Residential property: recovering possession in unusual circumstances

26 April 2024

Terminating tenancies and recovering possession of a property can be challenging, even when a landlord appears to have complied with all statutory obligations and a written agreement defines the terms of occupation.

This note considers some more unusual but not uncommon scenarios and gives guidance on how to approach matters. As always, specialist advice from a property disputes lawyer is recommended, as the smallest detail can have the largest effect.

What happens when the landlord allows a family member or friend into occupation?

In such situations, there is generally no intention to create legal relations between the parties, which points to a licence (or permission) to occupy. The fact that the transaction is between members of a family or friends does not prevent the creation of legal relationships, such that a tenancy might exist if the occupation is at a rent, with exclusive possession granted to the occupant.

With a licence arrangement, the licensee will likely be classified as an "excluded licensee" under section 3A of the Protection from Eviction Act 1977 (PEA 1977). Here, notice may be given orally, but if there is a written agreement, the landlord needs to observe any stated contractual provisions.

If the licence is an excluded licence, then the licensor will not require a court order to evict lawfully. In principle, steps can be taken to exclude the occupier by, for example, changing the locks. However, any such action is subject to the minimum safeguards in section 6 of the Criminal Law Act 1977 (CLA 1977).

Proceedings may be issued as an ordinary possession claim, but they can also be issued as "a possession claim against trespassers."

What about arrangements with a lodger?

A lodger arrangement usually occurs when a landlord lets out a spare room in their house or flat, but the landlord does not grant exclusive use and shares other accommodation with the occupier. This arrangement is often an excluded licence.

The correct notice that the landlord is required to give to the occupier as licensee will be as set out in their written lodger agreement. If the notice period is not set out in the agreement or there is no written agreement, the landlord must give the occupier a reasonable period of time to leave.

If the licence is not an excluded licence and is a periodic licence, the statutory minimum notice period and giving prescribed information requirements will apply as set out in section 5 of the Protection from Eviction Act.

For an excluded licence, there is no legal requirement to obtain a possession order, but resident landlords must ensure that they do not commit a criminal offence under section 6 of the Protection from Eviction Act when evicting the licensee. Therefore, the landlord must obtain a court order unless entry can be obtained peacefully.

The landlord must also take reasonable care of any belongings the lodger has left at the premises and make arrangements for the lodger to collect them within a reasonable period.

What happens if a tenant vacates but leaves a spouse or civil partner in occupation?

The non-tenant spouse or civil partner who stays in occupation will likely have home rights and will be deemed to occupy on behalf of the absent tenant while the marriage or civil partnership lasts.

Where the parties are cohabitees, the cohabitee of the departed tenant, who remains in occupation, has no automatic rights to continue to occupy the home but can apply to the court for an occupation order.

The continued occupation of the property is deemed to be occupation by the tenant for the purposes of preserving security of tenure as a protected, assured or assured shorthold tenant. Any payment of rent made by the remaining spouse or civil partner will be treated in law as though the tenant made it and must be accepted as such.

If, however, the remaining spouse or civil partner gets behind with the payment of the rent, the landlord can still do one or both of the following: 

  • in the case of an assured (or assured shorthold) tenancy, serve a section 8 notice under the Housing Act 1988 (HA 1988) on the grounds of rent arrears, and/or 
  • in the case of an Assured Shorthold Tenancy ('AST'), a section 21 notice under the Housing Act 1988 should be served if the fixed term has ended.

The landlord can then issue possession proceedings against the departed tenant. The spouse or civil partner remaining in occupation should be joined as a defendant.

A spouse or civil partner who remains in the matrimonial home after their former partner has left and terminated the tenancy, for example, by serving a notice to quit, has no continued rights of occupation.

A joint tenant acting alone cannot end the joint tenancy by means of a surrender, but if the tenancy is periodic, just one joint tenant can bring the whole joint tenancy to an end by giving the landlord a notice to quit.

What happens if a tenant vacates but leaves another family member in occupation?

The situation will be different if the family member remaining in occupation is neither named on the tenancy agreement nor is the tenant's spouse or civil partner.

An example would be where a mother, named as the sole tenant under the terms of an assured shorthold tenancy, vacates the premises but leaves her adult son (not named in the agreement) in occupation. In these circumstances, the mother may request the tenancy be assigned to her son's name or a sub-let to him.

Most assured tenancies and assured shorthold tenancies will contain an express clause prohibiting the tenancy being assigned (or sub-let) without the landlord's consent. The landlord has an absolute right to refuse a request for such an assignment or sub-letting if the tenancy is a periodic assured tenancy or assured shorthold tenancy, and their refusal does not need to be reasonable.

To terminate the tenancy, the landlord may be able to serve; 

  • a section 21 notice under the Housing Act 1988 if the tenancy is an assured shorthold tenancy, or
  • a section 8 notice if the tenancy is an assured tenancy or assured shorthold tenancy, relying on Ground 12 as set out in Schedule 2 to the Housing Act 1988.

The landlord may be able to rely on Ground 12 of the Housing Act 1988 as a ground for possession if the tenant has assigned, sublet, or parted with possession in breach of a term of the tenancy. However, Ground 12 is only a discretionary ground.

A tenant who has sublet the whole of the premises should be named as the defendant in any proceedings as they are the person in possession against whom the landlord has an immediate right of possession. However, copies of any notices and the court papers should be sent to the occupier as they can apply to the court to be added as a party to proceedings. The order for possession operates against any person on the land; however, if the occupier still does not leave, it will be necessary to instruct the court bailiffs to enforce the possession order.

What happens if the tenant loses capacity?

The Mental Capacity Act 2005 (MCA 2005) establishes a legal framework for making decisions on behalf of people who lack the capacity to make certain decisions for themselves. There is a presumption that a person has capacity unless proven otherwise (section 1, Mental Capacity Act 2005). A person is considered to lack capacity if they are unable to understand the information relevant to that decision, retain that information, use or weigh up that information as part of the decision-making process, or communicate that decision.

If a landlord has concerns about the tenant's capacity, they may wish to investigate whether someone else has lawful authority to act on the tenant's behalf. This may be the case if the tenant has a registered Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA). A search can be made at the Office of the Public Guardian to see if a registered EPA or LPA exists.

If there is no LPA or EPA, an application to the Court of Protection (COP) may have been made for an order giving authority to deal with the specific issue or, more generally, to appoint a property and affairs deputy for the tenant.

The landlord could consider contacting the local authority's Social Services Department to see if they have been involved with the tenant recently.

If the landlord needs to issue court possession proceedings, a different procedure will apply depending on whether a deputy has or has yet to be appointed.

The landlord may have to face a situation where there is no one with authority to act on behalf of the tenant lacking capacity, and he wishes to serve a statutory notice on that tenant. If a tenant lacks the capacity to terminate the tenancy by notice (or by surrender), an application might, in some circumstances, need to be made to the Court of Protection for a declaration that it would be in their best interests for the tenancy to be ended.

The service of a notice to quit or a section 8 or section 21 notice under the Housing Act 1988 is a unilateral act by the landlord. Although the tenant may not have capacity to understand that the effect of the notice is to terminate their tenancy, there should, in principle, be no difference in the method by which the notice should be served on a tenant who lacks capacity. If the landlord knows that there is an attorney or deputy representing the tenant, or social services or another family member is involved with the care of the tenant, then the landlord may wish to consider notifying them and ensuring they receive a copy of any notice.

A party, or an intended party, who lacks capacity to conduct the proceedings is called a "protected party". A "protected party" must have a litigation friend to conduct proceedings on their behalf. Unless the court orders otherwise, until a litigation friend has been appointed: 

  • any step taken by a protected party in litigation will have no effect, 
  • a party wishing to bring a claim against a protected party may not take any step in proceedings other than issuing and serving a claim form, or applying for a litigation friend to be appointed.

The tenant may agree to be assessed under the Mental Capacity Act 2005 and appoint a litigation friend if appropriate. If the tenant does not have a litigation friend who can be appointed, then the court can appoint the Official Solicitor.

However, if the tenant refuses assessment and there is still concern about their capacity to conduct the defence, it may be appropriate to consider applying to the court for directions in this respect at the first hearing.

The landlord may also need to be aware that the tenant may raise a disability discrimination defence under the Equality Act 2010 (EA 2010), if the landlord takes steps to obtain possession. The landlord's decision to evict a disabled occupant will not contravene the provisions of the Equality Act 2010 in relation to disability discrimination, provided that the landlord can show it is a "proportionate means of achieving a legitimate aim."

What happens if a tenant is sent to prison?

If the landlord knows which prison the tenant is in, they can consider making contact to try to ascertain the nature of the offence, whether the tenant is being held on remand or has been sentenced, the likely length of the prison sentence, and how the tenant intends to pay the rent while in custody.

If the landlord does not know the whereabouts of the tenant, the landlord can consider trying to locate them using the Prisoner Location Service.

If a tenant has been sent to prison (whether on remand or following conviction), the most likely ground(s) to recover possession under Schedule 2 to the Housing Act 1988, which will apply, is rent arrears. However, if the tenant has lost their job due to imprisonment, then they may be entitled to receive housing benefit.

The tenant may agree to an express surrender of the tenancy, and the landlord may consider asking the tenant to sign a deed of surrender, with an agreed date for possession.

It is also possible for there to be an implied surrender if the tenant has abandoned the premises with no intention of returning to reside there. However, the problem is that often, the case is not clear-cut, as the tenant in prison may later argue that their intention was to return on their release from prison.

What happens on the death of a tenant with a member of the family/partner/carer remaining in occupation?

A tenancy will not automatically terminate when the tenant dies, but there are circumstances where security of tenure will be lost by reason of the tenant's death.

If the tenant leaves a will, the tenancy will pass to the tenant's executors; however, if there is no will and the tenant dies intestate, the tenancy passes to the Public Trustee until letters of administration are taken out.

If the landlord wishes to recover possession of the property after the tenant's death, the landlord may need to consider whether the tenancy will devolve by survivorship to another joint tenant. Another occupier remaining in occupation may have a statutory right to succeed to the tenancy.

The statutory succession rules differ depending on which type of tenancy the deceased tenant held.

What happens where the tenancy has only been granted by one rather than both joint owners?

The situation may arise where, although the property is jointly owned, the tenancy agreement has only been granted by one, rather than both, joint landlords. For example, this may be the case where a husband and wife co-own a property that is let to tenants. Only the wife is named as the landlord on the tenancy agreement.

In these circumstances, where only the wife is in the position of the landlord, then arguably only the wife needs to be named on the notice and in any proceedings as the claimant.

What happens if the landlord's name is wrong on the tenancy agreement?

Where the wrong landlord name has been included in the tenancy agreement, some practical steps the landlord may wish to consider are: 

  • to first write to the tenant to explain what has happened, 
  • to serve a section 48 notice under the Landlord and Tenant Act 1987 on the tenant, furnishing the tenant with the correct name and address of the landlord for service.

The above steps will not necessarily cure the error in the tenancy agreement, and the landlord may still face difficulties and delays with obtaining possession if the tenant challenges the landlord's right to possession. It may also be prudent to consider clearly setting out what has happened in the possession proceedings and adducing relevant documents as appropriate to make the position clear to the judge.

Where the landlord has taken a tenancy deposit from an assured shorthold tenancy tenant and the wrong person is named as landlord in the tenancy agreement, the correct landlord may need to consider whether the prescribed information given to the tenant at the start of the tenancy is defective and whether it complies with the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (the Prescribed Information Order 2007).

What happens if the tenancy is an unlawful subletting?

A tenant may face a situation where they have been granted a tenancy by someone who was not permitted to grant it. An example is when the tenant unlawfully sublets rooms in the property to unsuspecting sub-tenants in breach of their assured shorthold tenancy agreement. In this situation, there will still be a contractual relationship between the tenant and the unlawful subtenants. However, the tenant may be in breach of their tenancy agreement due to the unlawful subletting.

If it is the case that the tenant is living at the property with the subtenant(s) and shares living accommodation with them, then depending on the facts the subtenant" may be a lodger with no long-term security of tenure. If this is the case, the "landlord" (the tenant) need only give reasonable notice and/or serve a notice to determine to end the licence if the licence is not excluded. If, on the other hand, the "landlord" (the tenant) does not live on the premises, depending on the facts it may be that the subtenant has an assured shorthold tenancy of their room with shared use of the common parts of the property (for example, bathroom and kitchen) with any other subtenants living on the premises. If the subtenant has an assured shorthold tenancy, it can remain in occupation until the "landlord" serves: 

  • a section 21 notice under the Housing Act 1988, or 
  • a section 8 notice under the Housing Act 1988.

However, the problem for the subtenant is that their occupation rights are vulnerable to being terminated when their landlord's tenancy with the "real" landlord (the superior landlord) is terminated. Section 18 of the Housing Act 1988 does not afford protection to a subtenancy which has not been lawfully granted.

If the superior landlord obtains a possession order against the subtenant's landlord, then the bailiff will be empowered to evict whoever they find on the premises, although the subtenant would have a claim in damages against the tenant due to the illegal sublet.

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