Advice on eviction

BigAunty

I agree that the OPs parents may be classed as an excluded occupier rather than a tenant which in theory means that they can be asked to leave at any point and that ASTs are designed for tenants.

This is what the solictor told another OP in a similar situation (sister refusing to leave a property that the other sisters have inherited).

http://www.forums.moneysavingexpert.com/showthread.php?t=4833315

However, if an excluded occupier then refuses to leave, how can it be enforced? Surely this must be through the courts? otherwise the only other options are for the Police to escort them out and we all know how weak they are at tenant/lodger/landlord law and that they tend to view evictions as civil matters rather than criminal.

According to this link, the OP is simply within her rights to change the locks....However, they do recommend court orders are sought.

http://england.shelter.org.uk/get_advice/eviction/eviction_of_private_tenants/eviction_of_excluded_occupiers

Brallaqueen

I second Jamie11's advice, property professional is the only way to go. However I have a sinking feeling that the piece of paper with 'lifetime tenancy' written on it is going to be a major stumbling block.

jamie11

Brallaqueen wrote: »

I have a sinking feeling that the piece of paper with 'lifetime tenancy' written on it is going to be a major stumbling block.

Me too, although the fact the piece of paper might assume the parents would be paying something for rent, since they haven't paid anything at all I believe that may negate it.

Granariesgirl

Hi Rocky99,

Just posting to say I feel so sorry for you - with the best intentions you tried to help your parents & have been screwed over.

Some advice FWIW:

THIS SITUATION IS NOT YOUR FAULT, so try not to feel guilty about it.

Your priority is your kids, yourself & your husband. Put NOBODY before them, whatever their sad story - not even your parents!

Get your paperwork together now. Every single piece of possible evidence relating to this house story: contracts, correspondence with mortgage company/ bank, contract for sale of house & correspondence with solicitor, bills proving residence in house if relevant (I recall you said you had lived there a while & so it would prove your mortgage was not fraudulent),even emails, texts from parents - ANYTHING however insignificant you may think it. Let the solicitor or legal advisor sort out what is useful.

Write everything down NOW: what happened, when, where, who said what - FACTS, not opinions. Sit down with hubby & do it a little each night until you have a complete chronology of the house story. If you can't remember the exact day, use the week or month. This seems like a waste of time but will be dead useful to refer to when you are being asked questions by various people when this is being sorted out.

DON'T GIVE UP, DON'T DESPAIR!
When the going looks impossible & you lose courage, look at your children & remember you are doing to ensure their future.
:A

Keep us posted on your progress - good luck.

Rocky99

Thank you so much everyone!
I have begun to write a 'statement' of sorts documenting each part of this awful situation. I intend to make an appointment with a local property lawyer tomorrow.

One thing that has just popped into my mind is around the time we were talking about asking the council how we stood for getting them housing allowance I read that we would need some kind of tenancy agreement to show the council. I printed off a bog standard one from the net and we completed and signed it as a 'rolling contract'. When completing the rent part I inserted what the average rental price was for the area/house size. I made it clear that we have not received any of this rent at any point but inserted it to give the council an idea of the property in which they resided.
Could this help?? I've disregarded it due to thinking it meant nothing?? I'm sure I still have a copy

Granariesgirl

Rocky99 wrote: »

I have begun to write a 'statement' of sorts documenting each part of this awful situation. I intend to make an appointment with a local property lawyer tomorrow.

:jYaaay! Go, Team Rocky99!:j
(but remember no emotion, just facts)

Rocky99 wrote: »

One thing that has just popped into my mind is around the time we were talking about asking the council how we stood for getting them housing allowance I read that we would need some kind of tenancy agreement to show the council. I printed off a bog standard one from the net and we completed and signed it as a 'rolling contract'. When completing the rent part I inserted what the average rental price was for the area/house size. I made it clear that we have not received any of this rent at any point but inserted it to give the council an idea of the property in which they resided.
Could this help?? I've disregarded it due to thinking it meant nothing?? I'm sure I still have a copy

YES, yes & double yes with a cherry on top - you go find it, girl! :T
Bet you can find some more docs if you look - it's like looking for money down the back of the sofa, once you find one coin, it always has "friends"!:rotfl:

princeofpounds

Erased my thoughts after reading of the possible complications the OP has alluded to in other threads.

I was concerned about the level of speculation and lack of wisdom in some of the advice, but ultimately I think the best thing is to speak to a lawyer.

On the initial facts G_M was right, as excluded occupiers they had little rights. But side agreements may exist that change things.

BigAunty

Rocky99 wrote: »

One thing that has just popped into my mind is around the time we were talking about asking the council how we stood for getting them housing allowance I read that we would need some kind of tenancy agreement to show the council. I printed off a bog standard one from the net and we completed and signed it as a 'rolling contract'.

If you have a valid, dual signed tenancy agreement, signed by both landlord and tenants, then you may be able to accelerate the eviction via the S8 process as there is a ground there about non-payment of rent. Your housing solicitor should look over this.

Basically, assuming the property is in England/Wales, there are two processes to regain possession of the property, S21 (nicknamed 'no fault' as the landlord doesn't have to prove the grounds) or S8 (which has a list of grounds that a landlord has to prove). If at the time of serving the S8, and at the time of the court case, the tenants owe 2 months rent (if the rental period is monthly), then the judge must award possession back to the landlord.

For tenants in rent arrears, a landlord will often serve both notices as a belt and braces approach in case one fails. However, are you not fairly advanced on the S21 front now?

If your parents approach the local council and apply as homeless when you regain possession of the property, the council *may* decide that they have no obligation to assist them if there are rent arrears, as they will regard them as having made themselves intentionally homeless by not paying rent when they could have. However, as they didn't qualify for HB and presumably could not have afforded local market rent for the property from their state pensions (if that's their only income) perhaps that won't be the case. Also, if they are left with equity after the sale, they have ample money to find their own private rental without needing recourse to the local council.

See the Shelter website's section on homelessness to understand what might happen if the council receive a homeless application from them.

Also, was the property sold to you less than market rates? There are DWP and local council regulations that clamp down on people giving away/selling off cheaply their capital (including properties) and then applying for means tested services or benefits, like care homes, housing benefit, etc. It's known as 'deprivation of capital' or 'deprivation of assets'.

For example, people try to be crafty by gifting their properties to their children but years later, then need care homes and then the local council discover that they have deprived themselves of capital. See the Age uk website to understand more about what could happen if they apply for care homes and benefits and can't account for why they once had an expensive property and now have very little to show for it (granted that they had debts and !!!!ed away their money to keep up with the Jones).

EDIT - obviously the big potential issue is the signed note that you cobbled together, that's why you need legal advice to understand if it is enforceable or not worth the paper it is written on - "The one thing that did happen was my dad hand wrote on a piece of paper that they could live there til death, all four of us signed it, no witnesses present."

BigAunty

Rocky99 wrote: »

I printed off a bog standard one from the net and we completed and signed it as a 'rolling contract'. When completing the rent part I inserted what the average rental price was for the area/house size. I made it clear that we have not received any of this rent at any point but inserted it to give the council an idea of the property in which they resided.

Is that when you then found out that the local council would not pay any housing benefit, due to their prior ownership of the property or because if they sold it to you dirt cheap, they may have been investigated for deprivation of capital, or that if you lived together, they wouldn't have qualified for HB anyway? Once you discovered that they couldn't get HB, did you not then have strong doubts as to whether they could afford to pay any rent given that it would have to come out of their existing income which might only be a modest state pension?

Exactly what do you mean by 'rolling contract'? Is this term written on the contract? How much did you adapt the template that you found? This term is often used colloquially to describe a 'periodic contract' one that rolls on until either the tenant gives one month's notice or the landlord two month's notice, timed with the expiry of the rental period (if the rental period is monthly).

However, this is never set up as an initial contract - it is something that automatically happens when the fixed term AST expires and a new contract is not signed. Once cannot have a periodic contract from the start (well, one can produce a contract in those terms that has no basis in housing law and isn't enforceable).

How did you make clear that you had not received any rent to date? Do you mean you told the council this, separately? Your parents would not qualify for HB for the first 5 years after ending their ownership and then becoming tenants in the property but if they had an entitlement, the chances are that the council would have considered it a contrived tenancy and then turned down their HB application (google the term 'contrived tenancy', also described on the Shelter website).

Look into this 5 year bar for HB - is it possible that they would now qualify for HB? However, I do wonder whether the fact that they hadn't paid any rent to date might disqualify them from HB now under the Contrived Tenancy rules. Why not message a poster who posts regularly on the Benefits forum called 'Housing Benefit Officer' with the basic outline of change of ownership, tenancy contracts, intention to apply for HB to see what they advise are your chances of getting HB now.

Rocky99

Hi
Thank you big Aunty for your time and effort in responding but to be completely honest I feel so far out of my depth with everything.
The tenancy agreement was something we took to the council as I wanted to be prepared on all angles. The council officer we spoke to was told every single detail about this transaction, there was no information held back. Everything you all know, they know.

If there are any parts of this whole situation that appear underhand or wrong on my part I can assure you that is not the case.
As time goes on and the story unravels I am feeling so cross and disappointed with myself for allowing this to have happened!