Surely I’m not expected legally to have this tenant in my property forevermore??

[Saywhetw]

Tenant been in property since 2017. I need to sell. Solicitor telling me we can’t used section 21 as I didn’t provide the right information at the time of the tenancy and also didn’t carry out electrical report or gas safety checks. This was oversight on our part. We can’t seem to use section 8 as tenant paid rent and isn’t a nuisance or anything but she literally won’t move even though we’ve asked repeatedly she just says she hadn’t got anywhere to go. It doesn’t seem right there’s no way out of this?? Solicitor said best they can do is write a letter asking her to vacate. I will get a second opinion tomorrow but really panicking now

God, I despair…. The OP had broken the law. They are in the wrong and people are suggesting they should be further negligent and behave like an utter bastard to boot?

I have actually but I’ve never been in this difficult position of wanting to sell my own property

This is completely wrong.

The new landlord inherits the existing AST but once the fixed period ends they can issue a new tenancy. This would allow them to issue the correct paperwork.

To be fair, the OP could do this but she then has to wait another six months. As it stands, she can put right some of her wrongs by issuing retrospective paperwork and then restarting the S21. That would speed things up. It’s only the gas safety that I’m not sure of.

Tenant can take it to rent tribunal. You can’t just raise the rent to an untenable amount as a means of eviction.

Majority of landlords are good, so yep, we do need private landlords. Things should be made (very) difficult for slumlords, but the answer isn’t making things difficult for all landlords just because of the actions of a few.

Yes, this is the point I was making. In OP’s position, this will make it very hard to evict using a S21.

And as pointed out! Failing to carry out these checks is a criminal offence with very high financial penalties (up to 30k I believe) and potential jail time. It also makes me think that if you neglected this very basic requirement for a landlord what other responsibilities have you neglected (tax declaration, TDS, proper legal contracts, misc legally mandated documentation)
You need proper legal advice from a specialist, reputable property solicitor. However you will almost certainly not be able to effect your tenant, so your best bet may well be to take the financial hit and sell with the tenant in situ, although you might first have to get through criminal proceedings first as I imagine most landlords would not touch a house that has outstanding legal beaches of the tenancy first, but I'm not a solicitor, hence getting their advice first.
I suspect their must be some way to negotiate criminal liability and negotiate a fine with the courts to alleviate the chance or prison time and a more punitive fine by declaring liability.

I think the OP is sailing close to the wind of being accused of illegal eviction already if she is repeatedly asking the tenant to leave without using the correct processes.

You’ve been very stupid OP!

The new Renters Rights Act might possibly save you when it comes into effect next year as the new Section 8 Ground 1A allows you to seek possession if you intend to sell the property. AFAIK the prohibitions on serving notice without a Gas Safety Cert etc applied to S21 only. I might be wrong but I’d be looking at any restrictions on serving notice under Ground 1A.

You’re not in a good bargaining position. Here’s what I would do:

Let the tenant know that you will be selling the property. Ask for their consent for an estate agent to view it. If they refuse, you will need to use whatever photos/info you have about the property in lieu of a viewing.

Get the estate agent to give you two valuations. One with a sitting tenant, and one without.

Consider the difference between the valuations and the difficulty you might have in selling if they refuse viewings. Make an offer to the tenant in exchange for their surrender of the tenancy. Let them know that you will provide them with a good reference and X amount of time to vacate.

Good luck.

Contact these people:

https://www.landlordaction.co.uk

They will advise you.

You could try selling with the tenant in situ? 🤷🏼‍♀️

Failure to carry out basic, legally required safety checks unfortunately places OP closer to a slumlord than a good landlord.

There are (me!)

there’s an entire company called “Let Property” and they specialise in, you guessed it, selling property that landlords want to sell with tenants in situ. Normal agents will also sell with tenant in situ.

I’m not saying what the OP has done is okay or that she shouldn’t be penalised in some way, maybe a fine or a significant amount of compensation to the tenant, but what if the tenant wants to stay in the property for the next 50 years? There should be a consequence to breaking the law but having a situation where a tenant can stay in situ forever because there is no way to evict seems madness!

I've just got back from our accidentally rented flat with new tenants in today. The first thing I've done is send the deposit protection certificate over. I can well understand Rachel Reeves making a mistake with the Southwark rental licence but the gas/elec certificate checks, these are the most basic checks you need to do. I would really look carefully at all your paperwork and not piss the tenant off- they can claim a lot of rent back if everything is not up to date. Good luck.

Can you sell with a sitting tenant? Or we buy any house people? Ultimately the tenant will have to move even if the bank takes it and auctions it off so its foolish to cause a fuss

@Woodlend I disagree, surely the majority of owner occupiers get an annual gas safety check done, it's like getting your car MOT and service done!? Everyone I know has their.boiler serviced annually and many friends pay for a British gas or similar monthly plan.

Electrical safety check is usually done when an owner first buys their home but you're right not an annual thing.

But you aren't paying for a service in the same way a tenant does. If I pay to get my hair coloured at the hairdresser I expect they have insurance and public liability and it's a safe environment, why would there be different expectations for landlords as business owners?

This is incorrect. There is no legal duty other than a self assessment by the landlord and no time limits on retesting.

https://www.hse.gov.uk/legionnaires/legionella-landlords-responsibilities.htm

Getting your boiler serviced is not the same as a gas safety check for renting.

OP - you will be able to use ground 1A when the Renters Rights Bill is enacted. This is the ground for landlords who want to sell their property. As far as I am aware it is mandatory ground so shouldn't be refused in court but expect there to be a long delay in it getting to court now section 21 is being abolished.

It really isn't an 'oversight' not getting the basic safety checks done on a rental property - this is why good landlords are now subject to over regulation and leaving the sector in droves.

Would ground 1A under the new legislation be allowed if there was no gas safety at the start of the tenancy?

ETA: Sorry, didn’t read your post in full, I see you address this!

Your solicitor surely told you rectify those mistakes and reissue a new section 21 after .

You should have provided ‘how to rent guide’, EPC, and Gas Safety at the time of move in (2017).
EICR’s weren’t legal until a couple of years ago.
However, the tenant can take you to court if you failed to provide any of the first 3, also if you didn’t protect the deposit within 30 days of it being paid.
The tenant has more rights than you do as the legal owner of the property, because you failed to comply with tenancy agreement laws.
I know that isn’t what you want to hear, but that’s what it is.
You can tell with a tenant in situ, and ONLY with the tenant in situ, but any landlord worth their salt will want to check the tenancy agreement first and if they know what they’re doing, they won’t take it on, because they can’t evict the tenant.

Tenants don't have to allow access to someone viewing. Op you really need proper legal advice as you are at risk of a huge fine here.