Here is a question to the blog clinic fast track from Nathan (not his real name), who is a landlord in England.
We have a problem. We are on sabbatical leave overseas, and in January 2023 we rented part of our principal home in England to a person for 4 months (Feb to May).
We have not met this person physically because our study leave started in Sept 2022. (Before she moved in Feb, we had a friend living in our home).
In the emails in Jan, we explained to this person that she was excluded from using our main bedroom, that she could not remove clothes and personal belongings from our furniture, and that she had to give access to the kitchen to our guests in the basement flat which we rent out because the flat has no washing machine.
So, our guests in the basement flat can use our washing machine, which is in the kitchen of our principal home upstairs.
Further, we told her before she moved in that we will be back in our home in April for Easter break for a short visit, and we agreed we would share our home during that period.
After this person moved in, in Feb, trouble started. She does not pay the rent nor the gas and elec. bill as agreed (we pay all the other bills), complained about the guests in the flat sending her messages to use the washing machine, or asking her to keep the music down, and sends horrible emails threatening us and insulting us.
The question is because during the 4 months, we will only be there for one weekend, is this person a tenant or an excluded occupier?
We have everything in our home.. documents, clothes, personal objects, etc. Can we use a notice of peaceful eviction to ask her to leave, after giving her reasonable notice? And if she refuses to leave, can we close the property?
She says she is “10 steps ahead of us”, and will leave only with court eviction. She has been so hostile we are afraid to share our main home, bathroom, and kitchen with her when we are there in April. Please help.
Additional comments
- This person has also asked someone we know to move in, while asking that person to tell us she was not there – we have that on record by that person..
- Because this person does not let our cleaner in , it becomes very difficult to be able to use the flat in the basement because the cleaner cannot do the washing.
Answer
This situation is perhaps a classic example of what not to do when renting out your own home. And also how not to instruct someone to give legal advice.
- You have not told us how you found this person (who I will refer to as A) – for example, if it was it via a letting agent, an advertisement, a recommendation from a friend, or via a platform such as Airbnb
- You don’t appear to have done any checks or referencing on A.
- It does not look as if you gave A any written agreement – or if you did, no mention of it was given in your instructions.
- You have left all your own possessions in the property for this person to use, including it would appear your personal documents
- You are clearly unfamiliar with the rules which apply when renting out property.
Background law
Let’s start by considering what type of agreement this is. This is essential as your legal rights will depend on the type of occupation A has.
As your property is in England (the law has now changed in Wales), there are two types of occupation:
- Tenancies, and
- Residential licenses
A tenancy is a type of ‘legal interest in land’, which is a kind of ownership. Under the Law of Property Act 1925 sq, there are two types of ownership of land:
A tenancy is a type of leasehold. It is different from long leases as the term is much shorter (ie normally six months rather than 99 years), but it is essentially the same occupation type
A residential license is where the occupation is not a trespass because the occupier has the landlord’s permission.
Note that I have a free guide on my Landlord Law site which will help you work this out. You may also want to take a look at this post.
When renting a property, you have to work within the system and rules that we have in England. You cannot create your own – if you try to do this, they will be interpreted within the existing legal framework. Which will probably result in the parties legal rights and obligations being different from what you had intended.
This is why it is really important that people take a bit of time to read about the rules that apply when renting property before doing anything.
If A has a residential license
From what you say, it looks as if you assumed that A had some sort of informal permission to live in your home for a limited period of time. However, the problem is, that in England when you allow someone to live in a property for a rent, the default position is that they have a tenancy.
In the 1985 case of Street v. Mountford, the Court held that one of the main characteristics of a tenancy is ‘exclusive occupation’. Which is the right of the tenant to keep everyone out of the property – including (and perhaps especially) the landlord.
So from your initial instructions, it looked as though you had granted A a tenancy, notwithstanding your intentions (in the case of Street v. Mountford, the landlord’s intention was to grant a residential licence but the Court decided otherwise).
However, in the additional comments you sent later, you mentioned a cleaner. If a condition of A’s occupancy was that she must allow your cleaner access, then this could be a residential license rather than a tenancy.
If an important part of the occupation agreement is that services are provided which require the landlord’s servants or agents (eg a cleaner) to enter the property – then this cannot be a tenancy. As the occupier will not have ‘exclusive occupation’. This is one reason, for example, why hotel room guests do not normally have tenancies.
It’s impossible to say for sure in your situation as I do not have enough information.
The fact that you agreed that A would let you stay in the property may also go to show that the agreement was intended to be a residential license, but it is the requirement to allow access to the cleaner which will be the clincher. If you are able to prove this.
Could A be a lodger?
Often when homeowners share their home with someone, different rules apply. In particular, the rules about recovering possession of the property.
Under the Protection from Eviction Act 1977, in most cases, it is illegal to recover possession against a tenant or licensee’s wishes, without getting a Court Order first. However, in section 3A of the act, there are some exceptions, one of the most important is where the occupier is a lodger.
This will be where:
- The lodger shares living accommodation with the landlord, and
- Immediately before the license or tenancy (as a lodger can have a tenancy) was granted, and also when it comes to an end, the landlord lived in the property as their ‘only or principal home’
However, it seems clear from your comments above that you were not actually living at the property at the time it was let to A.
You say you were ‘on sabbatical leave’ and later that you are on ‘study leave’. It is, I suppose, possible that the property could be deemed to be your only or principal home even though you were actually living elsewhere at the time if this was on a temporary basis, but I have to say I think this is unlikely. The wording in the act is ‘occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part‘, which I think must mean actually living there.
This is something you should take further advice on. If you can show that A is a lodger, you may be entitled to evict her without getting a court order first, using the procedure described in my Lodger Landlord website here.
However, if you were to use this procedure if A was NOT a lodger, she would be entitled to go to court and claim compensation and maybe a Court Injunction ordering you to let her back in. So you need to be really sure of your position before using this procedure.
If A has a tenancy
If A has a tenancy this is going to be difficult for you. If the tenant refuses to vacate, it will take some time to evict her, and you can forget about recovering the property in May.
There are only two ways you can legally recover possession from a tenant
- By the tenant moving out voluntarily, or
- By the tenant being physically evicted by a court bailiff (or High Court Enforcement Officer) on the authority of a Court Order for Possession.
There is also the fact that if she has a tenancy, A will have the right to keep out, not only you, but also the people who live downstairs, which will put you in breach of your agreement with them that they can use the washing machine.
Let’s take a look at your options to recover possession
Recovering possession
If A has a tenancy, then there are two grounds that you can use:
- Section 21 – although you cannot serve a section 21 notice until the tenant has been in occupation for at least four months, and
- Rent arrears – which may be the ground that you have to use.
If A has a residential license, then this can be ended by a Notice to Quit after the fixed term of the license has ended, following which you can issue proceedings if A has failed to vacate. A Notice to Quit, by the way, has to contain specific information and is not just any old notice asking someone to leave. You can read about Notices to Quit here.
Or you may be able to just issue proceedings if A fails to leave after her agreed time at the property comes to an end. But serving a Notice to Quit first is the normal procedure.
Whichever procedure you use, and whether A has a tenancy or a residential license, obtaining a possession order through the courts takes a long time. It will be least six months and it could take up to a year.
Whatever you do, though, (unless A is a lodger and you follow the proper procedure first) DO NOT just change the locks and lock A out. This is both a criminal offence and will make you liable for a financial compensation claim by A.
Final advice
The information you have given is too vague and unspecific to be able to advise with any certainty, so my main advice is that you should consult a solicitor. A solicitor who specialises in Landlord and Tenant work.
You will need to provide this solicitor with:
- A copy of any agreement signed with A, if any
- They will need to see all emails and letters exchanged before A moved in, particularly if there is no written agreement, and
- Records (if you have any or can remember) of all discussions you had with A about their occupancy of your property, in particular before they moved in
- Details of what the agreed arrangements were about the cleaner and whether this was an integral part of your agreement with A
- Details of your living arrangements immediately before A moved in (just in case you are able to prove that A is actually a lodger)
- Copies of emails with A since she moved in.
The solicitors should be asked to advise:
- On the type of occupation A has – is she a lodger, a residential licensee or a tenant?
- What procedure would you need to use to recover possession if A fails to vacate in May – this will depend on what her occupation type is
Who should you speak to? I would recommend that you speak to solicitors who you will be able to use to evict A later, should this be necessary.
One option would be to speak to Landlord Action. They specialise in landlord eviction work and have a free initial advice service. Or we have a paid solicitors telephone advice service on Landlord Law. Any of our panel solicitors would be able to give good advice in your situation.
However, do not expect easy answers. It sounds like A is minded to be difficult, and unfortunately, you have not acted wisely in the way you have dealt with this.
Good luck.
