Help needed to evict a problem lodger

Hi Tonya

My worry for you here is whether this tenant would be considered to be a lodger or a tenant.

The fact that it's a studio flat isn't really helping you either. Were you really ever a resident landlord? If so, how did that actually work in a studio flat?

I have sent out a request for some specialist help and commentary to Sam from Spareroom.co.uk and also to Paul Shamplina from Landlord Action.

As yout tenant is already proving to be difficult in terms of changing locks, not paying rent and not speaking to you I think you need to tread very carefully. If you simply throw her stuff out and change the locks she may well report you to a Tenancy Relations Officer who has the rights to re-enter the property by kicking the door down if needs be. A Tenancy relations Officer would also have the power to arrest you for wrongful eviction.

My gut feeling is that you really ought to take professional advice in respect of eviction in this instance. Yes it will cost you money but you are already losing money in terms of unpaid rent. You need to sort this as quickly as the law will allow without getting yourself into trouble. Professional advice may well save you a lot of money and heartache in the long run. Therefore, I suggest you contact a firm such as Landlord Action. Please see >>> http://www.property118.com/tenant-eviction/39099/

Gotta correct you there Mark, us TROs dont have powers of arrest. We can do criminal prosecution buts that's it and you are right we could use force but in a case like this I wouldnt.

In fact I wouldnt touch it with a bargepole; period!!!

In law a lodger is termed an "Excluded Occupier" and what they are excluded from is the normal eviction procedure and cover from the Protection from Eviction Act. The resident status of the landlord is crucial in determining lodger status in that they must be truly resident in the property as their 'Sole or principal home'. Given Tonya's story here, if it came to me I would take the view that even though working away from home the property is still her principal home. If she was living somewhere else then I would advise that she has given up the accommodation and consequently loses her resident landlord status.

Bear in mind that the other occupier may give a different story to any TRO or worse, to the council who may deem that if sub letting Tonya may have broken the terms of her right to buy contract. It would be the first time a council officer went off half cocked

Having had some experience of working as a Consultant to a law firm I can shed some light on what questions a lawyer might be asking of this aggrieved tenant.

1) Are any of the household bills in your name?

2) Does your landlord have another address?

If any of the answers to these questions are yes then the lawyer will use this to argue that the tenant was more than just a lodger.

If the locks are changed and the tenants possessions are left outside then Ben's equivalent might well receive a very strongly worded letter from the solicitor asking him to take action based on an illegal eviction. Simultaneously, the lawyer may well look to take on a case like this on a no won no fee basis, especially if the evidence is sufficiently damaging. This will increase the pressure for a TRO to take action for fear of not doing so might earn the Council a bed reputation if the case is won in court and the Council had refused to take action.

I am not trying to be alarmist here and it may well be that Tonya has absolutely nothing to worry about as per Ben's post above.

However, as Ben also stated, there are often two sides to a story. If the flat had been a two bed with the lodger renting one room I may not have been quite so concerned. However, two strangers sharing a studio flat ........?

Better to be safe than sorry and to explore all of the potential issues and consequences before taking action I suggest.

Oh I dont disagree with you Mark. We do indeed regularly fend off letters from solicitors and Shelter asking why we arent taking action but it is for us to decide. At the end of the day, it's the council's prosecution and the tenant is merely our witness if we take it on and , just like the CPS we have to assess what our chances of success are because we are using public money. The majority of cases I have to drop arent so much for want of evidence but the credibility of the tenant. In fact I have just had to drop a case due into the Crown Court this month against a landlord who illegally evicted a tenant and destroyed all her personal possessions last summer. We have the witness statements and the evidence but the tenant is now facing a jail sentence for fraud. Defence barristers would pull her to pieces in the witness box and we, the prosecuting authority would end up with all the costs of a lost case.

I feel sorry for the tenant but it’s the way it is.

Harassment and Illegal Eviction are criminal offences and so breaches must be proven beyond all reasonable doubt. Tonya's version of events severely muddies the water enough for a TRO to be very cautious about proceeding.

Having said that, a solicitor could have a go at civil action, where the standard of evidence is only 'Balance of probabilities' about which party is telling the truth.

Hi Tonya,

as Mark says, the first thing to do is establish whether you can be considered a resident landlord or not. I'm not a lawyer and would advise you to get some legal advice on this front. Tessa Shepperton of Landlordlaw.com is a good source of specialist information on tenancy law.
Don't do anything hasty like moving her things out. This could give you more grounds for trouble. It's a bit late now for this advice, but we'd suggest you should always put things in writing, and go for a written licence agreement that sets out exactly the terms of the agreement. Even if you start as friends, it may not end that way, and the licence will give you both something to refer back to in case of disagreement.
Don't be cowed by her threat of legal action. Get some advice now, and make sure you start to put all correspondence in writing, so you have evidence.

More information for landlords and homeowners letting out a room in their homes is on SpareRoom: https://www.spareroom.co.uk/content/info-landlords/advice-landlord/

Dear Tonya

Having read the posts above, I would tend to agree with Ben Reeve-Lewis. If this is your principal residence then the other person living in your flat is a lodger with very little rights. I am assuming that she does not have exclusive possession of any part of your property - in which case you can probably just change the locks.

Obviously, I would like you to clarify her position before advising you to go ahead and do so, so if you want to contact me, please see my member profile.

i am certainly no expert here but from a common sense point of view , if you pay the council tax etc and can show the flat to be your residence then surely this lady is a lodger not a tenant, i would throw her out and see what happens.

@Andrew Townsend - that's very easy to say but would you really risk the massive fines associated with illegal eviction if you were at all unsure?

I have no relevant professsional qualifications, but 2 things seem to me to be at the heart of this:
1. The lodger came into the property as a lodger and as such has very few rights, being present only on license, even though in this case there is no written license.
2. If she is trying to claim that she is now a tenant she must show that she is paying rent, or is supposed to be paying rent. You can't have a "rent free" tenancy. If there is no rent there is no tenancy. To do this she would have to describe how she came into the the flat in the first place and why she is no longer making any payments. This might well blow her own case out of the water.
But the best get professional legal advice from a firm who specialise in property matters. Don't go to your local friendly branch of Bumble and Shafter, general high street solicitors. As has already been said it will save you money in the end.

Andrew I'm afraid common sense isnt the issue here, it's a legal quandary. Proof of council tax payments would help but it is, on it's own, nowhere near decisive. Neither are bills, bank statements or correspondence. You would be amazed how many cases I see where the tenant repeatedly complains that the landlord keeps visiting the property to collect post that they dont have redirected.

It often comes down to more prosaic facts. I have visited properties and looked in wardrobes in rooms that the landlord says they live in to gather hard evidence. The legal issue is THAT important.

As I mentioned earlier I think any TRO wouldnt go off half cocked given the 2 possible stories and the need to gather evidence 'Beyond all reasonable doubt', but an inexperienced housing officer managing the council's right to buy stock is not usually versed in housing law and may instigate possession proceedings against Tonya for breach of her contract. To my mind that is more of a pressing issue than prosecution for illegal eviction