Any letting legal experts out there please?

[MaggieW]

Here's the scenario.
"A" rents a property and is solely named on the tenancy agreement. Unbeknown to landlord (and agent who manages the property), he's moved out and sublet to two employees with whom he's subsequently fallen out. Subletees have changed the locks. "A" gave notice a month ago and has just revealed to agent what he's done as he's now worried they won't move out. Agent has visited property but gained no response and now written to occupants saying vacant possession is due this Saturday as tenancy ends then. If subletees don't move out, what is the legal position and what can Landlord do please? TIA.

Landlord will have to go to court to evict the current occupants

I'm not a lawyer but I've been a landlord on and off for years now.

Are you the landlord? First, make sure you're not tempted to force entry into the property - with a very few exceptions, it's a criminal offence.

Are you still receiving rent? If so, try talking to the new 'tenants' and see how they feel about taking the property on formally. This is pretty much your best scenario.

If the new 'tenants' are not paying rent, you could try paying them to leave rather than go down the eviction route; this will leave a nasty taste in your mouth but will save you a lot of money in the long run.

Otherwise you'll need to bring formal eviction proceedings and these can be very drawn out. You're looking at around four to six months to get your property back. You may also have to write off the lost rent.

Do you have landlord insurance? You may be insured for this and there should certainly be a legal helpline you can phone. You can also try the very helpful forum at landlordlaw.co.uk

You may be able to take recovery action against your letting agent if he/she failed to inspect the property, or the original tenant "A", but that's a way down the road yet.

Thank you, thisoldgirl. The agent's is approaching new "tenants" to see if they want to take on the property formally.

Is it considered forced entry if entry is gained via a backdoor key which the agent has?

What about if "A", being the official tenant, gains entry by force, what happens then please, in terms of criminality? The agent says he is on a short fuse and may take action even though he's been cautioned against it by the agent.

Thanks again.

I'd definitely sue the original tenant, A, who did the subletting! Interesting that everyone has fallen out with him...

The sub letting tenant doesn't have the same rights as a genuine tenant. They're squatting so while getting them to take on the tenancy is the best option if they don't want to then it is easier to evict them than a normal tenant. You can enter the property, even breaking in as long as you don't use force against them. Pick a time when they're all out then go in and change the locks.

If that's not an option you can apply for an interim possession order.

The tenant has the right to force entry to the property now, but must repair any damage.

The landlord should not take any action until the tenant's notice period has expired.

NocakeWhilst what you say about "squatting" is correct, in this case it seems these 'tenants' have taken on a sub-let. This is because they have (apparently) been allowed to live in the property with the original tenant's consent, and if money has changed hands between "A" and the new 'tenants' then a contract between them does exist.

Consequently they do have enhanced rights of occupation and are therefore not squatters . (Unless "A" had the foresight to issue a Licence of Occupation, which somehow I doubt).

Maggie Was your agent conducting regular inspections of the property? Was an S.21 correctly issued to tenant "A"? If the answer is no, I suggest you make a third party claim against your agent's professional indemnity insurance if he's unsuccessful in persuading the new 'tenants' to move onto a formal AST.

There is probably no point taking legal action against "A" unless he has the money to make this worthwhile, but you could certainly investigate disputing the release of his deposit with DPS.

In real terms, what I think has happened here is that a once friendly flatmate arrangement has gone wrong. If you try to be reasonable and pleasant with the new "tenants", you may find they sign up to a formal contract and all will be well. It's worth pointing out to them that it's in their interests to be co-operative: they'll need a landlord's reference for their next tenancy, and a CCJ will appear on their credit record for 6 years if they have to be evicted.

Front door or back door, it is "forced entry" if the letting agent (or anyone else apart from the tenants) lets themselves in without the statutory 24 hours' notice in writing (and - with a very few exceptions - you must have consent from the tenant to access. Note that notice and consent are not the same thing legally!)

Are you one of the sub lettees?

I think this has similarities to the cases in london of romanians moving into people's houses while owners were on holiday and changed locks etc.

In those situations I believe that the police are able to get involved under criminal law if a legitimate owner has been displaced and can prove this.

However i think this has a time limit so if the sub letting tenants have post dated mail and/or a letting contract and/or they can show transfer of monies to A equivalent to rent then civil law probably applies and the owner will have to go to court and serve notices etc before eviction day. All this process could only start after the end of A's end of tenancy.

Under civil law no one can break in and change the locks to take posession of the flat (without proof that they currently live there) and so the police would just let the sub lettees in again.

However if the sub lettees have no.contract, stopped paying rent and council tax etc and cannot demonstrate a long period of occupation when compared with A, then I imagine A might be able to stay if they could show that they were a legitimately displaced owner.

So the answer is "it depends"!

If you are a sub lettee and you want to stay why not get into a new agreement with the agent? If you have looked after the property we you are in a good position to negotiate a good rent apart from anything else!

Thanks. No, I'm not tenant or anything else. This is happening to a close family member who is landlord.

Thisoldgirl so effectively if tenant, who's signed the lease, consents to the agent entering, which tenant has said he's quite happy for him to do, then agent can? And it won't be forced entry if they're able to use the back door key without forcing the door and/or go in and change the locks?

The agent last inspected just before the fall out, so they've done what they have meant to.

What's an S.21 please?

Thanks again.

If the named tenant has agreed to entry then it is not forced entry, trespass, harassment or anything else. (Note that "forced" does not necessarily imply the use of physical force).

Nonetheless I think you need to be very careful regarding the occupier rights of the new "tenants". I'm afraid at this point my knowledge ends, and would strongly suggest you consult a solicitor specialising in landlord and tenant law.

An S.21 is the document that formally ends a tenancy - there are strict rules about when and how it is served.

Is tenant A's deposit protected?

Just seen that the agent inspected "before the fallout". So I presume he/she knew that there were people other than the named tenant living in the property.

That's his insurance counterclaim gone, then?

Thanks Thisoldgirl. Yes, you're right re agent, although that will be something to deal with when either a new tenancy agreement is signed with current occupants or vacant possession is gained.

It was "A", legal tenant, who gave notice to leave.

Deposit is protected, thankfully.

Sorry if this is stating the bleeding obvious, but you'll need to file a dispute against Tenant A's deposit until you know for sure that you're not going to be out of pocket on the breach of contract. Arrears, bills, legal costs and so on will add up.

Aghast and yet not surprised that the letting agent was aware of the sub-let but didn't think to question this. Dare I ask if they're a member of ARLA?