Evicting a family member

_Penny_Dreadful

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.

Unless the OP gave notice in writing to the sister before the start of the tenancy that ground 1 might be used then it’s not necessarily a mandatory ground. In the absence of notice the court would need to make a call on whether it’s just and equitable to evict on ground 1. Given the circumstances the court might grant a possession order but it’s not certain. 

From schedule 2 of the Housing Act 1988…

Not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground or the court is of the opinion that it is just and equitable to dispense with the requirement of notice…

ThisIsWeird

FreeBear said:

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.

Given the circumstances that we are aware of, you'd agree that the sis was initially unquestionably a 'lodger'? FluffKit, the owner of the flat, paid the CT, energy, and all other bills? Her sis paid her a well-under-a-tenancy sum for a room, and seemingly under a lodger amount too. 

That sum continued after FluffKit (had to) moved out, and was clearly below the cost of what it would take to maintain that household as a rental. If this had been a 'tenancy rental', it would have been the most financially ill-conceived of its type seen on this forum. Possibly.

FluffKit then spent an enforced amount of time, of unforeseen duration, away from her flat to look after her mum, but everything else remained the same.
At what point did the sis become a 'tenant'? How many weeks or months or years does this transmogrification take? 
When FluffKit's intention was always that the status quo would continue whilst she was away, and she would and could have returned at any point over this time without giving any notice to her sis - and would have done so had her mum had sadly passed away sooner - what rule would the sis be able to successfully use to claim she had at some point become a 'tenant'?
If FluffKit's mum had passed away after only 6 months, would sis be a tenant? One year? A yearandahalf?
If there is any legal suggestion that sis has become a 'tenant' under these unfortunate circumstances, then the rules are bunkum.
To turn this on its head; what 'should' have FluffKit done, and at what stage, in order to 'prevent' her sis becoming a tenant? Evict her? Stayed overnight once a month, and finds a means of recording this - a selfie with a copy of that day's Guardian? Write up a contract - for her lodging sis? Surely, nothing.

RAS

We'd all like what is fair to be what happens, but sis has already indicated that she doesn't want fair. She just wants status quo.

The OP needs to be very careful about correctly identifying her sister's status. She needs advice from a very good solicitor with tenancy expertise, who can advise on whether sis is a lodger, excluded occupier or tenant and can check that the OP has complied with all the requirement needed to meet the legal regulations. Someone who can look at the documents and exchanges between the siblings etc.

I'm recalling a guy who married a woman from overseas, who I think he met through business. They decided to set up business in her country of origin, leaving her daughter in his property to look after it. The marriage broke down, the woman moved back in with daughter and they claimed full tenancy rights, successfully. 

ThisIsWeird

RAS said:

We'd all like what is fair to be what happens, but sis has already indicated that she doesn't want fair. She just wants status quo.
The OP needs to be very careful about correctly identifying her sister's status. She needs advice from a very good solicitor with tenancy expertise, who can advise on whether sis is a lodger, excluded occupier or tenant and can check that the OP has complied with all the requirement needed to meet the legal regulations. Someone who can look at the documents and exchanges between the siblings etc.
I'm recalling a guy who married a woman from overseas, who I think he met through business. They decided to set up business in her country of origin, leaving her daughter in his property to look after it. The marriage broke down, the woman moved back in with daughter and they claimed full tenancy rights, successfully. 

If the sis is 'happy' with the status quo, then Fluffy should move back in and resume this. Her in her flat, and sis as a lodger.

Then take it from there.

Sis has, I think, only made it clear she doesn't want to move out, but hasn't said to Fluffy that she can't move back in. I think she still acknowledges that the flat is Fluffy's, in every sense. Edit: looking at the OP, sis is trying to ignore Fluffy.

Fluffy, do you have any other family member who could help you? A good friend - ideally male...?

I think you need to 'reclaim' your flat in some physical sense, before sis does starts getting advice that could complicate matters. Is your parent's house and your flat far apart? Do you know anyone who'd like to spend a few days in your flat - is it in an 'interesting' area, for example? Then offer them free use of your room there for a nice break, if they are prepared to suffer the awkwardness. This is your flat, for you to use as you wish. Letting folk stay over is a nice use. Sis needs to know who has control of this flat.

theartfullodger

She'll still be an AST tenant

YoungBlueEyes

This might be me showing my ignorance here, but would there be any harm in evicting sis as if she is a tenant, whether she's a lodger or not? Supply the gas safe etc paperwork and then issue an S21 or whatever? Would a properly executed S21 still work if the sis is actually a lodger, is what I'm asking?

How can the OP go from where she is now, to legally having her flat back? 

_Penny_Dreadful

YoungBlueEyes said:

This might be me showing my ignorance here, but would there be any harm in evicting sis as if she is a tenant, whether she's a lodger or not? Supply the gas safe etc paperwork and then issue an S21 or whatever? Would a properly executed S21 still work if the sis is actually a lodger, is what I'm asking?

How can the OP go from where she is now, to legally having her flat back? 

One risk would be that by issuing a Section 21 it would then be even more difficult to backtrack and claim the sister was an excluded occupier. Secondly, unless the sister was issued a valid GSC for the start of the tenancy it might never be possible to issue a valid Section 21. 

The sister moving out voluntarily or buying the flat from the OP are the two outcomes that will avoid court. 

_Penny_Dreadful

@ThisIsWeird the sister could use Schedule 1 of the Housing Act 1988 which defines “Resident Landlord” to argue that she is a tenant with an AST as the OP does not meet the definition of a resident landlord. 

Bookworm105

_Penny_Dreadful said:

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. 

re CGT you are allowed a "period of absence" for any reason of up to 3 years duration provided the property you are absent from was occupied as main / only residence both before and after the absence.

provided OP realistically moves back in then 3 of the 4 years so far absent could be exempt from CGT

however as you rightly point out, OP will still be liable for some CGT given it has not been their main home for >4 years, no matter where their post or tax registrations are sent

RAS

It's not clear if the OP actually has access to the house?

There's two issues:

Because the OP let her sister move and then moved to care for parents, it is almost inevitable that one or more of the documents legally required rent out a property are not currently in place. Because that's not how the OP viewed the relationship. The OP can remedy this but it takes time and money. And until those are in place, they can't issue an S21.  And sis can try and frustrate the S21 with repair issues, failing to facilitate gas and electrical checks etc.

An S21 doesn't require sister to leave, merely notifies her that the OP could start legal action. That'll require more time and money. It'll very much be a case of which sibling blinks first and did may hope it's the OP because they've been a push over previously.