Student Let Gone Wrong – Advice Required

I would stay well clear of his motive, if he has a cousin living in UK, who will pay his rent, what if he does't and what if he claims that he has been given the permission to stay in your house, and what if he has sub-let it to him taking with him his deposit, and you will be left in a lot of mess! beware as I can smell a rat here, further more what if his cousin sub-lets it to someone else? I would tell this guy if he is not going to live there himself, he better terminate the contract (giving you two months notice) and thats it in less complicated way, be hard on him, tell him when he comes back next year that you may consider renting it back to him if the property should be still available. Other than that it just does not seem right to me, what if your property might be used for some other illegal or criminal purpose by others? very very suspicious and I would tread here with extreme caution.

Hi Mark - nor me hence the one liner

Romain - you have it the wrong way round. Not having an AST means not having any route to mandatory (guaranteed) possession even if all your legal paperwork is 100% spot on.

In any non 88 Act action you can win the battle but lose the war and end up if lucky and at best with a suspended Order.

In mandatory possession if you win then you win the battle and the war and get an Immediate or Absolute Order.

Massive difference - and being within 88 Act is undoubtedly best. Point I was making is if the tenancy was deemed not to be an AST especially at point in time when notice was served, life becomes even mor difficult for the LL.

Romain given the changes to Council Tax application of discounts etc I wouldn't bet on the tenant remaining liable even if you can prove to the CT office that the tenancy still exisits and in theory so do the obligations to pay rent and CT.

What the CT office wants is the money and they'll use most likely route to help them achieve that i.e. billing the LL if they can!!

Mike

Where does the notion of 2 months notice come from?

In this situation I'd accept any notice you can get, even 2 hours!!

Maninder something else very important strikes me here, and a possible solution, as follows:-

You must make it very clear that you are not prepared to continue with the tenancy and if the tenant leaves and the property is clearly not occupied then you will deem it as abandonment and proceed accordingly.

The goods left behind you become an involuntary bailee under Tot of Goods Act but you can put the tenant on warning in advance that unless they have been taken by him or that this cousin has collected them within 14 days of his leaving then they will be disposed of.

DO ABSOLUTELY NOTHING that agrees with or condones the tenants ludicrous proposal to return in a year, and make sure you get all contact details in every format for this cousin (is he local to the property) so you can return any rent paid post departure to him. DO NOTHING that could in any way be construed as acceptance of the situation, or even worse creating a new tenancy that a Court would recognise.

DO NOT accpet any attempt to create a formal Power of Attorney in fasvour of the cousin.

In effect you are going to deem the tenant's departure from the property (and the partner?) as implied surrender and act accordingly.

Reply to the comment left by "Industry Observer " at "18/11/2013 - 11:02":

If the tenancy still exists then the tenant is liable for CT even if property is unoccupied, that's the law.

As for possession: If tenancy is no longer an assured tenancy then landlord can serve a notice to quit (if tenancy is periodic). And especially if property is unoccupied and rent stopped being paid, landlord can use forfeiture clause/proviso for re-entry that is hopefully included in tenancy agreement.
I do agree, though, that this could likely lead to more arguments about the facts than a simple s.21 route. But if tenant is abroad hopefully he wouldn't get the notices and defend in either case 😉

Romain

I'm sorry but as a 20+ years veteran in this industry I'm afraid I'd have to disagree with you on all counts.

First Council Tax. Yes what you say is the legal position technically at least, but I'm afraid the gulf between that and operational preferences by the CT office is a million miles wide.

Second the Court action. The tenancy will not be periodic because it only started last September?

No matter what the time status of the tenancy serving a NTQ and proving your case AND persuading a Judge t give you an Order are, as I say, a million miles apart.

The forfeiture clause in any tenancy agreement I am afraid is an anachronism and is there only as an enabling clause - to enable the LL to take other action, in this case to serve the appropriate notice. A forfeiture clause in itself gives the LL no powers of re-entry no matter what it might say (and yes I know it will say that, but Protection from Eviction Act will override it, Statute v Contract.

If the tenant is away from the property by the way Courts are starting more and more to expect the LL to fgo the extra mile and serve at whatever address you have. This has always been the case on a s8 but now is being more widely, if unfairly, expected in Courts.

Reply to the comment left by "Industry Observer " at "18/11/2013 - 11:27":

"Yes what you say is the legal position technically at least, but I’m afraid the gulf between that and operational preferences by the CT office is a million miles wide."

Well, if it is the law, then that is what the landlord should point out to the council. End of. The council's 'preferences' are not relevant.
If council starts to show bad faith, landlord can and should appeal to valuation tribunal to uphold the law.

"A forfeiture clause in itself gives the LL no powers of re-entry no matter what it might say".

It will end the tenancy.
Note that PFEA 1977 says that a right a forfeiture or re-entry is not lawful to enforce outside of court _while_ there is a resident in the premises.
Same for eviction after tenancy has ended.

Again, I take your point, that this opens the door to a lot of legal arguments compared to HA 1988 notices, as exemplified by our very discussion!

Romain

Must beg to differ in operational terms. You are of course quite right in what you say, and as I always advise, "show me where it says chapter and verse that you can do this".

But with an ex -occupier in Sudan or Somalia or wherever who do you think the CT Office is going to chase, pester, harass and threaten especially with notices?

In terms of forfeiture clauses I am afraid we will have to disagree. No Court in the 21st Century will ever terminate a tenancy agreement on the basis of a forfeiture clause. Commercial maybe, but not residential. The clause simply needs to be there to enable the LL to recover possession by other means, noot the enforcement of the forfeiture clause itself.

I went into this in great detail with legal opinions many moons ago when I wanted to drop it from our agreements because in itself it achieves nothing. I was told it had to stay in because it is an enabling clause.

As you say "end of" I must get on with real work, though this case does interest me because of similarities with the one I quoted.

Reply to the comment left by "Industry Observer " at "18/11/2013 - 10:34":

Hi IO, This is what I read in the OP

"What things would I need to clarify with him before he and his partner leave the country?"

From this I deduce that both are leaving the UK and therefore neither has the legal right to the tenancy and there is no need for a S21 in this case.

Serious concerns about a person who cannot pay the rent because his Student funding has not come through and yet is able to pay rent through a third party for a year when he will not be occupying but will be leaving belongings behind and, I assume intends to keep the keys. So many possible scenario......

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I don't want to get between a man fight but....

If a person has no legal right to be in the UK, UK law does not protect him. This is similar to several situations I dealt with when landlords let properties to those seeking asylum in the UK. Once their Right to Remain was revoked the landlord could simply ask them to leave and could inform the authorities if they refused and they would then be deported.

Under the Immigration Bill it is proposed that the landlord has a legal obligation to inform the authorities when a tenants right to be in the UK ends and the person continues to live in his property. Landlords will need to keep records of the tenants documents, diaries the end dates and obtain a new document when that one expires. The authorities will then take action to deport the offender. If this remains in place when the Bill becomes law this will be a burden for many landlords and failure could cost them £2k per offender

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Hi Mary

What is OP?

Agreed if it is blindingly obvious even to the dimmest Judge that a property has been abandoned - indeed how could the tenant even mount an action that it wasn't if abroad - then little if any risk.

But unless actually surrendered or there is a Court Order there is a tenancy just a matter of the status of it and what notice needs to be served.