Evicting a family member

theartfullodger

FreeBear said:

Olinda99 said: if you want to evict a you should make sure that you have everything in order and issue a section 21 before Labour ban them

And/or use Section 8, grounds 1 - Being a mandatory reason, it has a better chance of succeeding.

If any disrepair, easy to argue down "arrears-.

Been declaring ALL rent to HMRC?

Baldytyke88

Olinda99 said:

move back in asap ! 

Do the above or get an eviction specialist. If you move back in, your sister would be considered a lodger, so easier to evict.

But it won't be easy for you. You need to ascertain where she is going to live.

theartfullodger

Baldytyke88 said:

Olinda99 said:

move back in asap ! 

Do the above or get an eviction specialist. If you move back in, your sister would be considered a lodger, so easier to evict.

But it won't be easy for you. You need to ascertain where she is going to live.

No, having been lodger she remains lodger .

Unless she genuinely moves out for a bit, then signs/agrees new tenancy then moves in. In England tenancies don't need to be in writing, bonkers I know..

BarelySentientAI

Can someone really be a lodger in a property that the owner hasn't lived in for four years?

Is that something special to do with the occupier being related to the owner?

propertyrental

I'm amazed how many people here are saying sis is a lodger.

OK - OP pays utilities and council tax, and has most post (except GP) at the property, but that does not alter the reality that for 4 years she has been clearly living elsewhere (parents' house).

Sister has had 'exclusive use' of the property (and has been paying rent). If OP were to try to 'move back in' as suggested, this could easily be argued as an attempt at an illegal eviction (criminal, not civil matter). As would any direct attempt to evict.

Op should consider her sister as a tenant and

* use S21 process to evict - having first checked any S21 would be valid (see link below) and/or

* increase rent via S13 notice, and then, if arrears arise, evict using S8 G8

* try to reach agreement for sis to leave by 'mutual surrender' eg by helping her with onward deposit or other payment(s)

https://nearlylegal.co.uk/section-21-flowchart/

Kim_13

BarelySentientAI said:

Can someone really be a lodger in a property that the owner hasn't lived in for four years?

Is that something special to do with the occupier being related to the owner?

It depends on what payments the sister has been making. Clearly someone can not be a tenant but have permission to stay, as such a person is specifically provided for in the hierarchy of liability for CT. If the money she paid was towards bills, she isn’t a tenant. If it was rent, then it became a tenancy whether OP intended to create one when she allowed the sister to move in during her time of need or not.

The sister may claim she is a tenant even if she isn’t, as relations have broken down. That the bills are still in OPs name might help their case, as a tenant would usually have their own accounts. It may be for a court to determine whether she is a tenant or not, but if you have gone down the LL paperwork route already, then you’ve treated it as a tenancy so can’t claim that there isn’t one.

If OP moves back in before selling, then it will become her primary residence and no CGT will be due. Better to physically do this rather than try to argue that it remained the primary residence anyway given the unfortunate circumstances which saw her staying elsewhere.

Will there be anything due to the sister from the estate which could help her move on?

ThisIsWeird

BarelySentientAI said:

Can someone really be a lodger in a property that the owner hasn't lived in for four years?

Is that something special to do with the occupier being related to the owner?

Undoubtedly something of a grey area. Quite likely will be tested for its veracity if challenged.

If it comes down to genuine intent - as it appears to be the case here - then I'd hope the OP would be on pretty firm ground.

It certainly strikes me as unfair that a home-owner, who rents out a room to a lodger, and who then finds themselves absent from that house due to circumstances that they cannot reasonably control, to suddenly find their 'lodger' has magically turned into a 'tenant', when nothing else has actually changed!

The facts would appear to be; the OP took her sis' in as a very obvious lodger in order to help her out, and on very favourable terms, certainly not to make money. Demands for care by her (their) mum, when no other family member would help, caused her to move in with her mum, but I think it's very clear that at no point did FluffKit consider she was 'leaving' her own flat in any tangible sense, and certainly not as a rental property. She could, very clearly, have called back in to her own flat at any point, day or night, without having to give notice to anyone. I think that might be a key point.

If FluffKit could bear it - and do so with a big smile in order to restore, as closely as possible, the previous circumstances - the best thing would be to move back in and just continue as before, whilst the issue of their mum's house is sorted. She can come and go as she wishes - it's her flat. Stay there overnight, just when she chooses to. Like normal folk wot own their own property!

The required outcome would then likely become clear; she can continue with her sis as a lodger, or they will have the sit-down chat to discuss that it just isn't a workable option any more.

I find it utterly galling when a clearly well-intentioned move is taken advantage of, especially by a family member. I hope FluffKit can research all the parameters that dictate what a 'lodger' is, and what constitutes a 'tenant', and fit the circumstances here firmly around this.

Kim_13

theartfullodger said:

FreeBear said:

Olinda99 said: if you want to evict a you should make sure that you have everything in order and issue a section 21 before Labour ban them

And/or use Section 8, grounds 1 - Being a mandatory reason, it has a better chance of succeeding.

If any disrepair, easy to argue down "arrears-.

Been declaring ALL rent to HMRC?

Rent would need to be declared, housekeeping towards the bills wouldn’t. As OP has been paying more than the sister, it may be the latter (as she would still have her share of the bills to pay in addition to the bills which come to her as a property owner.)

Maybe if the sister had done her share of the care, OP wouldn’t have had to leave her property 24/7. 

The OP obviously intended to return (she cannot live in the house forever unless it was left solely to her, and even if it had been, there was no guarantee she would inherit it as the day may have come when specialist care in a home was needed and the house would have to have been sold to fund that.) An intention to return is significant in CT, meaning that to remove the SPD and the bill remain in the OPs name was the correct course of action.

FreeBear

propertyrental said: I'm amazed how many people here are saying sis is a lodger.

Sister has had 'exclusive use' of the property (and has been paying rent). If OP were to try to 'move back in' as suggested, this could easily be argued as an attempt at an illegal eviction (criminal, not civil matter). As would any direct attempt to evict.

I'm inclined to agree that Sis is now a tenant rather than just a lodger. Best to seek paid for advice from a qualified solicitor well versed in such issues. Then follow their advice on the best route to take.

_Penny_Dreadful

Kim_13 said:

BarelySentientAI said:

Can someone really be a lodger in a property that the owner hasn't lived in for four years?

Is that something special to do with the occupier being related to the owner?

It depends on what payments the sister has been making. Clearly someone can not be a tenant but have permission to stay, as such a person is specifically provided for in the hierarchy of liability for CT. If the money she paid was towards bills, she isn’t a tenant. If it was rent, then it became a tenancy whether OP intended to create one when she allowed the sister to move in during her time of need or not.

The sister may claim she is a tenant even if she isn’t, as relations have broken down. That the bills are still in OPs name might help their case, as a tenant would usually have their own accounts. It may be for a court to determine whether she is a tenant or not, but if you have gone down the LL paperwork route already, then you’ve treated it as a tenancy so can’t claim that there isn’t one.

If OP moves back in before selling, then it will become her primary residence and no CGT will be due. Better to physically do this rather than try to argue that it remained the primary residence anyway given the unfortunate circumstances which saw her staying elsewhere.

Will there be anything due to the sister from the estate which could help her move on?

There is so much wrong with this post. We know the sister has been paying rent because the OP has told us so. Had the sister not been charged any rent at all she would likely have been an excluded occupier but as rent has been paid the sister is more than likely a tenant with an AST. Who is named on the utility bills and CT is a red herring. 

You also misunderstand how CGT works. A person is only entitled to full PRR when selling a property that has been their only or main home during the whole length of ownership. You can’t circumvent this by moving back in just before you sell.