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

Sorry just wanted to add that if you're not going to rent it out and want to reside there yourself and didn't get a buy to let mortgage, I think you have a case against the seller and both solicitors as you could be homeless?! You should be able to get free advice for 15 mins from solicitors such as Lawhive or try no win no fee sols. Those auctions are a bit dodgy cos I was interested in a property and was watching the auction live on screen and the bidding rose to £450000 but then the auctioneer made a mistake and said £265000 which prompted the other auctioneers to whisper in his ear and it went back up. BUT when I checked what price it went for at the end, it was £265000 with a developer nicking half of a 100ft garden.as there's workshops at the back. It's next door to my friend and something dodgy went on I'm sure.

Reply to the comment left by Kate Mellor at 02/02/2023 - 13:34
So I reissued all documentation about a month after I "completed" would that mean if the original s21 fails I could reissue one but base it on when I took possession and issued the documentation to her?
I made sure all documents I sent were current and up to date .

Reply to the comment left by Ingrid Bacsa at 01/02/2023 - 18:14
Ingrid, moving in and changing the locks may land the landlord in court facing an injunction. The occupier is a tenant and therefore is entitled to exclusive occupation of their home.

Reply to the comment left by Tom Kearley at 02/02/2023 - 18:14
No you cannot issue a new tenancy unless the tenant has agreed. So you could offer her a new 6 month tenancy with all the correct paperwork then serve notice later.

Reply to the comment left by Tom Kearley at 02/02/2023 - 18:14
Tom, unless you’ve issued a new AST which you won’t have done, everything is based on the current tenancy agreement. The landlord in any AST refers to the person whoever that may be, so the fact it wasn’t your signature on the agreement is irrelevant. IF ALL the relevant documents were served (with proof of service) BEFORE the section 21 was served then the original S21 should be perfectly valid. The only potential issues aside from service of paperwork being correct are whether the deposit was protected and prescribed info issued correctly and in time, (if not deposit needed to be refunded prior to service); was the correct version of the How to Rent guide given ( it has to be the latest one AT THE TIME THE TENANCY COMMENCED and not the one that was current when the landlord served it; the time given must be at least 2 months from the time service is deemed (in other words allowing time for delivery); the correct form 6 needs to be used. (I’m assuming the tenancy was outside any fixed term). The seller has obviously sent the forms into the court, have you been provided with all the court papers? You should contact the court to ensure you receive any further communications directly. From what you’ve said so far I think it sounds promising for you getting the property back when you eventually get the decision.
I’m not at all surprised that the buyers solicitor gave you short shrift. They like to avoid any risk or responsibility.
I hope you are keeping tabs of your costs because they are recoverable. You’ll never get that money back from the tenant, they often have nothing to go after. The seller is wholly liable and I’d be looking to ensure he’s held to account on principle.
I would also make a complaint to the law society. Let them investigate and decide whether the solicitors share any responsibility for this.
You’re obviously much further down the road with this than I assumed on reading your question. Just keep putting one foot in front of the other and you will come out the other side.

Hi, I am sorry to hear about the situation you have found yourself in.

The short answer to your questions are as follows:

1. If the property was sold with vacant possession ('VP') and VP was not given on completion then you could have a claim against the seller for breach of contract however as they will likely have already received the money the risk is that they have already spent all or part of it so I am not sure how feasible this is for you in practice. That being said, the starting point should be for you to check the sale contract and special conditions to ensure that VP was to be provided on completion. If it should have been provided then I would get the solicitor that acted for you to take this up with the sellers solicitor asap.

2. With regards to actually getting the tenant out of the property yourself, as none of the correct tenancy documentation was given to you on completion, unfortunately if the tenant attends the possession hearing they will likely speak to the duty solicitor on the day who will almost certainly identify the missing documentation and ask for the application to be refused which in my experience is likely to be the outcome.

If I were you, I would start from the beginning and rectify all of the documentation issues now and then reserve the section 21 notice a few days later that way you will at least be able to confirm that the tenant has received everything required and therefore give yourself the best possibility of being granted a possession order under section 21.

Also, if you haven't already, don't forget to serve a section 48 notice on the tenant asap because that is another simple step that is often overlooked and results in a possession claim being rejected.

Good luck. Best, Charles

Reply to the comment left by Tom Kearley at 02/02/2023 - 17:57
Why would the tenant withdraw their defence? That would be a really lucky break but there's no reason or logic for the tenant to do it if they are waiting for council help so it seems odd unless they just so happen to have found somewhere else.

If not and if they get genned up they might find they can never be evicted if, say, there wasn't a valid gas safety certificate in place when they first moved in, in which case they'd possibly have to be offered to be bought out.

How does the auctioneer legally get themselves off the hook if they are taking a hefty fee for facilitating a misleading or downright fraudulent sale? Can they really simply say "caveat emptor"?

From my contract LLB days I vaguely remember your contract is with the auctioneer so assuming the property is not with vacant possession your remedy may lie with the auctioneer, I think formally speaking rescission or damages for the specific losses from the misrepresentation,but in reality you'll get a lot further by speaking in a kind way and asking for help and waiting for he/she to get back to you with an offer. Please assume I'm wrong as I wasn't the best student on this topic and haven't genned up since.

I don't know if dealing with the tenant will amount to an election to keep the property and lose rescission option. I don't know if rescission is an option anyway. But if you do deal with the tenant you obviously have to try to make the best out of the situation and then you may be able to recover your losses from the auctioneer (better that you and they have an understanding rather than it be legalistic, litigation is the worst experience).

Reply to the comment left by ImpartialObserver at 03/02/2023 - 10:19
The auctioneer can't avoid liability for the losses caused by a materially incorrect description aimed at the buyer on which they reasonably rely. They may try but can't. They're bound.

You need proper legal advice on your options and the likely costs of suing the seller and/or the auctioneer.

You didn't think to tell your solicitor that the property was tenanted?