Tenant is sub letting, in rent arrears, and out of the country!

Mandy, thanks for the reply, I did ask the letting agent whether we could just add the other 2 people which were sub letting without getting the tenants authority, as I can see lots of complications arising the first being that he will not be receiving the rent money from them, but we will, I was told that as he was in breach of the tenancy that this was possible. I was told the section 21 is not valid as he is not in arrears of rent for 2 months yet, again I don't know whether this is correct. With regard to the AST the plan is to finish it in December, and then re issue to the 2 sub letters as long as everything is in order. I am totally confused now, and getting quite cross about the whole situation as this property is fully managed by the letting agent, who I feel should be dealing with all these things and not throwing it back at us, but thank you for your great advise. One saving grace is that because we had problems previously with this property when we insured we did do a rent protection on it, the only one out of 5 with rent protection, I think it is just an unlucky house.

Hi Michelle

You're on a 12 month AST - is there a break clause (traditionally, ASTs have been for 12 months but with a 6 months get out clause - the break clause)? This means you could serve section 21 from the fourth month, ending the tenancy after 6 months. If there isn't a break clause, to get the tenant out before 12 months were up, you would have to rely on section 8, most likely just clause 12 (unless and until the tenant lets the arrears accrue) - and that would depend on how quickly the matter went through the court system, and what defence was presented.

Your agent seems to have confused Section 21 (Section 21 is a no fault means to simply end the tenancy on 2 months notice) and Section 8, as they're talking about requiring 2 month's rent arrears in order to serve Section 21, but you say they served it in any case, to scare the tenant and his lodgers(?!). If this is the case, this isn't very professional to say the least - are they members of ARLA , NALs, UKALA etc - one of the professional letting agent's bodies? It might be worth having a word with the manager to get to the bottom of this in the first instance - as I said before, letting agents often leave day to day property management in the hands of untrained office administrators - this may well have happened here.

In order for you to be paid the lodger's rent directly, you would need your tenant's authority, or a court order would have to made - so either your tenant has made such an arrangement with the agent or the lodgers, or the agent is assuming the court will grant an order, in which case you would have to wait for the hearing at the very least.

Until the tenant gives you vacant possession (with or without court enforcement officers), he, not you, is the legal owner of that property, which means no one else may enter, far less live there, without his consent (or in this case, the consent of his lodgers, as he has granted them a licence), and any money he is given by the lodgers is his money, unless again he consents otherwise, just as your mortgage lender wouldn't be entitled to take money from your bank account if you were in arrears without a court order. The law is in many ways on the side the tenant, even a bad tenant, unfortunately.

I have to agree with Mandy. Your current tenant has a cast-iron contract granting him exclusivity over the property and you can't make changes to that without his express consent. If he doesn't expressly agree to adding the lodgers to the AST then you will first need to legally end his tenancy and issue a new one. The ending of a tenancy has a very specific definition in law and is not simply accomplished by the expiration of either the minimum term, or the notice period given using a section 21 notice for example...

The cost mentioned of £2000 is just ridiculous.

Firstly, you need to issue a Section 8 notice on YOUR tenant.
To do so, I would register a membership on Pims.co.uk and ask Richard the owner to advise you on the process.
(Other sites are available)

That web site is made for DIY evictions and is well worth the money. This site is brilliant as well, but I'm trying to save you money.

Serve notice and wait for any reaction from your tenant.
Next reassure his sub tenants that you won't force them out and they only need to give him notice of 1 rental period as they are really licencees, at which point they can apply to be your tenant with an AST. ( if you want them to stay).

Stick a max of 4 on one AST, after their notice has expired and they have sent back their keys to him.

Do the right to rent checks etc and get them and you on a sound insurance footing.

Stop dithering and get it done, fast!

Richard will talk you through PCOL etc. (Possession Claim On Line) and CPR (civil procedure rules).

Reply to the comment left by "Michele Brown" at "27/07/2016 - 22:09":

> "The letting agents are telling me that the house does not come under the HMO bracket as it is not 3 stories high or have 5 bedrooms"

I don't believe your agents have correctly informed you.

Your property is a HMO if it has 3+ unrelated people living there forming 2+ separate households and the people living there share basic amenities, e.g. a kitchen and/or bathroom.

That has nothing to do with licensing.

If you have a HMO (as defined above) you are required to meet the HMO rules, e.g. a 5 yearly electrical safety check (something that's not a legal requirement for single lets), fire doors, protected escape routes etc.

If you have a HMO *and* additionally there are 5+ occupants (not bedrooms) over 3+ floors, then you will also require a license from the council.

Note that obtaining a license is separate to your requirement to meet the basic fire safety regulations of a HMO. The difference is now the council will come and check you've done it properly.

See here for more details:

http://england.shelter.org.uk/get_advice/private_renting/about_private_renting/houses_in_multiple_occupation_hmo

If you take rent from your tenants lodgers, you have basically issued them with a tenancy??????? Also do they have a right to rent in this country? which carries a £3000.00 fine and as MIke rightly said you could creating a unlicensed HMO. To avoid this Landlords should do regular inspection on their properties at least every 3 to 4 months.

My best advice would be to instruct a Solicitor to gain possession and start again.

Reply to the comment left by "Dover Letting Agent" at "05/08/2016 - 14:26":

A new tenancy with the sub-letters can't be created by any means if there is already an existing valid AST in place with the original tenant surely?

Also, as the Head Tenant has sub-let making him the lodgers landlord then I would have thought that he was responsible for doing right to rent checks?