Eviction order and one way ticket to Greece?

Reply to the comment left by Mike at 03/04/2019 - 01:03
Hi Mike
I did run all of this past my legals who told me that someone can rent a property but doesn’t have to live there but I need to have his surrender notice in writing, I did change the locks after I secured the property. After giving my legals the update I was strongly advised to change them back again as this would be deemed as an illegal eviction. Reluctantly, I frustratingly changed them back as I couldn’t see that common sense wasn’t prevailing with this situation. Nevertheless the advice I have received on this forum has been very helpful and gives me ideas as to how to bring this dilemma to the correct conclusion. I will check with my insurers regarding the ‘empty property’ time constraints as well, good point.

Steve, no one truly knows the exact standing on such things, so we tend to cover all angles unnecessary, so playing it safe costs more money and time, choice is entirely yours, and the risk of not going the proper way is not enormous, probably very little to non-existent in him coming back to sue you.

When I say no one truly knows, even Judges sometimes come up with two different judgements for a same two cases, its happened to me so I am speaking from my experience, where a same Judge ruled out my Particulars of Claim because I did not put reason for possession such as Ground 8, and in another case the Judge went ahead and granted me the possession even though both Particulars of claim (POC) forms were identical but different tenants, and same Judge and same court, two different hearing dates within 6 months of one another.

You may say the Judge may have overlooked on one of the POC forms and granted me possession, yet on another the Judge kindly gave me 14 days to submit amended POC, another date for a hearing set, and then the second time hearing the Judge was very strict and defendant did not turn up despite which the Judge wanted to literally throw my case out, but my barrister did a brilliant job, she got told off for not coming up prepared for the case and not having her papers in order, I was told to shut up when I opened my gob !
Despite which I was granted a possession order giving the defendant 14 days to leave, but guess what, on the actual court Possession order I have been granted an outright possession from the same date as the date of hearing, I cannot understand the logic of even courts.

Did you not find the lock faulty when you entered the property, so needed to replace it (and leave a message for the tenant to that effect)?

Did you not find that the property was unfit for habitation, so went back to make it fit?

There should be a statute of limitations.

Hamish

If a tenant is no longer living at the place, and has gone more than 2 months, and has not informed the landlord that he is going away on a long vacation, as per terms of an AST agreement and it has been more than 14 days he has not contacted you or responded to any notices you sent to him or left through letter box, then it is clear enough that he is no longer under Section 19A of the Housing Act 1988 as amended Schedule 2 which says "The tenant shall occupy the premises as their main and principle home"
so in this case just kick him out if I were you. No need to give him any notice or hire bailiffs or go to court, let him take you to court and challenge this Act. One could argue that the tenant is no longer occupying the property as his main and principle home so no Housing Act applies.

Further research into this indicates as follow from the Shelter website:
Occupied as an only or principal home
The tenant must occupy the property as her/his 'only or principal home' for it to remain a assured tenancy.[5] If there are joint tenants, then only one has to be in occupation to maintain the assured tenancy. Where a tenancy is occupied by a spouse or civil partner who is the sole tenant, and that tenant leaves while the non-tenant spouse or non-tenant civil partner remains, assured tenancy status will be maintained.[6]

It is not necessary for the tenant to be living in the property continuously. A temporary absence for a long holiday, to work or to visit relatives abroad, or because of illness or imprisonment may be consistent with continued occupation, however, where the tenant is absent for a long period, this is likely to raise a presumption that the tenancy is no longer assured. In such circumstances:[7]

the onus will be on the tenant to show s/he has an intention to return. The focus will be on the tenant's enduring intention and will not be displaced by fleeting changes of mind[8] (this may be particularly problematic in cases where the tenant is mentally and/or terminally ill and/or has been admitted into long-term residential care)
it will not be sufficient that the tenant has a subjective intention to return, the facts of the case must show that a return to the property is a realistic possibility
there must be physical evidence of continuing occupation like furniture or other belongings, or the presence of a 'caretaker'.
Each case will depend on its own facts.

In some circumstances it is possible for a tenant to pass in and out of assured status by moving back in to the property after ceasing to occupy it as her/his only or principal home, but where the landlord has served a notice to quit the tenant condition must be satisfied at the date of expiry of the notice.[9]

Reply to the comment left by Mike at 03/04/2019 - 17:13
If a 'Caretaker' stays at the property then there would need to be a right to rent check. Home Office only allow 2 weeks max without this check.

At what point can a 'caretaker' in the property that is not on the tenancy agreement claim an implied tenancy?

Steve, you have mixed advice given above. Now look at the facts! You don't have solid proof of abandonment as such you need to go through the bailiff procedure. If you don't and in a couple of months the tenant returns (because maybe plans just didn't work out etc), you could be taken to court by the tenant for false eviction! If you have new tenants as well, they could also take you to court. What may be considered as common sense maybe attractive to you because it's the easy option you are looking for! Always look at the worst case scenario. Any other approach is risky and from what you say - your tenant will screw you in any way that he can! Maybe he's just waiting around the corner for that opportunity!!

But then again, Steve went to his house one day and he found a bunch of keys having been chucked through the letter box, landed inside the front door, Steve assumed these keys must be the tenant surrendering the property, so there you go Steve, all you need is to keep looking for a bunch of keys, don't care where they come from or who puts them there, you did not see, but you found them there, you then rightly assumed they are from your tenant, a tenant can have as many sets of keys as wants, he may still have the original set you gave him, but you found a set of keys that fits your locks, so you assumed tenant really has surrendered. In you go, clean up and change your locks, put new tenants, let the tenant take you to court, you take a set of keys you found at the place, and see how far can the case roll on,
I am merely trying to say how absurd is the surrender law, it depends on a tenant surrendering his keys and not a court possession order!
And so any landlord can plant a set of keys and later on claim they were from the tenant, how can anyone prove that they were not surrendered by a tenant, and if a tenant claims that he still has a set and has not surrendered, the landlord can say he has his own set as well as the one he found at the property, and what if a tenant had two sets? make sure they look a bit worn out though.?

A tenancy should come to an end and landlord allowed to go into his property if a tenant is no longer occupying the premises and did not attend a court hearing, sure enough the tenant was given long enough notice for instance 2 months notice period , which any landlord would serve on a tenant after he had defaulted rent payments by more than 1 month, and the second month has started which is considered as two months rent arrears, so during two months notice period, landlord does not hear from tenant, no rent forthcoming, so he files a Notice seeking possession order, which then takes another 6 weeks, still no communication and the place looks abandoned, tenant does not turn up at the hearing, court gives immediate possession, that should be it, regardless of any items of furniture and signs of occupation, no rent paid + no court attendance, + no defence filed = property abandoned, immediate possession and landlord allowed to move in and store tenants belongings in a storage for let us say up to a month or even two.
That is exactly what I did, tenant came back and I showed him the door, there is absolutely nothing he can do apart from may be appeal with court to allow him to reenter and reoccupy but I would oppose that as I don't want such irresponsible tenants ever again. he has not sued me, because he has no leg to stand on.

Overall it took me 6 months with no rent paid and no communications what so ever, with what cheek would any tenant claim he has been evicted illegally!