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  • FIRST POST
    • redandwhitestripes
    • By redandwhitestripes 14th Sep 17, 12:11 PM
    • 35Posts
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    redandwhitestripes
    Friend living as tenant with no contract
    • #1
    • 14th Sep 17, 12:11 PM
    Friend living as tenant with no contract 14th Sep 17 at 12:11 PM
    Am writing this for my sister ( yes really!!) as we want to get some advice on a situation.

    My sister owns a house- property A
    ( I am on the deeds as well although I didn't put any money in - it was done years ago to help her get a mortgage).
    There is no mortgage left on this.

    She lives with a partner in property B - which they have a 50/50 share - again no mortgage.

    Property A is currently occupied by a friend of my sister - she has been there for about 5 years, originally as a favour.
    The friend doesn't pay rent, but pays bills and keeps the house tidy - also, and importantly, there is no official contract.
    Stupid I know but things just happened..

    Unfortunately now, my sister and partner are splitting up and will eventually sell property B and my sister will want to move back into property A.

    She has explained the situation to the friend, who having had years of enjoying rentfree living, is now delaying things and being a bit stubborn.

    My sister has been good and given 2 months notice orally, and by email , but am wondering where this stands legally.

    Can we use a Section 8 or 21 notice as there is no deposit or contract?
    I'm not sure if this is a 'tenant at will' situation.

    She is going down the diplomatic route first, but just in case things get sticky.....would be good to know where we stand.
Page 1
    • theartfullodger
    • By theartfullodger 14th Sep 17, 12:27 PM
    • 9,050 Posts
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    theartfullodger
    • #2
    • 14th Sep 17, 12:27 PM
    • #2
    • 14th Sep 17, 12:27 PM
    The "pay bills and keep tidy" may count as "rent" (rent doesn't have to be money)... EXACTLY what bills do they pay - and do the handle maintenance, repairs?

    In sister's shoes I would use a solicitor specialising in landlord/tenant to handle this. Think she/solicitor needs to serve a valid "Notice to quit". Her email probably isn't this.

    It's possible the courts aren't needed, but sounds like this occupant may argue they should be & sister ends up in court... (illegal eviction is both a civil {£££} and criminal {jail..) offence for which landlords can & have gone to jail...)

    See also...
    http://england.shelter.org.uk/get_advice/downloads_and_tools/tenancy_checker
    • G_M
    • By G_M 14th Sep 17, 12:32 PM
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    G_M
    • #3
    • 14th Sep 17, 12:32 PM
    • #3
    • 14th Sep 17, 12:32 PM
    Am writing this for my sister ( yes really!!) as we want to get some advice on a situation.

    My sister owns a house- property A
    ( I am on the deeds as well although I didn't put any money in - it was done years ago to help her get a mortgage).
    There is no mortgage left on this.
    Your sister does not own property A. You and your sister jointly own A.

    She lives with a partner in property B - which they have a 50/50 share - again no mortgage.

    Property A is currently occupied by a friend of my sister - she has been there for about 5 years, originally as a favour.
    The friend doesn't pay rent, but pays bills and keeps the house tidy - also, and importantly, there is no official contract.
    Stupid I know but things just happened..
    So friend is living there under licence. As an 'Excluded Occupier' (which means excluded from the protection of normal tenancy law).

    But are you 100% sure no rent is paid? Rent is not just cash given to the owner(s). It can include
    * payment made to mortgage lender
    * services provided
    * payment in kind
    * money invested in the property eg paying for a new extension, new kitchen etc

    Unfortunately now, my sister and partner are splitting up and will eventually sell property B and my sister will want to move back into property A.
    how are relations between sister and her friend?

    She has explained the situation to the friend, who having had years of enjoying rentfree living, is now delaying things and being a bit stubborn.
    Oh-oh!

    My sister has been good and given 2 months notice orally, and by email , but am wondering where this stands legally.
    email's not bad. A formal letter better, bth legally and in terms of it's psychological impact.

    Can we use a Section 8 or 21 notice as there is no deposit or contract?
    I'm not sure if this is a 'tenant at will' situation.
    I don't think a S21 is needed. But please check and answer the rent question above. This could be crucial.

    She is going down the diplomatic route first, but just in case things get sticky.....would be good to know where we stand.
    Originally posted by redandwhitestripes
    If friend is an Excluded Occupier, you and sister (yes - you are joint owners!) can withdraw the licence to occupy. The email /letter does this.

    You can then go in and change the locks. Do you have keys?

    edt: might be an idea to quote here exactly what the email said - any suggestion in the email that the friend is a tenant or has a tenancy could be used by her to pursuade a court she has tenancy rights........
    Last edited by G_M; 14-09-2017 at 12:35 PM.
    • saajan_12
    • By saajan_12 14th Sep 17, 12:48 PM
    • 962 Posts
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    saajan_12
    • #4
    • 14th Sep 17, 12:48 PM
    • #4
    • 14th Sep 17, 12:48 PM
    Property A is currently occupied by a friend of my sister - she has been there for about 5 years, originally as a favour.
    The friend doesn't pay rent, but pays bills and keeps the house tidy - also, and importantly, there is no official contract.
    Originally posted by redandwhitestripes
    An 'official' (do you mean written?) contract isn't so important, as the actions indicate what was agreed. The key is what exactly the friend pays in bills and does in 'keeping the house tidy'.

    A: If the bills are things an LL is responsible for (e.g. ground rent, mortgage, repair bills) or if the 'keeping tidy' are LL repairs / capital improvements / necessary renovation to the structure then these could be payment in kind for rent.
    => Then friend is a tenant. The LLs (joint owners so you and sister) should serve Section 21 and obtain a posession order through the court.

    B: IF bills are just for friend's usage e.g. utilities, broadband, other services and 'keeping tidy' is just for friend's enjoyment of the place and small scale decoration / maintenance, then there is NO RENT being paid.
    => Then friend is an excluded occupier. The LLs should give reasonable notice (min 7 days, I'd suggest 1 month) to vacate. Ideally in writing but not necessary.
    • xylophone
    • By xylophone 14th Sep 17, 12:57 PM
    • 23,428 Posts
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    xylophone
    • #5
    • 14th Sep 17, 12:57 PM
    • #5
    • 14th Sep 17, 12:57 PM
    My sister owns a house- property A
    ( I am on the deeds as well
    Then you too are a legal owner of the property?

    Are you saying that you are not a beneficial owner because there is a Deed of Trust?
    • redandwhitestripes
    • By redandwhitestripes 14th Sep 17, 1:12 PM
    • 35 Posts
    • 21 Thanks
    redandwhitestripes
    • #6
    • 14th Sep 17, 1:12 PM
    • #6
    • 14th Sep 17, 1:12 PM
    Thanks all so far for the replies.
    Will google ' excluded occupier '

    Just to clarify - I guess i am a legal owner , I just dont see myself as that, as I have never lived in the house.
    My name was on the mortgage originally as my sister wasn't working at the time but had savings to buy the house back then.

    The friend has paid all bills, inc council tax, utilities.
    No work has been done on the house in those 5 years , just general upkeep.

    I think what is galling is that her son ( 30 yr old) stays there at weekends as well , having rented his own house out.

    The friendship is ok at the moment , but you know how things can turn , especially when a freebie like this is being taken away
    • AdrianC
    • By AdrianC 14th Sep 17, 1:15 PM
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    AdrianC
    • #7
    • 14th Sep 17, 1:15 PM
    • #7
    • 14th Sep 17, 1:15 PM
    My sister owns a house- property A
    ( I am on the deeds as well although I didn't put any money in - it was done years ago to help her get a mortgage).
    Originally posted by redandwhitestripes
    So you BOTH own Property A. Tenants in Common, or Joint Tenants? If TiC, what's your share?

    Property A is currently occupied by a friend of my sister - she has been there for about 5 years, originally as a favour.
    The friend doesn't pay rent, but pays bills and keeps the house tidy - also, and importantly, there is no official contract.
    Stupid I know but things just happened..
    You're as much to blame as your sister, since you are much this person's landlord as your sister is.

    Unfortunately now, my sister and partner are splitting up and will eventually sell property B and my sister will want to move back into property A.
    Seems fair, and no real friend would have any issue with that.

    She has explained the situation to the friend, who having had years of enjoying rentfree living, is now delaying things and being a bit stubborn.
    Some friend.

    My sister has been good and given 2 months notice orally, and by email , but am wondering where this stands legally.
    So you (jointly) have not given any legally valid notice yet, merely asked nicely.

    Can we use a Section 8 or 21 notice as there is no deposit or contract?
    The tenant has a standard Assured Shorthold Tenancy. The fact no rent is paid makes little difference. You (jointly) need to issue an s21 notice, officially. If the tenant still does not move out, then you start down the route of gaining possession through a court. If there was a deposit, then it'd need to have been protected - but there's no need for a deposit.

    Forget s8 - the tenant's not breached any of the grounds.

    Great example of why friendship and substantial amounts of money should not be mixed...
    • xylophone
    • By xylophone 14th Sep 17, 1:18 PM
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    xylophone
    • #8
    • 14th Sep 17, 1:18 PM
    • #8
    • 14th Sep 17, 1:18 PM
    I guess i am a legal owner
    I would sort this out with a solicitor and take advice about removing the "friend" from the property as well.
    • theartfullodger
    • By theartfullodger 14th Sep 17, 1:19 PM
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    theartfullodger
    • #9
    • 14th Sep 17, 1:19 PM
    • #9
    • 14th Sep 17, 1:19 PM
    Never ever rent to friends or family. Never allow zero or very low rent to occupants. If you wish to support someone, get them to rent elsewhere, boring commercial tenancy, and then give them the rent monthly: (You've been giving them the rent monthly, allowing them to live there rent free..)

    If you've bought (solely or jointly) any property since the stamp-duty change you should have paid 3% stamp duty.
    • aneary
    • By aneary 14th Sep 17, 1:23 PM
    • 743 Posts
    • 622 Thanks
    aneary
    Tell the 'friend' that if she doesn't move out then rent will need to be charged. Market rate + 10% to account for the five years free rent she may want to move then.
    • theartfullodger
    • By theartfullodger 14th Sep 17, 1:28 PM
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    theartfullodger
    Tell the 'friend' that if she doesn't move out then rent will need to be charged. Market rate + 10% to account for the five years free rent she may want to move then.
    Originally posted by aneary
    But don't actually do that: She could pay 1 month's rent then would have much stronger tenant rights and be harder to evict.
    • redandwhitestripes
    • By redandwhitestripes 14th Sep 17, 1:58 PM
    • 35 Posts
    • 21 Thanks
    redandwhitestripes
    Appreciate the replies.

    I had taken a back seat with the house as I live in London, my sister in Birmingham, so it is only now when she needs the place back that I am getting involved - I can be the bad cop so to speak.

    Certainly the lesson about mixing friends and business is clear.

    At least it seems if talking to her doesnt work , then a S21 will get things in motion
    • theartfullodger
    • By theartfullodger 14th Sep 17, 2:30 PM
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    theartfullodger
    No, not s21. That would be you stating they have an AST, many more rights than they currently have.

    Use a SPECIALIST solicitor.
    • G_M
    • By G_M 14th Sep 17, 2:36 PM
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    G_M
    Do not serve a S21.

    I refer you to post 3 above:
    might be an idea to quote here exactly what the email said - any suggestion in the email that the friend is a tenant or has a tenancy could be used by her to pursuade a court she has tenancy rights........
    A S21 would have the same effect.
    • redandwhitestripes
    • By redandwhitestripes 14th Sep 17, 2:45 PM
    • 35 Posts
    • 21 Thanks
    redandwhitestripes
    ah ok , sorry misunderstood s21

    Will go back to the Excluded Occupier , and then solicitor

    Hopefully it wont come to it, but thanks for the advice.
    • G_M
    • By G_M 14th Sep 17, 2:52 PM
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    • 48,532 Thanks
    G_M
    Thanks all so far for the replies.
    Will google ' excluded occupier '
    Originally posted by redandwhitestripes
    Apologies. This is probably the wrong term and does not apply here.

    Though the essence of the advice still stands.

    The critical distinction is between a tenancy, and a licence. A licence is a permission to occupy and can apply to, for example, your mate who stays the night, a relative who spends the week with you, or a friend who you let live in your house for a period of time.

    A tenancy is formed if rent is paid in return for the right to occupy. That is why several of us have stressed whether or not rent (in some form or other) has been paid.

    Once a tenancy is formed, it then becmes a matter of whether it's an Assured Tenancy (eg AST) or whether the occupant is an 'Excluded Occupier (eg a lodger) who is excluded from most of the rights of an AST tenant.

    In your case, the ideal situation would be for the friend to be a 'licencee' who you can chuck out as easily as your mate who stayed the night, simply by revoking the licence ("Please leave").

    This link from the Legal Action Group may help:

    http://www.lag.org.uk/media/205276/housig_law_handbooks_chapter_1.pdf
    • AdrianC
    • By AdrianC 14th Sep 17, 3:00 PM
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    AdrianC
    A tenancy is formed if rent is paid in return for the right to occupy. That is why several of us have stressed whether or not rent (in some form or other) has been paid.
    Originally posted by G_M
    The "friend" was maintaining the property.
    • Out, Vile Jelly
    • By Out, Vile Jelly 14th Sep 17, 3:32 PM
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    Out, Vile Jelly
    Tell "the friend" you're happy to have helped them through a rough patch by providing a free house for five years, offer a reasonable timescale for them to leave, and say you will provide a good reference if required. Be prepared for the friendship to be over.

    You'll need to clarify your legal options, but you can do this behind the scenes without going in all guns blazing.
    They are an EYESORES!!!!
    • G_M
    • By G_M 14th Sep 17, 5:58 PM
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    G_M
    The "friend" was maintaining the property.
    Originally posted by AdrianC
    though it's still unclear exactly what 'maintaining' means in this case.

    OP said:
    The friend has paid all bills, inc council tax, utilities.
    No work has been done on the house in those 5 years , just general upkeep.
    which is no more than covering their own costs, not the OP's costs (though Council Tax might be ambiguous).
    • AdrianC
    • By AdrianC 14th Sep 17, 6:06 PM
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    AdrianC
    CT and utilities would be the tenant's responsibility in any case, of course.

    "General upkeep" - now there's a catch-all term... If that's stuff that a normal tenant would be pointing the LL to (which I suspect it is), then that'd almost certainly count as "rent" in kind.
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