Evicting a family member

newsgroupmonkey_

subjecttocontract said:

Perhaps your best option is to use one of the eviction specialists but it comes at a cost. Landlord Action are one of the best, easy to find on the internet with clear charges and fees. Suggest you go down that route but act quickly as things might change for the worst at the October budget.

Section 21 isn't going to change with the budget.
It needs a proper law that has to be voted in, up to the Lords and back and all sorts.

That's not going to happen in the next 6 months.

Bookworm105

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

correct, the courts have established a list of subjective assessments of where someone has a main residence,

but you do not need to be a judge to work your way through the issues and come to a point where the balance is swaying in one direction or the other. They are after all "man in the street" type perceptions arising from the "tests":

CG64545 - Private residence relief: two or more residences: no valid notice made - HMRC internal manual - GOV.UK (www.gov.uk)

but they hay little impact on the bottom line, to have a lodger you must be resident, not just claim its your main residence when you do not live there.

Olinda99

the definition of where your principal private and residence is for capital gains tax purposes etc has nothing to do with a lodger

you can have your main residence in Birmingham but be temporarily living in a flat (second residence) that you own in St Ives and have a lodger there

a lodger cannot magically turn into a tenant under any circumstances without due process

apart from anything else in order for a tenancy to  be created the lodge must have exclusive access and no matter how long the person has been away they still have the right to return and so there is no exclusive access

ThisIsWeird

_Penny_Dreadful said:

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.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.

Another red-herring? What does CGT have to do with this case?
I totally understand you are citing law and legislation, PennyD, but my point is that these rules were never intended for circumstances such as Fluffy's, and I strongly suspect that in the worst case scenario of action being required or taken by either party here, Fluffy would come out on top.
It's all about intention, and cause. And other wee factors.

I've cited a practical example, not just close to home, but in my home; could my mil have become a naturalised  'tenant' under any circumstances, other than me & wife getting a new property to move in to permanently, and cutting our CT and other ties to our main house? Yes or no.

Another practical example, also very close to home; my bro broke his leg a couple of years back, and since he lived on the 6th floor of a block, he came to stay with us to convalesce. He was here around 5 months. During that time, a number of people used his flat - numerous folk have keys, and they come and go. Q - could one of them have stayed there for the 5 months, left a wee sum of cash on the sideboard as 'rent', and claimed to be a tenant? All these folk have his ongoing permission to use his flat (tho' they should check, of course...) since bro is often away in any case. Ok, what if a friend had been staying there with him just before he left to come to us, paying a sum towards his keep, and remaining there for the 5 months afterwards - could they claim 'tenancy'? What if his accident had been more serious, and he'd been with us for a year? Two? And he told a mate, "Just use my flat - I won't be there for ages. Leave some cash to cover the bills, yeah?" Yes or no.

Another Q based on this true example - does the reason for moving out matter? Bro's was 'forced' on him - it wasn't something he chose to do. Fluffy's was ditto. Make any difference?

Does the rental 'sum' matter a jot? This is what Fluffy said; "She pays some, but less than half of what I’ve been paying while caring for our dying parents. I’ve basically been paying more to not live there than she has to live there." Sis is not paying what would constitute anything like a full rental sum - it appears to be more a contribution towards her keep, covering her bills (Fluffy can clarify if she wishes). Q - does that make any difference? The CT has no single-person discount, which it would be entitled to if Fluffy's intention was to move out and rent her flat to a single person. Q - does that make a difference?

In short, PennyD - are you certain of your claims?

ThisIsWeird

My personal advice remains - do not give this person any hint or suggestion that action may be required to remove them. It's your flat, move back in. You resume pre-caring normality. If sis is 'difficult', then just avoid confrontation; "I'm emotionally and physically wiped out - I don't want any arguments or discussions right now", and walk away (not out the front door, obvs).

IT IS YOUR FLAT.

Best scenario, it works. And, from what we've been told, that would be the morally correct outcome too - I am not suggesting anyone tries to dodge their responsibilities. Worst, is you are back to square one, need to take action, which I believe you will most likely win - but it'll be horrible.

That legislation was never designed for folk in Fluffy's situation. It would be a travesty if so.

FreeBear

Olinda99 said: a lodger cannot magically turn into a tenant under any circumstances without due process

apart from anything else in order for a tenancy to  be created the lodge must have exclusive access and no matter how long the person has been away they still have the right to return and so there is no exclusive access

I, and several others, disagree with your (unqualified) opinion. Should this matter ever go to court, Street v Mountford and  Family Housing Association v Jones would probably get a mention in any ruling (also worth reading some of the cases referred to in both judgements).

It is quite possible that a licence could convert to a tenancy by virtue of the (resident) landlord's absence, so the OP needs to get proper legal advice.

_Penny_Dreadful

ThisIsWeird said:

_Penny_Dreadful said:

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.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.

Another red-herring? What does CGT have to do with this case?
I totally understand you are citing law and legislation, PennyD, but my point is that these rules were never intended for circumstances such as Fluffy's, and I strongly suspect that in the worst case scenario of action being required or taken by either party here, Fluffy would come out on top.
It's all about intention, and cause. And other wee factors.

I've cited a practical example, not just close to home, but in my home; could my mil have become a naturalised  'tenant' under any circumstances, other than me & wife getting a new property to move in to permanently, and cutting our CT and other ties to our main house? Yes or no.

Another practical example, also very close to home; my bro broke his leg a couple of years back, and since he lived on the 6th floor of a block, he came to stay with us to convalesce. He was here around 5 months. During that time, a number of people used his flat - numerous folk have keys, and they come and go. Q - could one of them have stayed there for the 5 months, left a wee sum of cash on the sideboard as 'rent', and claimed to be a tenant? All these folk have his ongoing permission to use his flat (tho' they should check, of course...) since bro is often away in any case. Ok, what if a friend had been staying there with him just before he left to come to us, paying a sum towards his keep, and remaining there for the 5 months afterwards - could they claim 'tenancy'? What if his accident had been more serious, and he'd been with us for a year? Two? And he told a mate, "Just use my flat - I won't be there for ages. Leave some cash to cover the bills, yeah?" Yes or no.

Another Q based on this true example - does the reason for moving out matter? Bro's was 'forced' on him - it wasn't something he chose to do. Fluffy's was ditto. Make any difference?

Does the rental 'sum' matter a jot? This is what Fluffy said; "She pays some, but less than half of what I’ve been paying while caring for our dying parents. I’ve basically been paying more to not live there than she has to live there." Sis is not paying what would constitute anything like a full rental sum - it appears to be more a contribution towards her keep, covering her bills (Fluffy can clarify if she wishes). Q - does that make any difference? The CT has no single-person discount, which it would be entitled to if Fluffy's intention was to move out and rent her flat to a single person. Q - does that make a difference?

In short, PennyD - are you certain of your claims?

@HHarry brought CGT into it and I was responding to him which is clear from my post.  I also point out that the thread is about housing law not tax law but you appear to have missed that as well.

We are just going round in circles.  It is irrelevant that the laws were not written with the OP's exact circumstances in mind they are what they are and the law is what courts base their decisions on and not the other guff that you claim.

Quite frankly I am bored of explaining the facts of the OP's case to you so I have zero interest in being dragged into the hypothetical cases you have presented.

Both Bookwork105 and theartfullodger have already covered rent amounts in this thread so I shall not repeat them.  The council tax is just another red herring you keep trying to cling to, not applying for a single person discount at the flat doesn't change the fact that the OP was not a resident landlord as defined in the Housing Act 1988.

I'm confident that the OP has inadvertently created an AST and that is how a court would also see it. Let's not forget the first post on this thread, which is what I answered back on page 2, is the OP is asking how to legally evict the sister so it appears the OP has at least an inkling that it is not as simple as just booting the sister out.

fluffy_kittens2024 said:

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

It is now time for me to get off this not-so-merry-go-round so I shall not be posting any further on this thread except to say that I hope things work out for fluffy_kittens2024 and that he or she or they has not been put off using the forum again in the future.