Evicting a family member

_Penny_Dreadful

silvercar said:

No good deed goes unpunished.

_Penny_Dreadful said:

ThisIsWeird said:

_Penny_Dreadful said:

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. 

No, I'm really not trying to be either. Honestly.

1) When did the OP no longer meet this criterion? When? At what point? Date? You say it's definitive. I see nothing that's definitive in that legislation.

2) Ignorance is no defence, that's generally true. But intent could be. All these other examples you cite are all about LL's who have intent - they chose to be a LL and to have tenants. If they then make an error - deliberately or accidentally - they are punished (often quite punitively). Fluffy is not an accidental landlord - she's a flat owner who allowed her sis to lodge with her.

3) Fluffy can move in because nothing has actually changed. Her sis has not made any claim to the contrary - she's just ignoring Fluffy. Not exactly acting in a 'tenant-like behaviour' should it come to this...

4) Yes, that's the worst case. So I'm suggesting a method to pre-empt that. If the sis becomes bolshie, then she'll become bolshie. But if she does so before Fluffy even gets a foot in the door, Fluffy will be in a worse situation.

Even if this became 'legal', this is not the same as an actual LL who is either lax or is deliberately bending the rules.

Could you put a timescale on point 1, for example?

What would you suggest Fluffy does?

And why do they call you 'Penny'?

1. I have already answered this question. 
2. The OP deliberately became a landlord the second the sister moved in and started paying rent. The legislation clearly defines a resident landlord so the intent is irrelevant. It’s the facts of the matter that are important and factually the OP has not occupied that property as their only or main home for 4+ years. 
3. Legally quite a bit has changed as several posters have pointed out. 
4. It is the same as any other landlord. The legislation is not different when the landlord happens to share DNA with the tenant. 

What I would do is arrange to meet the sister for a coffee somewhere neutral to sound her out. Perhaps floating the idea of me moving back in to see how she reacts. If that doesn’t go the way I hoped then I’d try mediation or revisit the idea of her buying me out. If that fails take the nuclear option which I have already described in this thread. I’d also see about getting off the council tax and close the utility accounts. It’s all a huge mess and the last thing the OP needs at this time. 

Becoming a landlord to a lodger to help out a family member is clearly very different to becoming a landlord of an unrelated tenant. If any of this got to court, a judge could well appreciate the difference. 

"I'm temporarily moving to look after my relatives" is very different from "I'm moving out and giving you the tenancy of the whole property." 

Temporarily for 4+ years to the point you change your GP and the OP hasn’t given any suggestion of wanting to return to the flat, only to sell it? I doubt many people, including judges, would deem that to be temporary. 

Olinda99

assuming both sisters were there in the first place ie both showing the property and she was a lodger than she is still in lodger. There is no way she could be tenant for the following reasons.

In order to create a tenancy:

1. a tenancy is a contract and like all other contracts there must be a meeting of minds i.e both people know what they are doing and both agree they are creating a tenancy. There must be a knowledge and agreement on both sides to enter a legal relationship.

2. the sister must have exclusive possession- this does not simply mean the other sister has moved away for a while it means that the other sister is simply not allowed to enter the property. There is no suggestion this was ever true. The fact that the other sister chose not to enter the property for four years is irrelevant she still had the right to should she have wanted to

3. to create a tenancy you must have a time scale specified- this can obviously be a specific time eg 1 year or a periodic rolling one. Again there is no suggestion that this was ever true

HHarry

_Penny_Dreadful said:

I have. This appears to be a case of I can explain it to you but I cannot understand it for you. 

I kind of agree with ThisisWeird that you haven’t.  You said;

1. When the OP no longer met the criteria of a resident landlord the sister ceased to be an excluded occupier. ”

But what are the criteria for the “When”?  She clearly could have gone on holiday for a fortnight without causing an issue.  A month? Travelling for 6 months?  Knocked down by a car and in a coma for 2 years?

_Penny_Dreadful

HHarry said:

_Penny_Dreadful said:

I have. This appears to be a case of I can explain it to you but I cannot understand it for you. 

I kind of agree with ThisisWeird that you haven’t.  You said;

1. When the OP no longer met the criteria of a resident landlord the sister ceased to be an excluded occupier. ”

But what are the criteria for the “When”?  She clearly could have gone on holiday for a fortnight without causing an issue.  A month? Travelling for 6 months?  Knocked down by a car and in a coma for 2 years?

When the property ceased to be the OP's only or principal residence as the Housing Act 1988 clearly says. 

ThisIsWeird

_Penny_Dreadful said:

ThisIsWeird said:

1) No you haven't. 

I have. This appears to be a case of I can explain it to you but I cannot understand it for you. 

I do sometimes get the contents of such threads muddled, but I ain't as simple as you wish to imply.

I asked you, "1) When did the OP no longer meet this criterion? When? At what point? Date?"  You say it's definitive - - so, define it.

Many of these sorts of legal issues will be very easy to 'define', as one of the parties - usually the LL - will have messed up, either deliberately or in error. But some - like, I very much suspect, this one - will not. I cannot see any judge being presented by the case outline saying, "Simples". 

That legislation was put in place for very valid reasons, largely to protect tenants being taken advantage off by incompetent or unscrupulous landlords.

This is not the case here.

We had mil living under our roof for 3 years recently, and she contributed a weekly sum to cover her costs, rounded up. We probably 'made', ooh, a £enner a week out of the non-existent deal? Had we (wife and I) stayed in bro's flat in a lively city for an extended break during that 3-year period, at what point would mil have inadvertently gained 'tenant' status, and become nigh-on unevictable? (shudder )

Once you've answered that, then add the factor that our extended stay away would have been voluntary, purely for social reasons, whereas Fluffy was morally obliged to do so.

And you reckon a judge is going to tut-tut her, citing that legislation? You are certain of that, are you? I mean, you stated it was 'definitive' - you gave no quarter.

I'm suggesting it is not.

mybestattempt

HHarry said:

_Penny_Dreadful said:

I have. This appears to be a case of I can explain it to you but I cannot understand it for you. 

I kind of agree with ThisisWeird that you haven’t.  You said;

1. When the OP no longer met the criteria of a resident landlord the sister ceased to be an excluded occupier. ”

But what are the criteria for the “When”?  She clearly could have gone on holiday for a fortnight without causing an issue.  A month? Travelling for 6 months?  Knocked down by a car and in a coma for 2 years?

The facts in this case are that the OP moved out on a date over 4 years ago and since that date she has not lived in the house. From that date, her sister has lived in the house and paid rent to the OP.

I believe the OP was not a resident landlord from the date she moved out.

What date based on the facts, not any hypothetical scenario, conjecture or assumption, do you say the OP ceased to be a resident landlord?

ThisIsWeird

_Penny_Dreadful said:

Temporarily for 4+ years to the point you change your GP and the OP hasn’t given any suggestion of wanting to return to the flat, only to sell it? I doubt many people, including judges, would deem that to be temporary. 

The 'sell' is a red herring. You have no idea what Fluffy's original intentions were.

You have given the timeline, 'Temp to 4+ years'. At which point along this did the sis become a tenant? Remember, Fluffy could and would have returned at any point, either because her parents had improved sufficiently to look after themselves again, or because they'd passed away sooner. This was a highly flexible vacation, the duration of which was not dictated by her.

Are you effectively suggesting that at 'some' definitively undefined point a return to her own flat could have been greeted with sis', "Hmm, as landlord, you need to make an appointment to enter."? If staggeringly so, then please suggest the number of 'some' months involved.

_Penny_Dreadful

ThisIsWeird said:

_Penny_Dreadful said:

Temporarily for 4+ years to the point you change your GP and the OP hasn’t given any suggestion of wanting to return to the flat, only to sell it? I doubt many people, including judges, would deem that to be temporary. 

The 'sell' is a red herring. You have no idea what Fluffy's original intentions were.

You have given the timeline, 'Temp to 4+ years'. At which point along this did the sis become a tenant? Remember, Fluffy could and would have returned at any point, either because her parents had improved sufficiently to look after themselves again, or because they'd passed away sooner. This was a highly flexible vacation, the duration of which was not dictated by her.

Are you effectively suggesting that at 'some' definitively undefined point a return to her own flat could have been greeted with sis', "Hmm, as landlord, you need to make an appointment to enter."? If staggeringly so, then please suggest the number of 'some' months involved.

Selling is not a red herring as it shows no intent to return to the property.  At risk of sounding like a broken record the sister became a tenant when the flat ceased to be the OP's only or principal residence as per the Housing Act 1988.

I could drive down the A90 and 100mph, it doesn't make it legal.  I don't know about you but when I go on holiday I don't register with a GP near where I am holidaying nor have I ever taken a 4+ year holiday more's the pity.

The point is defined as I have repeatedly explained. 

HHarry

mybestattempt said:

HHarry said:

_Penny_Dreadful said:

I have. This appears to be a case of I can explain it to you but I cannot understand it for you. 

I kind of agree with ThisisWeird that you haven’t.  You said;

1. When the OP no longer met the criteria of a resident landlord the sister ceased to be an excluded occupier. ”

But what are the criteria for the “When”?  She clearly could have gone on holiday for a fortnight without causing an issue.  A month? Travelling for 6 months?  Knocked down by a car and in a coma for 2 years?

The facts in this case are that the OP moved out on a date over 4 years ago and since that date she has not lived in the house. From that date, her sister has lived in the house and paid rent to the OP.

I believe the OP was not a resident landlord from the date she moved out.

What date based on the facts, not any hypothetical scenario, conjecture or assumption, do you say the OP ceased to be a resident landlord?

I genuinely don’t know.  But then I don’t think anyone else can claim too, and I think that’s the point - there has to be a subjective element to it.  

We don’t know that the OP ‘moved out’ 4 years ago.  Moving out suggests taking all your possessions with you. Maybe she went to her parents with the intention of staying to help for a month.

Bookworm105

FlorayG said:

All this argument over tenant or lodger I think comes down to one thing - does Fluffy still have her own bedroom in the flat? An inhabitant can't be assumed to have a legal tenancy if the landlord has retained sole use of a room, surely?.

That is not a sole determinant.
Retention of a bedroom could make it a joint tenancy for example.
The fact is OP has not been using this as the main residence for 4 years, whether they still have possessions/bedroom there or not