Dad living in my house - is he a tenant?

BigAunty

AFAIK, if a tenant does not hand back keys or give written notice, the landlord has to assume that the tenant is still in possession of the property and need to proceed through the courts to gain a possession order.

The risk for a landlord who assumes a tenant has abandoned a property and then takes possession of it when they have not formally ended the tenancy is that the tenant can simply take up occupation again or claim that they've been illegally evicted and seek a criminal conviction and compensation from the landlord.

http://www.landlordzone.co.uk/legal/abandonment.htm

I also thought that as long as a landlord has completed the S21 or S8 correctly, a judge must find in favour of the landlord and has no discretion whatsoever but to give mandatory possession to the landlord. I don't think they have the capacity to reject the case.

I assume you never received back the keys, nor written (or even verbal, though hard to prove) notice? When did he stop paying rent?(though tenants in arrears still have the right to live in a property so this doesn't mean too much)

Are you planning to give your mother back her deposit less shared expenses, such as the refurb and legal fees (meaning you pass on the cost of evicting your father to her this way)?

And you've got written proof of him contradicting his leaving date with the court, as he said he was still at the property later than he claimed to the court? So I guess you need to inform the court that he claimed to still be living in the property in June, that he was still entering the property in July to forward mail and you never received keys?

Are the neighbours in touch with you to let you know of his comings/goings and can they give a statement to the court that contradicts his leaving date in order to impress upon the judges that you need possession now, that his testimony is false?

OR perhaps you can stop the legal action now, accept the letter to the court as proof that he's now left, meaning that he will not be able to take you to court claiming that you've illegally evicted him, just go there with a locksmith and change the locks.

I think there are two separate issues - the possession order, plus the council tax. If he's registered to pay council tax somewhere else, I guess this makes you liable to pay the void period.

However, AFAIK, empty properties that are in the process of being refurbished can get a discount for 6 months so if you go in and empty it of furnishings as you plan to restore and sell it (taking note of your responsibility to look after his belongings rather than toss them), perhaps this will reduce expense if you don't plan to keep the furniture. Who owns the furniture? If it's owned by your parents, you can put it into storage and them charge them the costs (another expense to deduct from your mother's deposit).

http://www.landlordzone.co.uk/uncollected_goods.htm.

You can also seek the outstanding rent from him if you get a PO by taking out a small claims court action but this might be more good money thrown after bad as it's near impossible to get money out someone on benefits. But again, the arrears and the legal fees are another expense to share with your mother the 'co-investor' in the property, reducing her share of the original investment.

cuffey

I think you are absolutely correct BigAunty.

I just don't know what the Court is playing at - but the solicitor has written (more cost) and supplied the evidence of Father's lies. If we accept the leaving date as the end of May, it means that we have 'wasted' several months of the 6 months free of council tax for renovation. We might also be at risk of falling foul of the Eviction Act 1977 apparently.

We will have to decide on contents when we get access. If he has left then we don't know his forwarding address so we can't tell him where his stuff is if we put it in storage! Although - if he had moved, he must have received the notice from the court via re-directed post so it would be interesting to know if that is still in operation.

We are in touch with one neighbour, and Father was certainly still accessing the property during June and up to about 10th July.

He has not paid any rent since his March payment. So even if he believes he left in May he owes April and May's payments.

The council tax issue was very straightforward when I spoke to them. If he's not surrendered the tenancy he's liable for the tax until we get the Possession order according to the woman I spoke to. He's clearly lied to them too. I emailed them a copy of the letter he did send to us on 4th June, and they simply said - fine, they would shut the account in my name and pursue him for the tax until the order was granted, and could I just keep them informed.

At the moment I am dealing with one thing at a time. When I look back at how far I've come with dealing with my affairs so far I feel quite proud that I've got this far. I can see a little light at the end of the tunnel - but even when I get possession, there will be the renovation, sale, and then we can start to think about 'negotiating'.

In a further development - my mother has now said she has a document of some sort, wants to discuss it - but wants a secret settlement without other members of the family or anyone else knowing about it.

I have asked what document she has, and she claims to not know where it is at the moment. I've simply asked her to send me a copy if she finds it.

Reading between the lines I think what she really means is - give me cash but don't tell the Benefits people.

How interested would they really be in practice? I've lost faith in the 'authorities' after this episode with the Court.

RAS

I would advise mum that you cannot make any payments to her until you obtain the document to which she refers. You might also tell her that her ex is running up large legal costs that will have to be paid from the sale before you can consider what payments can be made to her. Explain that unless he surrenders the keys and the tenancy properly, you cannot enter the property or even cosnder refurbishment.

Also make sure that you make a single payment to her and her alone, preferably from the solicitor doing the sale by BACS or CHAPS transfer. Then it is all above board from your point of view.

And remind her that there will be a Capital gains liability.

cuffey

Thanks RAS.

I am not inclined to contact her further at the moment. I have asked her to forward what she has several times now both at the start of this process, and now she's admitted at last to having something.

I can enter the property once I get the possession order or course, and I 'm avoiding letting her think that I need to get her to ask him for anything.

BigAunty

cuffey wrote: »

We will have to decide on contents when we get access. If he has left then we don't know his forwarding address so we can't tell him where his stuff is if we put it in storage! Although - if he had moved, he must have received the notice from the court via re-directed post so it would be interesting to know if that is still in operation.

I guess you'll find out if it is still in operation if you access the property and determine he has left belongings and then you send a letter to him at your flat to tell him to collect it from storage by x date and see if it is delivered there or not. Obviously, if it's not delivered, then it's probably been sent on to his new address.

cuffey wrote: »

He has not paid any rent since his March payment. So even if he believes he left in May he owes April and May's payments.

He'll also owe June, July, and right up to the date of the possession order, perhaps, just that it could be a waste of time and money to pursue the rent arrears. What are you planning to do about this? Did the arrears form part of the eviction proceedings?

If he took over a new property, then he'll have applied for housing benefit to be paid there from the moment he moved in. Obviously, you won't be privvy to this information but the local council will know (they just won't tell you).

cuffey wrote: »

In a further development - my mother has now said she has a document of some sort, wants to discuss it - but wants a secret settlement without other members of the family or anyone else knowing about it.

I have asked what document she has, and she claims to not know where it is at the moment. I've simply asked her to send me a copy if she finds it.

Reading between the lines I think what she really means is - give me cash but don't tell the Benefits people.

How interested would they really be in practice? I've lost faith in the 'authorities' after this episode with the Court.

Ah, secret documents yet to be found! Secrets to be kept from other family members.

I (and probably you) never thought the intrigue, pressure and mind games would stop from your parents.

It's clear your mother would seek a way to extract her investment back without being done for benefit fraud (criminal offence). Also, perhaps cover the possible false application for social housing (civil offence, breach of contract, don't know if/how the council would treat someone who lied on an application perhaps claiming to be broke and homeless).

You've basically got her over a barrel because she needs to get you to cooperate with her fraud at a time when you are severely hacked off with her behaviour - love the way she is not deterred by the fact that you are highly disincentivised from handing over the full sum in a way that makes you pick up a tab for all the expenses and makes her immune from investigation/prosecution.

The benefit authorities would definately investigate to determine if it was fraud or deprivation of capital, though of course, they are severely under resourced so you'd have to give clear and full information if you wanted to report her.

Not sure why the slow and poor service from the court has put you off.

cuffey

As I don't want any contact with father I am not interested in pursuing him for the rent. I will use it if he continues to consider he's entitled to any of the cash when I sell. The property will be in a state I imagine as I can't imagine he's sorted it out from when he was living in it. I suppose I could send him a bill for the repairs and renovation!! But really I don't want anything to do with him. I want all this - and him - off my back.

No I shouldn't be put off, I suppose just been disappointed by the way this Court thing has gone even though I've tried to do things the right way. I thought it would be a straightforward paper exercise.

Yorkie1

There is a light at the end of the tunnel and the court should, I hope, take a dim view of having the wool pulled over its eyes (technically he's committed the criminal offence of doing an act tending and intending to pervert the course of justice by lying to the court).

Keep up the persistence, don't be drawn into anything dodgy with your mother, and hang on in there!

BigAunty

cuffey wrote: »

... The property will be in a state I imagine as I can't imagine he's sorted it out from when he was living in it. I suppose I could send him a bill for the repairs and renovation!! ...

When was the S21 or S8 served to your father and the notice expired? It seems to be ages ago and it's still not been properly scheduled as a court case yet?

Not really - without a signed inventory/schedule of condition, you'd be unable to prove to a court that he was responsible for any damage.

Your situation is an ideal example of why posters on this board recommend that family members don't invest in property businesses together or rent properties to friends/relatives.

Basically the informality encourages a lack of rigour in the process and minor tenancy disputes can wreck relationships. We say to landlords who want to rent out their property to a relative - do you fancy evicting them because one day you may have to?

cuffey

End of March S21 was served, so 2 months expired end of May. 3 weeks this Friday since the letter from the Court received to say did I still want to go ahead as they had his letter saying he'd left (BIG FAT LIE!!!!). Suspect it's now gone back to the bottom of the heap. Very frustrating. I have a horrible feeling this will result in a hearing or something.

DVardysShadow

cuffey wrote: »

End of March S21 was served, so 2 months expired end of May. 3 weeks this Friday since the letter from the Court received to say did I still want to go ahead as they had his letter saying he'd left (BIG FAT LIE!!!!). Suspect it's now gone back to the bottom of the heap. Very frustrating. I have a horrible feeling this will result in a hearing or something.

As the court are asking the answer is yes - and you should introduce into the evidence his letter dated June stating he has not started looking. Remind them it is the accelerated procedure and ask for the court date to be ASAP.

Above all else you need that court order to remove all ambiguity and to allow you to walk in to the premises without being legally wrong footed.