Getting rid of sub letters / period tenancy / fixed term coming to an end

Landlord Discussion
21

I have the same situation but as the tenant allowed them in I have been told by the solicitor dealing with the eviction that they are not squatters.

Landlord Action were dealing with it before the insurance company took over. They knew all the facts and presumably thought the same as they just issued a S8 and made no mention of them being squatters.

22

The situation I had when the tenant let his friends into the property under the guise of “house sitters” I responded by contacting the tenant by phone who wouldn’t confirm he was going to continue living at the property and all his belongings appeared to have gone so I informed him that I would be terminating his tenancy agreement as I believed he was now subletting my property without my authority.
The “house sitters” then received a call from the tenant and realised they could not masquerade as house sitters for a tenant under notice of termination so they aptly re-titled themselves as “squatters” I explained the legality of their actions and presented them with documentation headed squatters in residential property” which is arrestable. I then contacted the council liaison officer who also spoke with the police. The squatters decided to leave off their own accord rather than face a potential arrest by the police

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23

Sorry Geoff but that is not right. Having a clause in your tenancy agreement simply means they are in breach of contract by subletting. Your redress would be to sue the tenant for your costs. It DOESNT invalidate the tenancy. If the sub-letter believed that the person signing the TA was the landlord and had the right to sublet then the tenancy stands and there is nothing the landlord can do about it. The landlord has no direct relationship with the sub-letter so can’t issue them with a valid notice. The landlord CAN issue notice to their own tenant, possibly even a common law Notice to Quit. When their tenancy ends the sub-letter automatically becomes the landlords direct tenant. This all assumes that the sub-letter has evidence that they have been granted a tenancy, (eg TA or bank statements showing rent payments etc). If they dont have evidence it may be possible to treat them as a trespasser but its risky if you dont know in advance that they have evidence as they are protected by the P of E Act 1977 and its a criminal offence to illegally evict someone.

24

Hi.
Are you making any progress with your situation?

25

3 more days until they are supposed to leave - they won’t. Neighbours complaining about heavy cannabis use and parking their vehicles over peoples’ drives so they have to knock on the door to get them to move them. I’ve told them they should be reporting it to the police and it may help to get them out quicker. This isn’t going to be a quick one although as far as the neighbours are concerned they are there as squatters so it should be easy to get them out - we just need to ask the police for help! They don’t understand why I or the agent haven’t been onto this and why it’s taking so long. Ignorance is bliss - they are going to be in for a shock when they realise the reality of how long it will take. How are you getting on?

26

David, I absolutely don’t agree! There is no way that a an individual sub-letter can become an authorised tenant without a tenancy agreement in place.
Has there been a test case to support your statements ?
There are plenty of televised examples of bailiff eviction of so called sub-letters who are infact squatters.
If your statements are correct then we would be over run with sub-letters who ordinarily would not qualify for a direct tenancy
I Think we will have to agree to disagree

27

Sure, let’s agree to disagree, although I would urge you and any other forum users reading this to check the facts of this situation with some other sources. People have been sent to prison for illegal evicting tenants and ignorance of the law is no defence.

EDIT: For example, have a look at this: https://www.landlordlawblog.co.uk/2015/06/08/what-happens-if-you-dont-have-a-written-tenancy-agreement/

28

I’m not a solicitor, but if I’m following the discussion between Geoff and David accurately, you might not be in contradiction:

  • Geoff: F114’s tenant(s) did not have legal capacity to grant a valid tenancy, therefore (I believe) any agreement between them and their counterparties would be void. The process involved in regaining vacant possession might however be where things get murky …
  • David: Should F114 behave plausibly as landlord to the substitute occupiers, then a tenancy agreement could be established without a written agreement. Having looked at your link (written by Tessa Shepperson), there does appear to be a required element of permission underlying the establishment of a tenancy (e.g. a handshake or oral agreement with the person(s) involved). Where this is demonstrable, the present occupiers would neither be squatting nor trespassing …

On balance though: if privity of contract deprives F114 of action against the occupiers under the terms of the tenancy agreement, it ought also to deprive the assuming sub-tenants of any rights of occupation vis-a-vis F114. Their rights would therefore also be for damages against F114’s misrepresenting tenants. However, if otherwise, then surely the relationship between F114 and the present occupiers would have to be governed by that default tenancy agreement. I should imagine whether or not there was a clause in the original tenancy agreement prohibiting sub-letting would be relevant here.

Isn’t the trespassing-or-squatting perspective simply one of action under civil or criminal law ? From F114’s viewpoint, for retrieval of vacant possession of the premises, professional advice seems to concur that issuing a s8 notice is the appropriate way to proceed.

29

Unless it can be shown that the occupiers are colluding with the tenant in the full knowledge that they were prohibited from sub-letting then their tenancy would be valid. This is because they just have to have the reasonable belief that their landlord has that authority and the burden of proof is on the person trying to recover possession to prove otherwise. Given that the landlord doesn’t have to be the owner of the property, normally all that is required is an interest in land to grant a tenancy and even a 6 month AST gives that. F114 behaving as though they were their landlord would just confuse the matter at this point.

30

You can find more information here: https://www.citizensadvice.org.uk/housing/renting-a-home/subletting-and-lodging/subletting/what-happens-if-a-subtenancy-is-unlawful/

31

David: Interesting … on what basis should it be necessary to show collusion ? Obtaining residence through deception or fraud falls, evidently, under a different rubric. In general, it’s very unusual that conducting business without legal capacity is binding for any party involved, innocent or not.

Reading through (later) your CAB reference, essentially:

  • if the head landlord acts in a manner that implies acceptance of the successor occupants as tenants, then a tenancy agreement will be deemed to exist [cf your Tessa Shepperson reference];
  • if not, then possession is obtainable by the head landlord terminating the tenancy agreement with the ‘mesne’ (= intermediate) landlord, with presumably unexpected consequences for the occupants;
  • or, it goes without saying (for F114’s case), whether or not a legit successor tenancy agreement exists, if the occupants in situ breach the (deemed) terms of the assumed tenancy, the head landlord can obtain possession (by appropriate proceedings, as the case may be).

If I’m reading correctly, your line here depends upon F114 having surrendered the tenancy by agreement with the mesne tenant - quoting from the CAB citation:

"Generally, when a mesne tenancy ends, the subtenancy also ends and the head landlord is entitled to get the accommodation back with no-one living it. There are however, some exceptions to this. The main exceptions are:

  • if the head landlord agrees to the subtenancy in some way, or
  • where the mesne tenancy ends with the head landlord’s agreement. This is called surrender."

‘Having to prove collusion’ doesn’t quite read the same to me as ‘some exceptions’ - valuable to know some specifics, though.

32

Hi Nicholas

I’m not a solicitor, but my understanding in relation to your points above are:

  • If a sub-tenant genuinely beleives that the person granting them the tenancy had the right to do so then the tenancy will be valid if the other conditions are met. I have extrapolated this to suggest that collusion with the mesne tenant in the full knowledge that sub-letting is contractually unlawful would have the opposite effect, although I am unaware of the how this arguement can be advanced.
  • The landlord acting in a manor which implies acceptance would include continuing to demand/accept rent from the mesne tenant after discovering the situation. I beleive that the correct process for the superior landlord would be that upon discovery of the sublet, to immediately seek to remove the mesne tenant through the courts and demand mesne profits at the end of the process in lieu of rent. In that case the sub-tenant’s tenancy should end along with the mesne tenant. Care needs to be taken here as serving notice (s8 or s21) on the mesne tenant or agreeing a surrender would not qualify and would validate the sub-tenant’s tenancy. At this stage, I am not clear whether serving a common law Notice to Quit on the mesne tenant would have the same effect.