Help please - friend cannot get these lodgers out of his home - do they have a tenancy?

[newname100]

Please can anyone with housing knowledge advise as my friend is basically being pushed out of his own home.

My friend decided to rent rooms out in his house to two individual guys - one bedroom each and use of kitchen etc. He thought they were lodgers but in the worst case scenario licensees who he could ask to leave on a month’s notice. They paid a deposit. All was fine for 6 months. My friend then went overseas for 9 months to look after a sick parent. He left the key with relatives, so they could keep an eye on the property and check on his stuff as he left most of his belongings behind and had his own locked bedroom there.

This is when things started to go wrong. The lodgers continued to pay rent but refused to let his relatives in to look at the property and would not allow estate agents round to value the property when my friend decided to put it on the market, so he was unable to sell it. They also took it upon themselves to get the electricity and gas account put into their own names without permission.

My friend is now back and wants them out of his house. He has tried to obtain advice on the position, but most helplines are there to protect tenants from rogue landlords and not the other way around. He is now being forced to live in his own house with people he does not want there, and they can be quite aggressive towards him.

He has spoken to the local council who told him there is nothing he can do about this as he was out of the country for some time. He also spoke to a solicitor who is supposed to specialise in tenancy law but what he has been told sounds a bit off to me. He was told that because they have been in the property for over a year and he was out of the country for more than 6 months the licence automatically becomes a tenancy. He was told he needs to serve a section 21 notice. I thought this was only used in the case of assured shorthold tenancies which is not the case here and I did not think it was possible for an arrangement to morph into an ast. It may be key to this discussion as to whether they had exclusive possession of the house. To begin with he lived there with them, then when he went abroad they still never had full possession of the whole property (he always had a bedroom there) and it was intended that his relatives could pop in to see if everything was ok and to stay in his room if they wanted but the lodgers always refused them entry. Surely the lodgers should not be able to argue that they had exclusive possession of a property where they stopped others gaining authorised entry or is it the fact that he was out of the country that gives the lodgers exclusive possession (although as I said above he still had his own locked room). He has also been told he now needs to go to the expense of getting several things associated with a tenancy such as a rented property licence from his borough in order to let the property (and until then this arrangement that he does not want to even exist puts him at risk of a £30,000 fine for illegal letting) and things such as gas safety certificates.

Does any of this sound right? Has anyone got any advice on this or could they perhaps point me in the direction of a help line that might help? The citizens advice bureau said they cannot help him as they are there for tenants and not landlords (odd as I would have thought he was still a "citizen") and Shelter said the same thing. There must be a way for him to get these men out of his home and who are basically holding him to ransom. Thanks.

Try landlord zone for advice. Your friend needs help from eviction specialists not solicitors. (Most) Solicitors are not specialists in tenancy or housing law. Your friend can look at online reviews of eviction specialists to work out who best to use , if you actually neeed one. This could be just harassment by lodgers and he can simply change the locks, ask first , and he needs to keep a log of incidents.

The law for lodgers is completely different than for AST. Ring a bailiff or sheriff company they can get them out. They do not have a tenancy agreement they are lodgers completely different.

Thanks. User145017537 thansk for your comment too but if you read the scenario above he has been told that due to the fact that the was out of country for 9 months etc that they are tenants now. Does this sound like rubbish?

Your friend has 3 choices.

1. The lodgers are bare licensees because they have never had exclusive possession of the property. Even though the owner was away for 9 months he still retained a room at his property for his exclusive use. This is evidenced by his leaving his belongings in his room. The only issue with this, is the lodgers putting the utilities into their own name. This is evidence they had a tenancy. Does he have a copy of the advert for the rooms to let. Did he use a letting agent? Does he have any other evidence the property was not let on an exclusive basis. In whose name is the council tax? If they sre licesees he can just change the locks and remove their belongings. The protection from eviction act 1977 does not apply to licensees.
2. They were not lodgers but he granted exclusive use of the property in the form of an AST. He was away for a long period of time. But he has now returned and is back living in his property. So not sure the evidence is there. Nevertheless, if they do have an AST he needs to serve a valid s21 (6 copy available on gov.uk website ). If it is an AST he is in deep shit because presumably he did not serve them with a how to rent booklet, an epc or a gas safety certificate which means any s21 will not be valid.

Personally in this position i would change the locks and remove their belongings. The danger is they commence proceedings against him for unlawful eviction, which carries civil as well as criminal penalties. Thats a risk i would take but i'm a landlord and a solicitor, not practising, but he may not wish to.

1. He speaks to them, and suggests he grant them a 6 month tenancy, with exclusive possession. He serves the correct documents as well as a tena cy agreement and then proceeds to evict them after 6 months with a s21, possession order followed by warrant of eviction. DO NOT use people who say they are eviction specialists. If he wants further advice use a solicitor who has all the correct indemnity insurances and specialises in landlord and tenant, residential.

Hope that helps.

Just a thought, were there locks on all the bedroom doorsor just his? This is a very important point.

It sounds like he needs proper legal advice.

Yes the fact he left the property does mean they could be considered tenants. Lodgers have a live in landlord. He moved out. To be a live in landlord you have to actually live there on a day to day basis, having your own room is not enough. Otherwise loads of dodgy landlords (not saying your friend is dodgy!!) would just lock a room in their property as lodgers have few rights compared to tenants. The strange thing is that he is now back living in the property, so is he now a live in landlord again? Or did their tenancy start (and not finish) when he left?

The problem (as you know already) is that the section 21 can not be served without all the other paperwork in place. You don’t say if you are in England or Scotland but stuff like giving out the how to rent book, deposit protected or returned, gas safety checks etc. Without these the section 21 will be refused in court and you will have to start the whole process from the start. After that all goes through he will almost certainly have to employee bailiffs. This will probably cost your friend hundreds to thousands.

He needs legal advice and fast. Try these guys. www.landlordaction.co.uk

That isnt right. The correct question is whether they had exclusive use.

And if its an AST and no gsc was served he cannot ever serve a s21 during the current tenancy.

Jack 65 thanks so much for the reply. I have got more details now. The 2 guys apparently share one room ( brothers). There is a lock on their bedroom door although my friend has a key. My friends room also has a lock.

I have some questions on what you have to say.

Choice 1 - I’m not sure how them putting utilities into their own name which they were not authorised to do suggests that there is a tenancy - they did not have permisson to do this, provided no evidence to the utilities that they were entitled to do this (as they were not) and my friend immediately changed these back to his name when he realised what they had done. The bills were only in their name for 4 months. I don’t believe he had a copy of an advert and he didn’t use a letting agent. The lodgers are not on the council tax bill - my friend is and he pays full council tax and not a single person discount.

Choice 2- I cannot follow your point about granting exclusive use of the property in the form of an AST. He did not do this - are you suggesting the fact that he left automatcially creates an AST? I was under the impression an AST has to be created in a specific way and cannot just be created as some other types of tenancies can be.

Choice 3 - I understand that this is an attempt to get the right paperwork in place from the start but he is n't going to do this and give them exclusive possession as he needs somewhere to live.

Thanks so much.

Can you have an AST of a room in a property?

He doesnt have to give them exclusive possession to issue a new Ast with the correct documentation. He can grant an ast and remain in the property.

And yes you can have an ast of just a room.

The problem is i think you are going to struggle to get a definitive answer.

The point being an ast can be created by default. If the landlord does not live on the premises it is an ast by default. It is the creation of a tenancy in those situations whatever you call it. You can call a balloon a pen, but its still a balloon, if you see what i mean.

If hes willing to spend a couple of hundred pounds on a direct access barrister i can give you a name of a v good one. She will give an opinion and advise best next steps. Pm me if you want her name. I think she will probably say issue a 6m tenancy or pay them to leave.

Thanks I will spek to him and revert - you have been so helpful - thanks.

Could he help them find somewhere else to live, maybe even show them how to register for social housing. Offering money to help them move and a bit towards their new deposit/rent can help and is often cheaper than legal action.

Done all of this, offered to give them 2 months rent cost - Social housing wont help as they will be making themselves deliberately homeless and they literally refuse to leave his property. He is scared living in his own home.

I’m also a landlord. How come AST’s have to be signed and witnessed if tenants can just create one. I think this is bollocks and they are trying it on. They are lodgers and as such can be removed. I wouldn’t hesitate and I’m normally a soft touch. I think also there is a bigger picture here. Is your friend vulnerable? Because it seems to me they want the property off of him. This isn’t as far fetched as it would seem. I just heard of gypsies who tarmaced over some river fronted land owned by a friend. They demolished the building that was on the land. Long story short they are now the new owners because they intimidated my friend who didn’t want any trouble.

user if the property owner does not live on the premises, it is an assured shorthold tenancy by default. I'm not saying that, the Housing Act 1988 states it and it is a well established principle. The reason you have a TA is so you control the terms of the tenancy, rather than having them implied.
The risk Ops friend has is the last reported case I read about involving illegal eviction cost the landlord around £20,500. Although there was pretty nasty behaviour on the part of the landlord in that case, it is a risk having reflected on it, that I wouldn't take.

You don't need your TAs witnessed though, that's probably overkill! See below for the relevant section.

*1Assured tenancies.

(1)A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as—

(a)the tenant or, as the case may be, each of the joint tenants is an individual; and

(b)the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home; and

(c)the tenancy is not one which, by virtue of subsection (2) or subsection (6) below, cannot be an assured tenancy.*

Unfortunately this is a tenancy by default. Call the national landlords association. It's £100 to join but they have an advice line. I would also engage a tenancy specialist lawyer but this will cost ££.

Can he move back in and make them so uncomfortable that they have to leave.

I think the best way forward may be to make an application to court under ground 1. This is that the owner of the property needs the property back in which he intends to live. Although Ops friend has not served the required notice at the beginning of the tenancy under the circumstances outlined, it would be absurd for the tenants not to realise his intention to return to live in the property so the notice requirement could be dispensed with. I think a sympathetic judge might go for it, but it would need to be very well argued, with a very well prepped junior barrister or very knowledgeable litigant in person.

Op, please pm me the outcome, even if six months down the line, because it's quite an interesting case.

So if you offered a room to a friend who was homeless, as some of us have done, and you then had to go abroad for a couple of months, said friend could say they had created an AST in your absence. Well every day’s a school day.

I'm not sure a couple of months would do it. I guess in this case, 9 months away means he was not living in the property, so at some point the licensees became tenants. It isn't cut and dried, that's the problem, and it might in the end depend on to what extent the tenants know the law, and ultimately if it came before a dj, how he will interpret it. There are valid arguments both sides. However a s21 at this stage would still not be valid.

Oh this was a zombie which was revived when someone (now deleted) was offering their services, then presumably realised it was a zombie.
I was wondering what happened in the end.

Hello newname100

How did the situation with your friend get solved? I too will need to go away for 3 months to help out my elderly parents and am thinking of getting a lodger a couple of weeks before I leave (so the property wont be empty for so long).

Thanks