Evicting a family member

Bookworm105

ThisIsWeird said:

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.

how much you charge is utterly irrelevant in determining if it is a tenancy or a lodging
I agree that a family member contributing to housekeeping (rather than rent) is a different matter, but OP has not been resident for 4 years. That is an undeniable fact, to be a lodger there has to be a resident LL.

in fact, a "non commercial" level of rent and/or letting to family is expressly dealt with in HMRC rules regarding taxation of rental income 
PIM2130 - Deductions: main types of expense: properties not let at a commercial rent - HMRC internal manual - GOV.UK (www.gov.uk)

ThisIsWeird

_Penny_Dreadful said:

@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. 

I guess. It certainly isn't cut and dried - it isn't definitive. Should the sis pursue such a line, then it could well become messy.

In which case, I hope that Fluffy has LegProt.

Each case will rest on its merit - especially, I suspect, the intention or actions of the property owner. Say, one deliberately being absent - no real intention of living there - but trying to avoid 'tenancy' responsibilities by claiming the occupants are still lodgers - for example. That would be pretty obvious, and rightly actionable.

I would hope that Fluffy's situation would be seen as unambiguous; it was certainly never an 'earner', never the intention to rent her place out, never her intention for her to be absent.

There can sometimes be a self-fulfilling legal mess with cases like this, where if the protagonist begins to make enquiries about the situation, allows the other party to be warned of potential action due to the situation being somewhat grey, then the 'issue' is actually created.

A matter-of-fact return to her flat with a jaunty, "I'm back!", immediately puts the other party on the back foot. And the longer this normality continues, the more secure the ground. Or, if this is too awkward, as I mentioned before, make the offer to some friends to 'stay over at my place' for a few days.

This IS her flat. She currently HAS the right to walk back in, without notice. Her sis has NOT claimed she's a 'tenant'. Do not give her the bludy chance to do so!

Turn up - ideally when sis is out - and have a locksmith on speed dial in case she's changed the locks. (Which, of course, if done as a 'tenant' would have been a breach :-)  ) Let sis back in, and continue as before. Set the rules.

Seriously - make this a fait accompli.

Sarahspangles

Family makes this so much more complicated.

I suspect ‘in her head’ you’ve been living for free at your parents for the duration and had a closeness to them that she hasn’t. You haven’t mentioned (in this thread) what she or you stand to inherit, just that you’re currently dealing with the estate, so maybe there’s some perceived inequity or mistrust about what you’re doing coming into play. Maybe she’s depressed, maybe she has given up and wants you to support her now. There may be all sorts of resentment, guilt and entitlement washing around in her head. I’m not saying she’s reasonable, of course.

You certainly need to see a solicitor and I think in your shoes I’d be setting out what you want to do next - when the estate is sorted, do you want to live in this flat? - and exploring whether there’s a route involving mediation to sort this out. Commencing legal action just puts you in different corners and reduces the chance of a relationship going forward.

ThisIsWeird

Bookworm105 said:

how much you charge is utterly irrelevant in determining if it is a tenancy or a lodging
I agree that a family member contributing to housekeeping (rather than rent) is a different matter, but OP has not been resident for 4 years. That is an undeniable fact, to be a lodger there has to be a resident LL.

I can accept you will be technically correct; in a 'lodging' situation, the actual rent paid is irrelevant. In a 'tenancy' situation, the actual amount of rent paid is irrelevant.

In a situation like this, however, which I assume you will acknowledge is not clearly defined but would almost certainly need to be ascertained through a legal process, the fact of the relatively small amount being paid - and under which circumstances - will very likely (imo) have some bearing, and contribute to Fluffy's case?

Or are you saying it is completely irrelevant here?

theartfullodger

If rent is low enough (or high enough) it's not an AST - but if tenancy would be another form (non-AST) of tenancy. It's in Thatcher's 1988act.

fluffy_kittens2024

lizhancock said:

ThisIsWeird said:

fluffy_kittens2024 said:

ThisIsWeird said:

fluffy_kittens2024 said:

Yep everything is still registered there with me, the only thing that’s not is my gp who I registered with near my parents house after a few years into my parents illness. No one else was caring for my parents as they died so I didn’t have much choice.

Everything of yours is still registered to your flat (apart from GP)? Does that include council tax, and energy bills? Broadband?! Who paid for these, and have you been collecting your mail from your flat?

Surely this could make her a lodger and not a tenant?

I’ve been paying for all of these, including the council tax which I removed the single person discount from. Since my mum died I’ve also been paying for direct debits on her property while the probate is being sorted (internet, water etc). She’s been sending me pictures of post I’ve been receiving. 

Ok, surely this is highly significant? You have removed the single person discount, with the obvious implication that your sis moved in with you, to share?

From what you say, you are fully entitled to move back in. How you handle the rest is also under your control.

But - I'm not legally informed.

On that point, do you have Legal Protection included in your house insurance? Oh, and is your flat's house insurance policy a 'normal' domestic type, or 'Landlord'?

Pretty much everything so far points to your sis not being a tenant but a lodger, and that's good news. Hopefully properly informed folk on here can advise further.

Yes sounds like she can be regardded as a lodger, so move back in if you can bear it but I can imagine that will be really hard.  I'm so sorry for what you've been and are going through.  I know you'd rather have your parents but I hope they've left all their money to you and not to her. I no longer speak to my sisters and my Mum's care is one of the reasons, the other is because they are jealous of the house I got after my divorce.  It's so sad and awful when things like this happen but sounds like you are better off without her. I hope you get it sorted. X

Thank you, it's been horrible. Being a sole carer. I'm sorry you've gone through a similar thing x 

ThisIsWeird

I'm sure it's been beyond horrible for both of you.
One thing I've learned relatively late in life is that blood is not, should not, be considered thicker than water.
There are simply good, empathetic, folk - and they deserve all your help and attention - and selfish self-focused folk - who need to be either ignored, or if this can't be done (family...), then kept under control and accepted on your terms (I know what I'm talking about). Within the two lots is a huge spread, of course!
The other thing I've learned is, the worst of the selfish, those who are also manipulative or devious (often considered NPD), operate by taking advantage of the empathetic. They deserve nothing.
Not at all suggesting that this is the situation here, Fluffy, as obviously I haven't a clue, and it sounds as tho' your sis is just finding it hard to cope at the moment, and that's understandable given what she's gone through.
You will have a better understanding of the dynamics.
What I am suggesting, tho', is that the technical practicalities of this situation with your flat needs to be handled dispassionately, so it can hopefully be resolved in a quick, matter-of-fact manner, as it should be. 
If you allow this - through laxity, or by giving notice, or by starting a legal process - to become muddied, allowing your sis to seek advice and for her to put you on the back foot, then you could be in for a most hellish legal and personal time. 
Separate everything that you have been through over the past few years away from the situation with your flat. Do not invite or discuss any conversation about your parents or their estate - this has absolutely no bearing on this matter at all.
Currently the situation, aIui, is; your sis is ignoring you, because she doesn't want you to sell your flat? That's it? She hasn't 'claimed' any 'rights'? In which case, right this moment, nothing has changed on the ground. You just need to go back to how it was. Ideally you in person. 
Matter-of-fact - the status quo has been maintained.
Move in. Make it your home. Put talk of selling aside. Carry on like this for as long as you can. Make it normal. After a few weeks, it will be. 
The moment sis suggests she wishes for things to stay like this on a more permanent basis, you nib it - you will decided what happens; she is just a lodger. Should she become bolshie, you have the ultimate option of packing her bags.

_Penny_Dreadful

ThisIsWeird said:

_Penny_Dreadful said:

@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. 

I guess. It certainly isn't cut and dried - it isn't definitive. Should the sis pursue such a line, then it could well become messy.

Are you saying the legislation is not definitive?

Resident landlords

10(1)A tenancy in respect of which the following conditions are fulfilled—

(a)that the dwelling-house forms part only of a building and, except in a case where the dwelling-house also forms part of a flat, the building is not a purpose-built block of flats; and

(b)that, subject to Part III of this Schedule, the tenancy was granted by an individual who, at the time when the tenancy was granted, occupied as his only or principal home another dwelling-house which,—

(i)in the case mentioned in paragraph (a) above, also forms part of the flat; or

(ii)in any other case, also forms part of the building; and

(c)that, subject to Part III of this Schedule, at all times since the tenancy was granted the interest of the landlord under the tenancy has belonged to an individual who, at the time he owned that interest, occupied as his only or principal home another dwelling-house which,—

(i)in the case mentioned in paragraph (a) above, also formed part of the flat; or

(ii)in any other case, also formed part of the building; and

(d)that the tenancy is not one which is excluded from this sub-paragraph by sub-paragraph (3) below.

(2)If a tenancy was granted by two or more persons jointly, the reference in sub-paragraph (1)(b) above to an individual is a reference to any one of those persons and if the interest of the landlord is for the time being held by two or more persons jointly, the reference in sub-paragraph (1)(c) above to an individual is a reference to any one of those persons.

(3)A tenancy (in this sub-paragraph referred to as “the new tenancy”) is excluded from sub-paragraph (1) above if—

(a)it is granted to a person (alone, or jointly with others) who, immediately before it was granted, was a tenant under an assured tenancy (in this sub-paragraph referred to as “the former tenancy”) of the same dwelling-house or of another dwelling-house which forms part of the building in question; and

(b)the landlord under the new tenancy and under the former tenancy is the same person or, if either of those tenancies is or was granted by two or more persons jointly, the same person is the landlord or one of the landlords under each tenancy.

The OP did not, at all times, occupy the property as their only or principle home evidence by the facts that a) the OP could ordinary be found at the parents' property and b) also went as far as registering with a GP near the parents' home. 

ThisIsWeird

_Penny_Dreadful said:

ThisIsWeird said:

_Penny_Dreadful said:

@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. 

I guess. It certainly isn't cut and dried - it isn't definitive. Should the sis pursue such a line, then it could well become messy.

Are you saying the legislation is not definitive?

Resident landlords

10(1)A tenancy in respect of which the following conditions are fulfilled—

(a)that the dwelling-house forms part only of a building and, except in a case where the dwelling-house also forms part of a flat, the building is not a purpose-built block of flats; and

(b)that, subject to Part III of this Schedule, the tenancy was granted by an individual who, at the time when the tenancy was granted, occupied as his only or principal home another dwelling-house which,—

(i)in the case mentioned in paragraph (a) above, also forms part of the flat; or

(ii)in any other case, also forms part of the building; and

(c)that, subject to Part III of this Schedule, at all times since the tenancy was granted the interest of the landlord under the tenancy has belonged to an individual who, at the time he owned that interest, occupied as his only or principal home another dwelling-house which,—

(i)in the case mentioned in paragraph (a) above, also formed part of the flat; or

(ii)in any other case, also formed part of the building; and

(d)that the tenancy is not one which is excluded from this sub-paragraph by sub-paragraph (3) below.

(2)If a tenancy was granted by two or more persons jointly, the reference in sub-paragraph (1)(b) above to an individual is a reference to any one of those persons and if the interest of the landlord is for the time being held by two or more persons jointly, the reference in sub-paragraph (1)(c) above to an individual is a reference to any one of those persons.

(3)A tenancy (in this sub-paragraph referred to as “the new tenancy”) is excluded from sub-paragraph (1) above if—

(a)it is granted to a person (alone, or jointly with others) who, immediately before it was granted, was a tenant under an assured tenancy (in this sub-paragraph referred to as “the former tenancy”) of the same dwelling-house or of another dwelling-house which forms part of the building in question; and

(b)the landlord under the new tenancy and under the former tenancy is the same person or, if either of those tenancies is or was granted by two or more persons jointly, the same person is the landlord or one of the landlords under each tenancy.

The OP did not, at all times, occupy the property as their only or principle home evidence by the facts that a) the OP could ordinary be found at the parents' property and b) also went as far as registering with a GP near the parents' home. 

Are you saying the legislation is definitive? :-)

You are undoubtedly better informed than me, but if you are citing the above legislation as being defined-itive, then may I ask;

1) At what point did Fluffy's sis's status as a 'lodger' change? How many weeks of Fluffy's absence triggered this?

2) What should Fluffy, as a lay person who'd kindly allowed her sis' to occupy a spare bedroom for a trivial rent, have done - and should have known to have done - under these circumstances, to prevent any such issues? Ie, so that her sis remained a 'lodger'?

3) If the sis gained automatic 'rights' through Fluffy's absence, how long will it similarly take on Fluffy's return for sis 'lodger' status to be revoked?

4) If Fluffy moves back in, and shares the house with sis under the previous conditions, what can sis do?

_Penny_Dreadful

ThisIsWeird said:

_Penny_Dreadful said:

ThisIsWeird said:

_Penny_Dreadful said:

@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. 

I guess. It certainly isn't cut and dried - it isn't definitive. Should the sis pursue such a line, then it could well become messy.

Are you saying the legislation is not definitive?

Resident landlords

10(1)A tenancy in respect of which the following conditions are fulfilled—

(a)that the dwelling-house forms part only of a building and, except in a case where the dwelling-house also forms part of a flat, the building is not a purpose-built block of flats; and

(b)that, subject to Part III of this Schedule, the tenancy was granted by an individual who, at the time when the tenancy was granted, occupied as his only or principal home another dwelling-house which,—

(i)in the case mentioned in paragraph (a) above, also forms part of the flat; or

(ii)in any other case, also forms part of the building; and

(c)that, subject to Part III of this Schedule, at all times since the tenancy was granted the interest of the landlord under the tenancy has belonged to an individual who, at the time he owned that interest, occupied as his only or principal home another dwelling-house which,—

(i)in the case mentioned in paragraph (a) above, also formed part of the flat; or

(ii)in any other case, also formed part of the building; and

(d)that the tenancy is not one which is excluded from this sub-paragraph by sub-paragraph (3) below.

(2)If a tenancy was granted by two or more persons jointly, the reference in sub-paragraph (1)(b) above to an individual is a reference to any one of those persons and if the interest of the landlord is for the time being held by two or more persons jointly, the reference in sub-paragraph (1)(c) above to an individual is a reference to any one of those persons.

(3)A tenancy (in this sub-paragraph referred to as “the new tenancy”) is excluded from sub-paragraph (1) above if—

(a)it is granted to a person (alone, or jointly with others) who, immediately before it was granted, was a tenant under an assured tenancy (in this sub-paragraph referred to as “the former tenancy”) of the same dwelling-house or of another dwelling-house which forms part of the building in question; and

(b)the landlord under the new tenancy and under the former tenancy is the same person or, if either of those tenancies is or was granted by two or more persons jointly, the same person is the landlord or one of the landlords under each tenancy.

The OP did not, at all times, occupy the property as their only or principle home evidence by the facts that a) the OP could ordinary be found at the parents' property and b) also went as far as registering with a GP near the parents' home. 

Are you saying the legislation is definitive? :-)

You are undoubtedly better informed than me, but if you are citing the above legislation, then may I ask;

1) At what point did Fluffy's sis's status as a 'lodger' change? How many weeks of Fluffy's absence triggered this?

2) What should Fluffy, as a lay person who'd kindly allowed her sis' to occupy a spare bedroom for a trivial rent, have done - and should have known to have done - under these circumstances, to prevent any such issues? Ie, so that her sis remained a 'lodger'?

3) If the sis gained automatic 'rights' through Fluffy's absence, how long will it similarly take on Fluffy's return for sis 'lodger' status to be revoked?

4) If Fluffy moves back in, and shares the house with sis under the previous conditions, what can sis do?

Are you being deliberately obtuse or do you genuinely not understand? 

The legislation defines what is a resident landlord. The OP does not fit the criteria. 

1. When the OP no longer met the criteria of a resident landlord the sister ceased to be an excluded occupier. 
2. Ignorance is not a defence. If it were then all those landlords who end up issuing invalid section 21 notices due to a missing piece of PI would still be granted a possession order. “It wasn’t my fault m’lud. I’m an accidental landlord, I didn’t know I was supposed to give the tenant a how-to-rent booklet.” What the OP should have done was either evict the sister before the OP moved out or issued the sister with a written AST. There’s a reason many of the seasoned landlords on the forum say the number one rule is never let to friends or family. This is a prime example of why it’s a bad idea. People think because it’s a friend or family member they can be lackadaisical with the paper work…you can’t be because when it goes wrong it goes very badly wrong and relationships are ruined. 
3. What makes you think the OP can just move back in. A couple of my BTL are former residences do you think I can move back in and make the occupants lodgers? Even with a HMO when the landlord lets out the rooms on an individual basis and then a tenant moves out making a room available the landlord taking up occupation in the room doesn’t make the tenants renting the other rooms excluded occupiers. 
4. It depends on how belligerent the sister is feeling. The best outcome for the OP would be the sister rolling over and accepting the situation. The worst is the sister getting and acting upon advice from the local authority or tenant organisation informing her of her rights and the OP being removed from the property. The OP could end up like Louis Scudder from Kent.