UK Landlord Forum / Life

Can anyone answer this question? In 2003 my mother was a landlord and took on a tenant. She took a deposit, and it was recorded in the tenancy agreement. In 2015 she passed away and my husband and I became the landlords, but the tenant refused to sign another agreement, after we turned the building into a HMO. We need to know if we can issue a section 21, as we need to sell the property and need him out. He has also caused problems and we have already have issued a section 8 and a court hearing took place then was postponed till Jan. I have provided the tenant with an EPC and a How To Rent document. No gas certificate is needed as it is only electric used in the building.

Yes...... if you served Landlord and Tenant Act 1985 section 3 notice notifying change in landlord, and if the property is licensable you have a valid licence or have applied for such a licence and the application is ongoing, and if you are in Wales you and the property is registered and licensed with Rent Smart Wales, and if the deposit was protected in time and prescribed information was given.

Ugh.  This is messy and I'm afraid you may need proper, paid-for legal advice.

Strictly speaking you don't need to lodge a tenant's deposit with a deposit protection scheme if the last signed tenancy agreement was dated on or before 5 April 2007, so in that case you could probably serve a section 21.  But it's very possible that you have invalidated the tenancy when you made the building into a HMO.  Assured Shorthold Tenancies normally confer exclusive possession of a dwelling, and if there isn't a term in the tenancy to say this, then the Court is likely to infer one.

Edit: Crossed with KTC.

Ugh, so I focused on the 2015 and missed the 2003 bit. Regardless, the deposit needs to be protected for any s21 to be valid even if it was received before 2007, being from before 2007 merely mean no deposit protection penalty would had apply even if it wasn't out of limitation (Charalambous & Anor. v Ng & Anor. [2014] EWCA Civ 1604). However, it is entirely possible that when OP became landlord, they were deemed to have received the deposit for the purposes of deposit protection legislation so we're talking 2015 not 2003.

QuoteBut it's very possible that you have invalidated the tenancy

A landlord can't invalidate an existing tenancy by breaching the terms of it. It would "merely" be a breach of contract that the tenant can receive damages for. The tenancy would still very much be valid. I don't see how it would prevent a valid s21 in any case.

Yes, KTC is correct: in that event the section 21 would be valid but potentially prohibitively expensive to enforce.  Consider instructing a solicitor.

Quote from: Mortimer on November 02, 2019, 10:49:06 PM
Ugh.  This is messy and I'm afraid you may need proper, paid-for legal advice.

Strictly speaking you don't need to lodge a tenant's deposit with a deposit protection scheme if the last signed tenancy agreement was dated on or before 5 April 2007, so in that case you could probably serve a section 21.  But it's very possible that you have invalidated the tenancy when you made the building into a HMO.  Assured Shorthold Tenancies normally confer exclusive possession of a dwelling, and if there isn't a term in the tenancy to say this, then the Court is likely to infer one.

Edit: Crossed with KTC.

It technically became under HMO rules but we didn't require a licence as were under the limit of 5 people. The tenant agreed to the terms and even said in his defense statement that he was happy with the result, and happy to move into the top flat in the building. So we have that in writing. I will pass on your reply to my solicitor. Thank you. I am also phoning Legal For Landlords as they dealt with our case originally, until the tenant refused to be evicted after a section 8 was served on him, for anti-social behavour.

Is that ground 14 you served the section 8 under? If so, I wouldn't expect a (non-suspended) possession order.

Quote from: KTC on November 03, 2019, 12:20:05 AM
Is that ground 14 you served the section 8 under? If so, I wouldn't expect a (non-suspended) possession order.

Yes it was. He assaulted another tenant and damaged property. But he counteracted and accused us of damages! So we have another court hearing set for Jan 7th. But his solicitor has come forward and said he will leave if we pay compensation and the legal fees so far (as he is on Universal Credit.) However their price is over £8000 which WE DO NOT WANT TO PAY! We have enough proof on him to win the case but it will cost us about the same amount maybe more. Also if we win we get nothing! This is so unfair but we just want it over with! My solicitor seems to think we can issue a section 21 and has told his solicitor. Also our EPC rating is low and we do not want to pay out more money to renovate, so by April 1st 2020 we can have no tenants in the building according to the law, if we haven't improved the rating. We just want to sell up and move! We seriously have had enough!

Negotiate.  Via the lawyers, offer him £3k to go quietly.

Quote from: Mortimer on November 03, 2019, 03:16:06 PM
Negotiate.  Via the lawyers, offer him £3k to go quietly.

I am in negotiation with my solicitor. Thank you for your advice

Quote from: Pevans on November 03, 2019, 12:48:07 PM
We have enough proof on him to win the case

My underlying point wasn't whether you can actually win the case with a s8g14, especially since I have no idea what evidence or arguments you had, but that even if you do the ground is discretionary so any resulting order for possession could very well be suspended on a "don't do it again" basis.

I have no idea why editing a post cause a second copy of it to appear on this forum....