with VP and an Occupiers Consent clause and the Occupiers hadn't moved out on completion then likely to be able to rescind the contract (which should have been discussed immediately on the day of completion having found tenants in situ) AND claim interest (at the noted Contract Rate) plus return of monies paid.

If the Contract stated Property sold with VP and Tk didn't tell his solicitor that the property was tenanted and just relied on the word of the seller, as he states did not get this in writing on the MoS" Caveat Emptor (simply just plain silly)

Prior to Tk's solicitor sending the completion monies, and knowing it has been/was a rental property, why didn't Tk go and check that the property was empty and cleared (as a property with past tenants unwanted items is not Vacant Possession) and then ring his solicitor to instruct sending the completion monies?

Could be a time consuming, frustrating and expensive lesson that was easily avoided!

This is very unfortunate and you may need to go back to the drawing board and start the notice again unless the paperwork is 100% accurate! You do need to see all the documentation and who served it together with all the back up documents, copy of deposit protection (if any) epc, electrical check, gas safety to ensure compliance, copy of the AST agreement, how to rent guide etc. Make a check list and get advice!

Your conveyancer shouldn't have exchanged till the tenants had actually vacated, did he check this had happened, if nt why not? you may have some recourse against them

Reply to the comment left by Ingrid Bacsa at 01/02/2023 - 18:14
That would be an unlawful eviction. Civil and criminal penalties. Probably an injunction to require you to let the tenant back in (and keep you out).

I have come to this a few days in but my first thought is that the OP needs to get professional advice and the special conditions in the auction catalogue need to be scrutinised. The OP writes:
"I bought a property at auction with the seller stating the tenant had been served a section 21 notice and would be gone prior to completion, (I made a mistake of not getting that in writing in the MoS)."
The contract is made when the hammer falls and is on the terms of the auction conditions and special conditions. You do not normally have the chance to change them by amending the MoS. The fact that the seller put it in for auction prior to obtaining vacant possession suggests to me that the seller knew exactly what they were doing. It is highly risky to exchange contracts for a sale with vacant possession if a residential tenant is in place at the date of exchange: there is no guarantee they will be gone and the seller risks being in breach of contract and liable for damages to the buyer!
If the buyer had a solicitor acting then, if completion was conditional on vacant possession, they should not have completed.
I am afraid the OP has been rather naïve and the "discrepancies" in the documentation may well scupper the claim. The paperwork should have been checked before the auction.
I would speculate that either (a) the seller is a single purpose company and the money will be gone and a claim not worth pursuing and/or (b) the special conditions would not have required vacant possession.
As the maxim goes caveat emptor. Buyer beware.

It 2as sold as vacant. You can go back to auctioneers and claim refund.

Trouble you now have hearing. Was it a online auction, do you have auction listing.

If its sold as vacant they are in breach of contract . If recorded what said before bidding.

Yes your going for tenant, but you have case against previous owner, or auctioneers. The auctioneers may have to take action against previous owner

Remember buying a house like anything comes under "invitation to treat". Yes they gave details you decided to go for. At live auction they should have said tenant still there.

By paying you have shown exceotance, but if lied to you are entitled subject to contract refund, plus interest lost

Reply to the comment left by Frank Jennings at 01/02/2023 - 14:44
Yes you are spot on. EPC deposit how to rent and elec safety can be rectified.
Gas safety may not be rectifiable. Depends on when the first tenancy started.

As to redress depends what was in the legal pack. Probably no auctioneers are not daft