Excluded occupier - preparing for the worst

theartfullodger

artyboy said:

No mortgage, what part of '"own outright" from my OP wasn't clear? CGT?? - you have an interesting style Artful but sometimes I do wonder what planet you are posting from. Where does CGT come into anything here? They are selling their principal residence to move into their second property.

Anyway, R has visited the property numerous times and especially over the past few months where they have incrementally been moving their belongings in! I think there have been some overnight stays as well.

i don't think this guy is a chancer, more someone that is poor at planning and was mentally putting off the day when they would need to leave. I'm more concerned he will say he has nowhere to go and try emotional blackmail, rather than us turn up to find him barricaded inside!

Anyway, we shall see what transpires...

Thank for your kind words.  See other's comments regarding the matter.

Best wishes to all.

Grumpy_chap

Seems like an AST may have been created.  Without any of the formalities in place, thus making eviction very difficult.  
The "rent" may have been "in kind" - providing security for the vacant property.
In whose name are the bills and Council Tax?

At some point, this second property will be sold and CGT will apply for the portion of value increase from purchase until it becomes the primary residence.

A very confusing situation, one that the owner probably needs to resolve with proper legal advice, or the builder simply goes by agreement...

RHemmings

doodling said:

Hi,

To be honest, if R has been gradually moving in without objection from the current occupier then it is probably best that they continue to do so.  The longer that R lives there without objection, the harder it will be for the current occupier to claim illegal eviction or similar.

Whether R can also cause the occupier to move out is a bit of a question, but at least they will have somewhere to live.

This might be a case where it is better to adopt a relaxed approach and support the current occupier in moving out rather than to attempt to be forceful and get bogged down in a legal minefield.

Assuming that the current occupier has an AST, then does the landlord moving in make the occupant a lodger? It seems to me that the occupier would then have the right to exclude the owner from the property. How and when would this be lost by the owner moving in? Can the owner move in, but the tenant (assuming AST) kick them out again? I find it difficult to believe that an AST could disappear in that way. 

This all seems incredibly complicated to me, and I find it difficult to believe that it can be solved without the direct assistance of a legal professional. And, most likely, time and money. 

Offering the tenant £££ to move out, as above, sounds a solid idea to me. Unless the council tells them: no. 

theartfullodger

Nope, if occupier has AST then owner/landlord/anyone else moving in does not change his status.  Indeed if, as in this case, occupier has a whole property AST the owner/landlord (can be different people..) has no right to move in & IMHO occupier/tenant is within their rights to wait until they (owner/landlord) go out then change locks thus excluding owner/landlord.

But (assuming England) landlord has right to inspect property after giving AT LEAST 24 notice (from service on tenant, not from when sent) in writing of inspection at reasonable times.  Inspection is only to check place is okay for tenant, not for ANYTHING else .  (Amazing how many agents or landlords appear unaware if this: 'sfunny that)

Artful: Landlord since 2000.

Best wishes to all.

Grumpy_chap

Where has the OP's relative been living while the house they plan to move into was refurbished and then occupied by the builder for a couple of years?
Is there another property owned by the OP's relative?
If so, I wonder whether the OP's relative could offer the builder a proper AST on the current property where the OP's relative is living, then the OP's relative can move into the property where the builder is currently.  Then, after minimum time has passed, serve notice on the builder to vacate the alternative property.

ThisIsWeird

artyboy said:

No mortgage, what part of '"own outright" from my OP wasn't clear? CGT?? - you have an interesting style Artful but sometimes I do wonder what planet you are posting from. Where does CGT come into anything here? They are selling their principal residence to move into their second property.

Anyway, R has visited the property numerous times and especially over the past few months where they have incrementally been moving their belongings in! I think there have been some overnight stays as well.

i don't think this guy is a chancer, more someone that is poor at planning and was mentally putting off the day when they would need to leave. I'm more concerned he will say he has nowhere to go and try emotional blackmail, rather than us turn up to find him barricaded inside!

Anyway, we shall see what transpires...

Everything you've added here seems to be in the 'helpful to your R's situation' category.
Assuming that all the bills, CT etc, are in your R's name, and given that he's visited/potentially stayed over at times, it seems to me that the builder would struggle very hard to claim he's a 'tenant' in any form. He should certainly be referred to as a 'lodger' at all times. 
Your R can - and should - move in as soon as it suits him. Certainly get a bedroom set up, clothes in wardrobe, cook, stay over more regularly, that sort of stuff. He should act 'matter of fact' about all this, as it always was - and will be - the expected outcome. Your R using the house more regularly, and then permanently, was always going to happen; "I let you lodge in my house whilst it suited me, but now I want to be on my own, that's all."
If the builder doesn't have alternative accommodation, then it can be explained to him that if your R gives him written notice to leave - which he needs to abide by - it will act in his favour. 
Any agro from the builder, then note it down (even have a recorder running if this is anticipated), call the local Bobby if serious enough, and also explain that no notice is now required; "I want you to leave now".

Presumably the builder works, so the option of changing the locks whilst he's out always remains - either after the deadline has elapsed, or sooner if there's difficult behaviour.

No discussion, no argument.

That is my understanding. If there's any grey area as to his actual 'status', it'll surely be much more grey on his side; just about everything here suggests 'lodger', I think the only exception being that your R has been absent for much of the time. But, since he has two homes, that's entirely his right. The builder isn't recorded anywhere to do with any bills or CT, as he would be as a tenant.

doodling

Hi,

For the avoidance of doubt, my suggestion was a practical way of dealing with the situation where it appears that someone is willing to move out but just a bit slow and disorganised in doing so.

The owner moving in doesn't reduce the rights of the current occupier but if the current occupier is receptive to the owner moving in then it would be difficult to claim an illegal eviction (which is the most serious threat to the owner here as it is a criminal offence).

The owner moving in doesn't prevent the current occupier excluding them at some point in the future if that occupier does in fact have an AST.

Obviously if the current occupier is keen to enforce their rights to the greatest possible extent then it is unlikely that the owner will be moving in any time soon but that doesn't appear to be the case here.

Unless I am reading the OP's posts wrong, and providing that the owner acts reasonably (which probably doesn't include saying "I'm moving in, you have a day to move out") then this doesnt feel like a situation that will be resolved by reference to housing law.

FreeBear

ThisIsWeird said:

artyboy said:

No mortgage, what part of '"own outright" from my OP wasn't clear? CGT?? - you have an interesting style Artful but sometimes I do wonder what planet you are posting from. Where does CGT come into anything here? They are selling their principal residence to move into their second property.

Anyway, R has visited the property numerous times and especially over the past few months where they have incrementally been moving their belongings in! I think there have been some overnight stays as well.

i don't think this guy is a chancer, more someone that is poor at planning and was mentally putting off the day when they would need to leave. I'm more concerned he will say he has nowhere to go and try emotional blackmail, rather than us turn up to find him barricaded inside!

Anyway, we shall see what transpires...

Everything you've added seems to be in the 'helpful to your R's situation' category.
Assuming that all the bills, CT etc, are in your R's name, and given that he's visited/potentially stayed over at times, it seems to me that the builder would struggle very hard to claim he's a 'tenant' in any form. He should certainly be referred to as a 'lodger' at all times.

"Property Guardian" is an alternative to being a lodger - The former is primarily there to keep an eye on the place and make sure nothing untoward happens.

theartfullodger

FreeBear said:

ThisIsWeird said:

artyboy said:

No mortgage, what part of '"own outright" from my OP wasn't clear? CGT?? - you have an interesting style Artful but sometimes I do wonder what planet you are posting from. Where does CGT come into anything here? They are selling their principal residence to move into their second property.

Anyway, R has visited the property numerous times and especially over the past few months where they have incrementally been moving their belongings in! I think there have been some overnight stays as well.

i don't think this guy is a chancer, more someone that is poor at planning and was mentally putting off the day when they would need to leave. I'm more concerned he will say he has nowhere to go and try emotional blackmail, rather than us turn up to find him barricaded inside!

Anyway, we shall see what transpires...

Everything you've added seems to be in the 'helpful to your R's situation' category.
Assuming that all the bills, CT etc, are in your R's name, and given that he's visited/potentially stayed over at times, it seems to me that the builder would struggle very hard to claim he's a 'tenant' in any form. He should certainly be referred to as a 'lodger' at all times.

"Property Guardian" is an alternative to being a lodger - The former is primarily there to keep an eye on the place and make sure nothing untoward happens.

interesting stuff of shelter website regarding guardians, often found to be normal tenants also, test cases etc 

ThisIsWeird

Interesting angle.
If this was a 'tenancy', eg AST, surely the 'tenant' would be named and paying for the CT and energy bills?

A quick look at 'property guardians' suggests they have more similarities to 'tenancies' than they do 'lodger'. Eg, secured deposits and all that malarkey. And, they stay in the property with the owner being absent.
I doubt that R has even taken a deposit. It could well even have been his intention to move in sooner/ stay over far more often than he did, always considering it as a near equivalent home to his other one. 
Lodger lodger lodger. And a bad-paying one at that...