Would a Section 21 be required in these circumstances?

gettingtheresometime

Under the terms of my FIL's will his partner could live his house so long as certain conditions were adhered to.

It looks like the property is being rented out to a member of her family which means, theoretically, the house can be sold.
However would a Section 21 be required to remove the 'tenant' (I say 'tenant' as we have no idea whether there is a formal tenancy agreement or whether it's just done on a handshake) ?

A_Lert

Whether or not there is a tenancy depends on the facts about who is occupying the house and whether rent is being paid. Not on whether there's a written agreement or what it says if there is one.

In your situation, there will also be the question of whether FIL's partner had the legal right to rent the house out at all.

In your case I think there are three likely scenarios.

One, the occupier is a tenant. In this case they cannot be evicted without a court order. Alternatively they may leave voluntarily (possibly with a monetary incentive), or the house could be sold with a sitting tenant.

Two, the occupier is an excluded occupier. This could occur if FIL's partner still lives there, making the other occupiers lodgers or guests. Or if the occupier is living there rent free. In that case they can be evicted with reasonable notice without going through the courts. However court proceedings may be necessary if there's a dispute over the occupier's status.

Three, FIL's partner had no right to rent the house out. In this case the occupier is regarded as a trespasser or squatter. Again, it should be possible to remove them without going through the courts.

AdrianC

Yes, the tenant's landlord would need to issue them with a valid s21.

greatcrested

A_Lert has summed up nicely.

Who is/are FIL's Executer(s)? If you (or whoever) cannot find a written tenancy agreement, examine FIL's bank accounts. It should be obvious if rent is being paid. If it is, then A_Lert's options 1) or 2) apply, depending if the occupant has 'exclusive occupation' of the property (option 1) or is sharing with the landlord (FIL or now FIL's partner) and is thus a 'lodger', known legally as an 'excluded occupier' ie excluded from the protections tenants receive from the Housing Act.

(As A_Lert says, a written contract is not needed for a tenancy to exist).

gettingtheresometime

A_Lert said:

Whether or not there is a tenancy depends on the facts about who is occupying the house and whether rent is being paid. Not on whether there's a written agreement or what it says if there is one.

In your situation, there will also be the question of whether FIL's partner had the legal right to rent the house out at all.

In your case I think there are three likely scenarios.

One, the occupier is a tenant. In this case they cannot be evicted without a court order. Alternatively they may leave voluntarily (possibly with a monetary incentive), or the house could be sold with a sitting tenant.

Two, the occupier is an excluded occupier. This could occur if FIL's partner still lives there, making the other occupiers lodgers or guests. Or if the occupier is living there rent free. In that case they can be evicted with reasonable notice without going through the courts. However court proceedings may be necessary if there's a dispute over the occupier's status.

Three, FIL's partner had no right to rent the house out. In this case the occupier is regarded as a trespasser or squatter. Again, it should be possible to remove them without going through the courts.

Thank you A_Lert - we think it's a family member (on the partner's side) that living/renting the property so don't know if there's a formal arrangement with the partner, whether it's just a case of the member handing over some cash every month or whether, though unlikely, they are living there rent free as again we have been told that the partner has moved out and is living elsewhere.
Either way, under the terms of the will, what appears to be happening means the house can be sold 

greatcrested said:

A_Lert has summed up nicely.

Who is/are FIL's Executer(s)? If you (or whoever) cannot find a written tenancy agreement, examine FIL's bank accounts. It should be obvious if rent is being paid. If it is, then A_Lert's options 1) or 2) apply, depending if the occupant has 'exclusive occupation' of the property (option 1) or is sharing with the landlord (FIL or now FIL's partner) and is thus a 'lodger', known legally as an 'excluded occupier' ie excluded from the protections tenants receive from the Housing Act.

(As A_Lert says, a written contract is not needed for a tenancy to exist).

The executer's are a firm of (imo useless) solicitors ...in the years since my FIL's death there has been no communication from them (although I guess in fairness there has been no real reason for them to) but the important point is that the will clearly stated that only the partner was to reside there (there were other conditions which meant the house could be sold but this is the relevant one).

newsgroupmonkey_

I'm not even going to pretend to be able to offer any legal advice or otherwise, but is this not one of those that could get proper ugly in court with a lot of legal expense for something you might not even win?

I mean, whilst you've "heard" that the FIL's partner isn't living there, if they are still paying council tax, the bills, are on the electoral roll. Are they staying there from time-to-time, this is going to be your word against theirs. They might have another partner who they stay with several times a week. It doesn't mean they're not entitled to keep their own place (and have a lodger).

My Grandad (remarried) was in a similar position, interestingly enough, but on the other foot. As terms of the will, he wasn't allowed to have a partner "stay over" more than X many times in the house they shared. The widow's family took it in turns apparently to count the number of nights his new partner stayed over (a couple of years after she had passed) and promptly got him evicted.

Clearly, we don't know the terms of the will.....

greatcrested

So this is 'some years'? I assume the Estate has been wound up?

Were you/your partner Beneficiaries of the will in any way? If so, you are entitled to see the Probate accounts that the Executer should have kept. These should show what income the Estate received during the probate period eg any rent receipts.

If not provided, write to the Executer and ask for them.

Whether rent is being paid is crucial to your question as to whether a S21 is needed. Is this person a tenant or not?

A 'formal agreement' is not relevant, neither written nor verbal. What matters is whether

* exclusive occupation of accommodation is provided and

* in return, rent is paid either in cash or kind (eg the tenant 'pays' by redecorating, building an extension, paying the mortgage, giving the owner a car in return for the accommodation, or free holidays in their Bahamas beachside 2nd home).

gettingtheresometime

greatcrested said:

So this is 'some years'? I assume the Estate has been wound up?

Were you/your partner Beneficiaries of the will in any way? If so, you are entitled to see the Probate accounts that the Executer should have kept. These should show what income the Estate received during the probate period eg any rent receipts.

If not provided, write to the Executer and ask for them.

Whether rent is being paid is crucial to your question as to whether a S21 is needed. Is this person a tenant or not?

A 'formal agreement' is not relevant, neither written nor verbal. What matters is whether

* exclusive occupation of accommodation is provided and

* in return, rent is paid either in cash or kind (eg the tenant 'pays' by redecorating, building an extension, paying the mortgage, giving the owner a car in return for the accommodation, or free holidays in their Bahamas beachside 2nd home).

We're talking 10+ yrs since my FIL died so the estate has been wound up but the property is being held in trust.
The crux of the issue is that the will provides for the partner to stay in the property under certain clear circumstances - none of which allows for lodgers or tenants so the trustees/executors wouldn't be aware of any cash rental payments.
As newsgroupmonkey has alluded to this has the potential for getting very ugly.

AdrianC

Forget executors - they went out the picture when the property was transferred into the trust.

Yes, the trustees can make the decision - but they are almost certainly not the tenant's landlord... So would an s21 issued by them be valid when it came to the possession hearing in - oooh, 2022?
And that's before we get into the question of ongoing familial relationships.