Tenants partner moving in, likely issues?

Hi Andrew

I don't believe the incoming partner would gain any rights of tenure and I believe there is also a belt and braces method of ensuring this isn't the case which Industry observer once made in one of his comments. Sadly I can't find it though so hopefully he will post the wording of the document again here.

Be very careful on this.

I had a benefits tenant who failed to declare she was working. I also was not aware At the time local authorities were paying direct to landlords. The first thing I knew about it was when they stopped paying the rent. In fact they stopped paying the rent for four months to claw it back. Despite appeals they said I must have known she was working and had the money back. I know things have changed but no doubt there is something within housing benefit rules that may allow them to claw it back from the tenant- which means no rent for the landlord!

In addition if she has moved a partner in then if you know about it then it is better getting a new AST drawn up. If she says that the partner is not living there then make sure you send a letter confirming any conversations you have with her so in the event of eviction proceedings you can prove that the partner is not a tenant, and also from housing benefits point of view, you have asked if partner lives there and she has said no

She is working and on some sort of top up benefit as a single parent. She pays the rent, not the council.
She obviously knows the system, I just don't want to get burnt later down the road.
I think the letter confirming the partner is not resident is a good idea, thanks for that.

This situation is a classic reason not to accept direct payment and then if the council claim it back from the tenant you will have to evict the tenant unless you wish to suffer 4 months of unpaid rent.
Oh! the joys of HB tenants; which is why I don't take them on at the outset of a tenancy unless I could obtain RGI on them or a guarantor.
A guarantor without RGI on them would not be acceptable.

UNAUTHORISED OCCUPIERS - LICENSOR AND LICENSEE SITUATIONS

Do not confuse the formalised licensor / licensee relationship as underpinned by a licence to occupy with the other scenario where we have to deal with licensees, which is that of unauthorised occupiers.
These situations occur where we become aware, possibly even in advance of the tenancy commencing, that a party other than those named in the agreement as tenants will be living in the property on an ongoing basis as their main residence. The other classic time for discovering, or suspecting, that all may not be well, is on an inspection visit.
In essence we are usually talking about either girlfriend or boyfriend moving in, or a friend staying on a semi-permanent basis. This gives rise to a licensee situation, and there are several courses we can adopt following discussion with the Landlord.
However these situations must be confronted because it is possible that something a little more serious is developing, such as the tenant having moved out and allowed someone else occupancy (known legally as ‘assignment’) or has sub-let part of the accommodation, and is charging rent himself to another party, or he may simply have some form of lodger.
Either way these can be serious situations, especially if it comes to litigation to evict the unwanted occupier who then tries to claim that they have a tenancy themselves. If that tenancy was only as between them and our tenant it may not be so difficult, though it will cause delays and complications. But if they can claim they have a tenancy as between themselves and our Landlord, then that potentially is far more serious.
To that end, and as a general principle in all matters when accepting rental payments, you need to be careful only to accept monies, or in particular to give any type of formal receipt for rental payments, to persons names as tenants in the tenancy agreement. Otherwise, unless just a one-off, you could have a situation where an unauthorised occupier could produce a string of receipts showing they had made payments over a period of time.
This could enable them to make a legitimate claim to have a formal tenancy by approbation which a Court would recognise, then giving rise to all sorts of ensuing problems, not least over possession.
Can we afford to ignore an unauthorised occupier situation and hope it will resolve itself?
It may be that you know the situation will not persist for too long, that the licensee is simply on an extended visit, or that the tenancy is shortly coming to an end and the tenant (and licensee) will be vacating. In this case you can simply monitor the situation and if it resolves itself within a matter of weeks all well and good.
However be careful, as this area is directly influenced by your Duty of Care to the Landlord and the due diligence you owe him as your principal client. If a situation goes pear shaped and the Landlord can show you knew about it and, more seriously, could have reasonably been expected to do a little more about it than just ignore it, or not act firmly enough in the protection of your client’s interests, you could be laying yourself wide open to a claim for damages if the Landlord subsequently suffers any loss.

If you become aware of an unauthorised occupier situation at any time during the tenancy (or before it even starts) then you must confront it and create good file notes in support of the action you have taken. At the very least this should involve sending the letters as set out on the following pages.
Should we formalise the situation at next renewal?
If the tenancy is shortly due for renewal and the existing tenant wants to stay then after discussion with the Landlord it may be possible to join in the unauthorised occupier (licensee) as a joint tenant on the Renewal Tenancy documents. For this you would need to charge a fee, especially if referencing is required, or considered prudent, which it certainly would be.

After all the licensee may have been around originally but not put themselves forward as a tenant because of a suspect credit record etc.
What if the situation will not imminently be resolved?
If the licensee’s position will not rectify itself in the near future, then a decision has to be taken regarding their continued occupancy of the property. If the Landlord is relaxed about this then frankly it is difficult to see why any licensee would not wish to become a tenant, as tenant status affords greater protection than being a licensee, and imposes greater obligations on the Landlord.
We do not want the unauthorised occupier remaining for an extended period because, as mentioned earlier, a tenancy can arise by as by approbation. This could result in legal acceptance and recognition of a situation as a result of not doing anything to remedy it, so the occupying licensee can end up as a tenant by default. This is especially true if they can prove they have been making a contribution to the rent by producing receipts from you.
In such situations it is essential, in order to clarify the position to all concerned and ensure that by default the licensee does not develop some sort of formal relationship with the Landlord, that the letters on the following two pages are sent immediately you become aware of a potential licensee situation. We recommend you do this whether or not you believe the situation is going to be quickly resolved either by the licensee leaving or being joined in as a joint tenant.
These letters, one to the each of joint tenants and one each to every licensee, confirm that the occupier is a licensee of the tenant, who in turn is the licensee’s licensor. In relation to the Landlord, the licensor (your tenant) is the licensee’s agent in all matters i.e. the licensee’s relationship remains one between the tenant and licensee and is not formalised in any way as between the Landlord and the licensee.
Whatever letters are sent, either licensor/licensee ones formalising that situation, or letters to the tenant and occupier outlining that no action is to be taken on the occupancy as it is understood only to be temporary, copies should be sent to the Landlord and retained on file.
If there is a rent protection policy or any other insurance set up by you on the property, advise the insurers.
Ensure too that you tell any Guarantor of the situation as it could affect their position and hence your ability to call upon their Guarantee at a later date.

Letter to be sent to tenant on discovering a possible licensee situation where the unauthorised occupier is to be allowed to remain

Dear
Re: YOUR TENANCY OF
I understand that is now residing with you at the above address.
Whereas the Landlord has no objections in principle to this arrangement I must point out that is not party to your current tenancy, rather has become a licensee of yours i.e. the relationship is between yourself and and has no rights nor exclusive possession to the property or any room therein.
occupancy of the property is not recognised either formally or informally as being any form of tenancy.
Any monies received from in respect of the tenancy shall be deemed to be a payment for you as your agent and shall not under any circumstances give rise to any rights to occupy the property.
Would you please sign and date the enclosed copy letter and return same to me in the envelope provided.

Yours sincerely

I/we acknowledge the statements contained above and agree and understand that is residing with me/us at the above property solely as a licensee of mine and any resultant relationship is between myself and the licensee alone. I confirm the licensee has no rights for exclusive possession to the property or to any room therein and that any payment made by in respect of the tenancy shall be deemed to be a payment on my behalf as my agent.

(All of joint tenants to sign) (Date)

Letter to be sent to unauthorised occupier on discovering a possible licensee situation where the unauthorised occupiers are to be allowed to remain

Dear
Re: YOUR RESIDING AT
I understand that you are now temporarily residing with at the above address.
Whereas the Landlord has no objections in principle to this arrangement I must point out that you are not party to any tenancy that currently has relating to this property, the only authorised tenant of the property is .
You are regarded as a licensee of i.e. the relationship is between yourself and , you have no rights nor exclusive possession to the property or any room therein, your occupancy of the property is not recognised either formally or informally as being any form of tenancy.
Any payments made by you in accordance with the terms of the tenancy as between the landlord and shall be deemed to be payments made as agent of and shall not under any circumstances give rise to any rights for interest in the tenancy in your favour.
Would you please sign and date the enclosed copy letter and return same to me in the envelope provided.

Yours sincerely

I/we acknowledge the statements above and further agree that my residing with at the above property is solely as a licensee of and that my formal relationship is therefore between and me alone. I also understand I have no rights of exclusive possession to the property or to any room therein and that any payment made by me in accordance with the terms of the agreement between the landlord and shall be deemed to be payments made by me as the agent of

(All licensees to sign) (Date)

(All licensees to sign) (Date)

On my tenancy I always write who i am letting the property to and it states that only and( gives the name or names of tenants ) will be allowed to live there.
Its too difficult to try and find out sometimes. On inspections belongings are hidden or I am told they have a friend who just stays overnight. etc . You really cant watch them 24/7 .

IO thankyou for that extensive and very informative post which I believe will be extremely useful to lots of LL; especially as more tenants will find they are having long staying 'guests' as the HB reduces!
Would you suggest that LL who have given permission for a tenant to take in a lodger; that they complete the templates you have suggested.
In the past i have just given lodgers agreements to the tenant and told them what to do and just asked for a copy; they accepting that rent is due from the tenant and if the lodger didn't pay the tenant that was their problem not mine!
Would your way be the better belt and braces approach as I suppose it leaves no doubt!!
I have always advised that the lodger only has 1 month tenancy security; but I wonder what the implications are if the tenant stopped paying rent but the lodger remained but with possibly no tenant to give the rent money to and the LL unwilling to accept the lodger's rent money as a tenancy would then be created.
A veritable minefield I think!!?

I had a nasty unpleasent issue with a black male who was the first love or something of a wealthy white girl who was sharing a house with 4 friends. He got them to lie to me about whether he was in, he arrived late and left early, I discovered a key just inside the porch obviously used to gain access. After 5 months of him being there rent free the girls guarentors also wanted him out it ended up me by chance meeting him at the house with the girl and 2 other tenants which ended up in a 3 hour somewhat heated challenging confrontation on the landing. What I realised a year later was that the clause on who is allowed to stay (mine stated not more than a month) was impossible to prove or enforce and he knew some of his rights. It ended badly with 2 early school best friends split apart she was downtrodden/meak with him despite outbursts (doors got booted and locks damaged)
The solution was a change in the clause allowing only family members which was this
That only the Tenants named in the Agreement are entitled to live at the Property and his immediate family.
So boyfriends are not immediate family and thus I could of said "out on you ear rather than the proof of 1 months rent free occupation".
Tenant was sweet herself and wealthy father paid a higher rent for a bigger room but I wish I had adjusted or known of the weakness of my other clause.

@Gavin P - I'm not sure whether your new clause would be enforceable in law but even if it was technically legal, how could you possibly enforce it?

Reply to the comment left by Mark Alexander at 03/06/2013 - 15:57
Quite right Mark, the only way is a Possession order on the Tenant - and we know how long that takes ( which is why you shouldn't give more than 6 month initial Fixed term, then let it run periodic.)
Thorough Referencing is crucial