Are They Tenants or Squatters (or something else completely!)?

Hi Adrian,

I am not a definitive expert in this field which is why I would personally seek out Paul Shamplina's help at Landlord Action see >> http://www.property118.com/tenant-eviction/39099/

However I know we have a lot of very knowledgeable readers that can help. Please 🙂

They are either unauthorised occupiers, but with rights, or they are permitted occupiers, depends what is said if anything in the tenancy agreement.

Does it refer beyond use as a family home etc to actually naming any occupiers over 18 but not named as tenants? Many agreements do that, like you do in a company let where the agreement names the company's nominated occupier.

You will need to issue a summons for possession in the usual way but who against is interesting. In effect the ex tenants have not given you vacant possession as they have left behind personal belongings - their children. I would start making loud noises to the ex tenants telling them surrender has not been accepted by you - how can it be you cannot have all the keys back - but much here is going to depend on how long ago they were abandoned orphans in the property, and how fast you move now.

The word "recently" sounds hopeful.

The longer the sons have been there without you proceeding against the ex tenants the harder it will be to drag them back into this. Indeed if it is a few months then it is likely a Court might deem implied surrender.

While consulting solicitors - Landlord Action is a very good suggestion - I would start with an immediate rent demand today to the ex tenants and when they try to decline it and say they are no longer tenants tell them they are - they are just not occupying. Just act perfectly normally and ask them for the rent as the tenancy and their responsibilities under it have not ceased.

You should also get them in writing to agree to forfeit the deposit - which scheme is it with?

What does the agreement say about payments made by any other persons being as agent of the tenants?

I think your “ex tenants” are still your tenants as they have not given you back an empty property, so therefore they have to keep paying you the rent, so I would tell the parents that you believe they are still reasonable for the rent until their sons leave as well as all your legal charges.

Landlord Actions is the first name that come to mind for getting this sorted out.

I would argue that they are squatters as they were not part of the original tenancy and living in the property at the time.

Squatting in residential premises is now a criminal offence. So in the first instance contact the Police.

However, if it is proved that they were living there then you will need to go down the civil court route. This unfortunately can be a lengthy process not helped by the significant delays of the County Court Bailiff to effect repossession of the property.

However, if you do get your possession order you can use a High Court Enforcement Officers.

Over the last week, I have been asked several times how we are able to use Section 42 of the County Court Act 1984 to repossess residential property, as others’ experience has been that Judges normally reject the application.

The decision to permit the transfer to an HCEO is, ultimately, at the discretion of the Judge. However, you can make your case significantly stronger by using wording that explains the reason for the transfer to any Judge considering it. Often, it is this explanation that sees the transfer accepted and ultimately, rapid repossession of your property.

Ideally you will request the enforcement by an HCEO in the initial application, explaining the lengthy delays afforded by the County Court Bailiff. Here you will ask the Judge to put this on the possession order:

“Once the time allowed for the Possession Order to expire has passed, by virtue of Section 42 County Court Act 1984 the matter is transferred to the High Court for enforcement”

If the tenants don’t leave, you will then instruct your HCEO, who will apply for the writ of possession (a court fee of £60 is payable), and then conduct the eviction.

If you are also owed rent arrears on the property, you can add a claim for money to the possession order, so that you do not need to apply separately for a judgment and writ of fieri facias.

Whilst I hope you don't need the above I hope it is of some help.

Regards

David

Whether the "ex-tenants" are in fact still tenants will depend, I think, on the circumstances of their move.
If they served a valid notice to quit, then their tenancy did end on expiry. In such case even if it stated that the children where permitted occupiers it no longer applies, and you should not make any demand of rent as that'd risk creating a new tenancy.

Romain,

If the tenancy did end by notice from the tenants, but the tenants have not given the property back then double rent may be due….

It will be interesting if we can get an update on this case once it is sorted out.

The easy out for the tenants of course is to say they didn't know one of the sons had an extra key cut, that the property was empty on day of check-out and then sons moved in following day.

If notice was formally given I agree with Romain that changes the picture a little, but the focus is still hazy.

Accepting rent and creating a tenancy - allegedly - is not the problem it used to be and if a receipt was simply given naming the property and that it was paid on behalf of the ex tenants and if it was only one or two months while oiking them out of the property I doubt it would be deemed to have created a new tenancy.

But it might - and specialist advice and urgent action is the answer. Personally I'd still demand the rent from the tenants and tell them they remain liable until they shift their offspring, then the minute they do accept surrender and change locks is the best practical solutionchange locks.

Hi Adrian,

Did you supply the washing machine, the beds, the sofa, chairs, a dining table, the plates and dishes, etc, etc....?

...If not, then the ex-tenants still have some of their furniture in the property.

Nice try Jeremy good line of thinking but if surrender is deemed to have occured that will just be Torts of Goods Act stuff and disposal after two weeks.

After all if a bailiff oiks out tenants from a property and all their belongings are in the property the tenancy has still ended.

If the grown up sons were definitely not there during the tenancy and have never been given permission to be there as residents I would make them aware in writing that they do not have permission to be in the property and that they must vacate immediately otherwise they are squatting.

If they have entered without a key, i.e. by forcing an entry and have helped themselves to anything that they do not own and did not intend giving back to you (this could be the use of utilities such as power and water) then they may also have committed an offence of burglary.

Don’t make the mistake of asking anyone for rent in these circumstances because you may be inferring permission to occupy.

Without delay speak to a criminal law solicitor who understands the new squatting legislation and I have no doubt it will be referred to the police for action.