Evicting a family member

mybestattempt

@ThisIsWeird

I understand why you may feel I'm being pedantic but I would ask you the same question I put to another poster:

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?

HHarry

_Penny_Dreadful 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?

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

But there’s no legal definition of Residence let alone Princial Residence.  Ultimately it’s down to the Court to decide, and length of time alone isn’t enough to determine that.

https://www.gov.uk/hmrc-internal-manuals/capital-gains-manual/cg64427

https://www.property-tax-portal.co.uk/what-does-main-residence-mean-for-principal-private-residence-relief-purposes.shtml

Grumpy_chap

ThisIsWeird said: 

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.

I don't think the "some" months is a factor of time, but more a factor of actions.
This is not a discussion about whether it is a two-week or four-week holiday, or longer but undefined period.
Whether or not the Sister is a Tenant seems to be more related to the actual facts of what happened.

If OP went to stay for a few nights at the parent's house, but spending a few nights at their own house, the facts would support the OP not having moved out but simply staying away occasionally for a few nights to support the parents.  Even if "occasionally" was, in fact, very often.

What actually happened, and it may have been a migration from the above "occasionally" to something more permanent, is that at some point the OP rented a separate property near her parents, moved there with sufficient permanence to change records (registered for a GP).

So, this is not a case of after "some" months, the OP moved out and the Sister may have become a Tenant (whether by intent or not).
This is a case that the Sister may have become a Tenant when the OP rented a separate home and transferred their life to the area where the parents lived.

ThisIsWeird

mybestattempt said:

@ThisIsWeird

I understand why you may feel I'm being pedantic but I would ask you the same question I put to another poster:

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;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?

Oi, you ain't being more pedantic than me, so there.

Anyhoo, these are semantics - Fluffy was technically a 'landlord', from the simple process of letting her sis lodge with her - as I did my mil. I'd never have called myself a LL, but I guess I was one. That ain't the same as a landlord landlord. And, yes, Fluffy became a technically absent landlord when she moved out to care for her parents, but that ain't the same as an absent landlord landlord. You know what I mean...

That legislation has a purpose, a rightful one, but it clearly ain't aimed at Fluffy and her circumstances here.

A judge's role is to interpret the law, and to guide or make decisions based on the individual situations. PennyDread reckons the Leg is definitive; I do not see it like this at all. It would in my view be an utter injustice if Fluffy were punished in any way, and I cannot see a judge agreeing to it; that Leg was not put in place to handle situations like Fluffy's.

Q - would Fluffy have returned to her flat had her parents recovered enough to look after themselves again? Would Fluffy have returned to her flat if her mum had sadly passed away after only one or two months? Would - and could - Fluffy have returned to her flat at any point had the circumstances changed for her? Yes yes yes.

I cannot see that she is an 'absent landlord' under the definition and intention of that legislation. 

Herzlos

_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. 

Surely temporary is a matter of intent? Fluffy chose to live with parents to provide care for an indefinite period of time but presumably the intention to some point come home. This is confirmed by the fact she removed the single person subsidy on the council tax and kept all documentation except doctors at home. When she left, she didn't know she was going to be away for 4 years, and it was out of her control.

It's realistically no different to if Fluffy had gone on a long holiday, or a work placement or something.

I'm not sure if I missed some details, but they'd be good to know Fluffy:

1. Did your sister move in before you moved out? So she was a lodger at that point.

2. Do you still have a room in the flat? So you could stay there at any point without any prior arrangements?

If both are yes, then the sister is clearly a lodger.

If both are no, it might be harder to claim that.

silvercar

I feel embarrassed for the sister if she were to go to court to claim a tenancy. 

a) Fluffy has very kindly provided a temporary home for the sister going through a divorce
b) Fluffy has provided the vast majority of care for their parents, even to the extent of moving in with them
c) Fluffy seems to be sorting out the estate etc

and then,

d) sister uses the opportunity to claim a tenancy of Fluffy's home.

As I said before, no good deed goes unpunished.

At least if it went to court it may be picked up by the newspapers!

ThisIsWeird

Grumpy_chap said:

ThisIsWeird said: 

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.

I don't think the "some" months is a factor of time, but more a factor of actions.
This is not a discussion about whether it is a two-week or four-week holiday, or longer but undefined period.
Whether or not the Sister is a Tenant seems to be more related to the actual facts of what happened.

If OP went to stay for a few nights at the parent's house, but spending a few nights at their own house, the facts would support the OP not having moved out but simply staying away occasionally for a few nights to support the parents.  Even if "occasionally" was, in fact, very often.

What actually happened, and it may have been a migration from the above "occasionally" to something more permanent, is that at some point the OP rented a separate property near her parents, moved there with sufficient permanence to change records (registered for a GP).

So, this is not a case of after "some" months, the OP moved out and the Sister may have become a Tenant (whether by intent or not).
This is a case that the Sister may have become a Tenant when the OP rented a separate home and transferred their life to the area where the parents lived.

I agree. And I believe it would also come down to 'intent'.

This legislation was never designed to 'catch out' the likes of Fluffy. Any more than it could have caught out me and t'missus had we stayed at my bro's for an extended period; my mil would never ever become a 'tenant' in our absence, and keep us from our door! It's an absurdity.

This legislation is not defined, is not 'definitive'. Each adjudicator would take into account the individual circumstances, I am pretty sure of that.

It would be a travesty if not.

ThisIsWeird

silvercar said:

I feel embarrassed for the sister if she were to go to court to claim a tenancy. 

a) Fluffy has very kindly provided a temporary home for the sister going through a divorce
b) Fluffy has provided the vast majority of care for their parents, even to the extent of moving in with them
c) Fluffy seems to be sorting out the estate etc

and then,

d) sister uses the opportunity to claim a tenancy of Fluffy's home.

As I said before, no good deed goes unpunished.

At least if it went to court it may be picked up by the newspapers!

As far as we know, the sis is just keeping her head down, and hasn't taken any other 'action'.

In which case, in the most matter-of-fact way that Fluffy can possibly manage, she should return to her flat and resume her normal life there. Change her bed. Buy some groceries. Rearrange the furniture and ornaments. Anything she bludy well wants to. And if she needs to return to her mum's house on occasion, that's fine.

And take it from there.

To seek advice on how to act, or to meet up with sis outside her own home to discuss this, is to invite a hellish, drawn out 'mare, which I am still pretty sure Fluffy will ultimately 'win'. But, man, who wants to go there :-(

_Penny_Dreadful

HHarry said:

_Penny_Dreadful 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?

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

But there’s no legal definition of Residence let alone Princial Residence.  Ultimately it’s down to the Court to decide, and length of time alone isn’t enough to determine that.

https://www.gov.uk/hmrc-internal-manuals/capital-gains-manual/cg64427

https://www.property-tax-portal.co.uk/what-does-main-residence-mean-for-principal-private-residence-relief-purposes.shtml

This is like Groundhog Day.  I'm talking about housing law and I have quoted exactly how the Housing Act 1988 defines a resident landlord.  It says that the residence landlord must occupy the property as their only or principal residence.  The OP was occupied looking after two ill parents however the OP was not occupying the flat. Therefore, the flat was not the OP's only or principle residence as far as the Housing Act 1988 is concerned because it wasn't being resided in by the landlord at all.

Let's look at the HMRC manual you linked to even though this thread is about housing law rather than tax law.

The word residence is not defined in the legislation so it must be given its ordinary meaning. For an individual its ordinary meaning is the dwelling in which that person habitually lives: in other words, his or her home.

The OP was not habitually living in the flat, the OP was habitually living with their parents.  If you read further in the manual for CGT purposes, not housing law purposes I might add, it describes periods of absence where an individual may still claim Private Residence Relief for CGT for a period of up to 3 years which @Bookworm105 posted about earlier.

Any periods of absence for whatever reason which do not exceed 3 years in total, s223(3)(a) TCGA92

It has been longer than 3 years and at no point in the last 4+ years has the OP habitually lived in the property so for CGT purposes it is no longer their only or principal residence either.

YoungBlueEyes

fluffy_kittens2024 said:

So, I have a flat with a mortgage. My sister (older by 5 years) moved in in 2020 after she got divorced. Since 2020, I have been living at our parents as they were both dying of cancer and I (and only I) cared for them. I have now lost both of them. I’m still currently there to deal with probate and estate matters. 

I want to start the process of selling the flat my sister is living in but she refuses to agree and won’t discuss it - she will just block me. (I wanted to sell it and move back in 2020 but for obvious reasons other things took over).

Only my name is on the deeds and mortgage as well as the bills. 

My question is, is there an official/legal way of “evicting” a family member when they are un-cooperating like this? 

Thank you. 

I've just noticed the first post's been edited so I've quoted it.

We need @flu@fluffy_kittens2024 to come back give us a bit of clarity if they would like any further comments.

Mind the only thing that really needs repeating is go and get proper legal advice, and come back and update us. 

As a side note - is this a case of an actual Accidental Landlord/Lady?