Protected Tenancies – Ask Sharon


 

Protected tenancies

Protected Tenancies - Ask Sharon Residential Landlord
  ASK SHARON

Scroll down to find the advice you are looking for. Most recent questions and answers are listed first.


Protected Tenancy

Our ideal plot / house (4 bed), is coming up for auction, with a protected tenant who has lived there since 1968 – a single elderly man, who is refusing to let prospective purchasers into the property to view it. The property no doubt is in a poor state inside, as the garden is over-run and the swimming pool derelict. The house is being sold because the owners have gone into receivership. The owners have not stated there is a protected tenancy, but it’s obvious he’ll be protected. If I buy the property and land, can I build a suitable alternative, say 1 bedroom house, on my land for him to move into, so I can move into the house? The land is 2 acres, so there is adequate space for a dwelling of this size.

Protected tenants can create considerable problems for the owners of the property as you clearly realize. He has got a very secure tenancy and cannot really be forced out, unless there is a good ground ( or “cases” as defined in the Rent Act 1977). Cases 11 to 20 are Mandatory cases, so a Court would have to allow possession. I cannot see that any of these apply. We must therefore look at cases 1-10, where the Court has extensive powers. The details of each case must apply and the landlord has to prove it is reasonable that the landlord wants possession. There may be some fault on the tenants part associated with the case.

You state the interior is probably in a poor state, but that the tenant is not allowing viewing. It probably will require some refurbishment to bring it to modern standards, but it may not necessarily be a hazard, which would be one reason you could give for wanting possession. You make a case for eviction on the basis of “suitable alternative accommodation will be made available”. This does seem the answer to the situation, giving you what you want and a very nice place for the elderly person. It is a kind gesture, but you cannot force the tenant to give up his 4 bedrooms, with swimming pool, if he does not want to. He has lived in a large space for 43 years; if you serve him notice and it ends up in Court, I am not entirely sure that a tearful old man, making his case of 43 years residence, would not win. If he has family that come and stay with him, 1bedroom would not be a suitable alternative accommodation, because they will look at all factors.

Try and communicate with him; does he seem amenable to this plan? Would he be prepared to move elsewhere if you pay the deposit and removal expenses? It must be made clear though that you are only wanting to assist him, not to do anything to put pressure on him to move, which could be construed as harassment. Remind him how much cheaper running costs will be, how much warmer because of improved insulation etc. , even reminding him of improved security and how as neighbours, you could assist him, an important consideration as he is getting older. But – if he is not prepared to consider it, be prepared for quite an expensive case with a Solicitor, which may not be successful. You could consider buying it, build the new property and live there yourselves. Not desirable but it may be worth playing a waiting game.


Landlord wants to develop

My mother has a rent act tenancy – she has been living there since 1971. The house is really falling apart but mother is happy with that because she does not want the landlord improving it. He inherited the property as well as the properties either side of her. He has knocked down a garage at the end of my mother’s garden and built a one bed house (taking away some of Mum’s garden). He is also building two flats next door (again he wants to take some of Mum’s garden).

The builders leave all the materials in Mum’s garden. He has taken her gate and fenced it off for the one bed house and she now has to use the gate for the right hand side property. The pathway is not a proper one and is quite dangerous.

He has recently approached mum saying he wants to take her second bedroom (it is a two bedroom flat above a shop) and build a house on top of hers – also taking her loft. He says he would modernise her flat as payment.

We would be very grateful for your advice.

1. If my mother agrees to what has been suggested, should she be seeking some compensation – if so, how much? The flat is in Colliers Wood and probably worth about £200k now.
2. Would this affect her rights as a tenant?
3. Mum might be agreeable to him buying her out, if he wanted to. How much should she roughly ask for?
4. If she agreed to her proposal how would this affect the fair rent?

I am sure you will not be surprised to hear that usually I am sympathetic to the landlord in the cases I come across. However, with this one, I am getting an uncomfortable feeling. I may be wrong, but I am assuming that a lady who has lived in a tenancy for 38 years and who can live with the property falling apart because she does not want it improved, is quite possibly elderly.

The things that have been done and which are now proposed seem to involve some degree of harassment.

I will answer your points, but feel I must make a couple of comments.

If your Mum looks after and takes pleasure in the garden, the point must be made to the landlord that, whilst Mum was happy to be amenable and accept the reduction in garden size, building materials must not be left in her garden. This is affecting her quiet enjoyment of her home; the landlord was out of order in reducing the garden without consultation, but that might be a difficult one to argue as tenancy agreements rarely give full details of the garden area.

The work that is proposed, as well as reducing the size of the accommodation available for her use, sounds as though it would be horrendous to live under. This is why I think it is harassment. I would not want to live through it, and I believe your mum may be older than me. She cannot be forced to give up a bedroom and the loft and should not do so unless suitable arrangements can be made – I would be thinking of alternative accommodation whilst any building work goes on;

Surely they would not do this work without improving your mother’s accommodation, which you have said she does not want.

Now to your questions:

This is going to be disruptive in the extreme. If she agrees to it, she should ask that she be accommodated elsewhere, possibly in a hotel. How much compensation for the loss of a bedroom and the loft will depend greatly on what use she makes of them. If she has no real need of them, but benefits from improvements made, the change may in fact be beneficial to her, not least in cheaper bills. If this case a payment to cover the costs of redecoration, carpets and curtains, may seem fair, particularly if the landlord provides decent alternative accommodation whilst the work is being done.

Your mother’s rights as a tenant would remain the same, provided she moved back to the property. She should not accept a new tenancy for temporary accommodation. The landlords could apply for a new fair rent, on the basis that the property has been improved, but even though an increase would probably be allowed, it is unlikely to take the rent up to market levels – it would take some years for it to reach the market level.

I am afraid I could not tell you how much your mother should ask for, if she agrees to be bought out, which I think is what her landlord wants. She needs to investigate what the available properties are in the area, to ensure that she could be adequately (and hopefully better) accommodated – giving up a home she has had for so long would be difficult and she needs to be sure she could get somewhere she will be happy.

You perhaps need to do some checking – see if you could get an independent valuation of the flat’s worth, with a sitting, rent act tenant and with vacant possession. There should be a considerable difference, and the difference could be your starting point. Also, how much would market rent be, in case the landlord just wants a new tenant who will pay the going rate – again, there should be a considerable distance? Check whether your mum’s income means she would or would not get any housing benefit – again, this could make a difference to whether she stays where she is on a lower rent or starts a new tenancy where she may be paying full, higher rent herself.

I think you and your mum needs to think very carefully about what happens next but if any pressure is brought to bear, she should see a solicitor who specialises in housing law and, being local, may be able to come up with realistic figures if she goes for compensation.


Buying property ‘as seen’

My wife and I are trying to buy a property that has a flat above with a 84 year old tenant who has been living there for over 40 years (protected). We have not exchanged contracts as yet. However we asked the estate agent if we could meet with the tenant and look round the flat.

The tenant is a super gentleman, however the condition of the flat is terrible inside and potentially dangerous. For example, the fuse box is fitted under an old leaky sink, flammable tiles are above the cooker, two rooms are filled, floor to ceiling, with rubbish. And there is more.

The present landlord has never had any safety checks undertaken.

My wife and I would fear for the tenant’s health and health and, if we buy the property, for our own. Is it right to ask the present landlord to show a basic level of safety before we buy? At present he is saying ‘sold as seen’.

Can he legally say that?

Have you not discussed this with the solicitor who is handling the conveyancing? I think that ‘sold as seen’ is mirrored by ‘Caveat Emptor’ – let the buyer beware. I would be unhappy to proceed with this. These situations can become very fraught, as you are now finding with the worry about the safety of the property. As always, when buying and selling, it depends who feels they have the most to lose. Tell the seller you will withdraw if he does not make the building safe. He may feel that he is selling the property at a very good price and therefore does not want to spend the money to do what is necessary – which sounds as though it could be quite a lot of work. Also, having experience of these situations, is it possible that the old gentleman has in the past refused access to his flat to have any remedial work undertaken. He may be a lovely gentleman, but it is surprising how many lovely gentlemen do not want their lives making better. Consider very carefully, perhaps even speak to the old chap again, before you make any final decision. I would not buy it in an unsafe condition, but then, I wouldn’t buy it with a protected tenant either.


Dealing with inherited tenancy

When my protected tenant dies her son will succeed to the tenancy. My understanding is that at this point will we be able to increase the rent to a commercial level that will allow us to start to improve the property.

Our tenant’s son is unemployed and reliant of DHSS benefits. Our property is a three bedroom house so could be deemed larger than he needs. Will this make any difference and in any case rather than rent him the house can we re-house him in a flat?

The son would be entitled only to a single person’s accommodation and local housing allowance (housing benefit) would reflect this. He would become a Statutory rather than Protected Tenant, but would still have some protection, in that whilst you can increase the rent, it would have to be registered as a Fair Rent, which could be a Market Rent. In practice this means the amount by which rent can be increased is likely to be restricted. What the change would do would set up future increases, as you can apply to the Rent Assessment Committee every two years for a rent increase.

As you are aware, your tenant has very good security of tenure. However, Suitable Alternative Accommodation is a case for eviction. However, if the tenant chooses not to accept the alternative accommodation you are offering, it would be up to a court to decide whether the alternative is ‘Suitable’ –factors taken into consideration would include distance from his social network, whether he has the same size garden, whether the new accommodation is close to the bus route.

I think you need to discuss this with the son while his mother is still your tenant. Explain to him that the rent is likely to be increased and that anyway he is unlikely to get the full rent by way of benefit. Also the house would be more expensive to run than a flat. I suggest you offer to pay for his removal expenses. If you make him a good offer he may well be prepared to leave the property. Otherwise you will have to use the court process. Please be careful to do nothing that he could construe as harassment.


How to terminate?

How do I end a tenancy protected by the 1977 Act?

I think the tenant has moved out but she claims that she hasn’t – could this help me?

A protected tenant has very good security. As you mention no particular problems like rent arrears, which would give you a case to evict, I think you will have to bide your time. However, if you genuinely believe she has moved out, then issue a 28 day notice to quit. You cannot change the locks until the notice has expired, and if she contacts you within 28 days to say she is there, you cannot proceed with it.

It depends on why you really want her out, but I might be inclined to discuss this with a solicitor, and possibly make an offer of removal costs, and perhaps payment of deposit on somewhere else – but I think it is unlikely she would accept, as she if she has lived there a long time it is unlikely she would get another property with the same low rent, or of the same size and facilities.


Open market value

I have a property now in the third generation of my family that has been continually occupied by the same tenant for over 30 years. I am now looking to sell the property and wonder what discount to market value I might expect. The tenant is a widow aged 74.

It is difficult to advise as every area will have it’ own market. I would be inclined to speak to a couple of estate agents and get figures from them for a sale when untenanted, and when tenanted. The difference should be the discount. How much that may be will depend on the market in the area.



Sale of home

I have been a sitting/protected tenant in a property since 1980. My partner moved in during 1994 and we have a child.

Back in 2002 we received a letter from the landlord’s solicitors saying we could either buy the property or it would be going on the market and we had six weeks to let them know. Naturally this was a shock and I went to one of the trustees of the property (who is the acting landlord) and lives next door to us – putting in an offer of £200,000. He said he would take the offer back to the remaining trustees and see what they said. Well, we never heard another thing about it. The houses never went on the market and I have since asked (two years ago approx), if the Trustees would consider selling. I was told ‘yes’, but the housing market means the property is now very expensive, that even with a discount it would be too expensive.

Last week I asked an estate agent to value the property (for interest’s sake) and he said £375,000 minimum and max £399,000.

The house has no central heating, no proper kitchen (well not what most families would call a proper kitchen!), it needs re-wiring, the electrics have never been checked the whole time I have been here. Needs plumbing, the sash windows need replacing, the plaster crumbles if you try and put up pictures, no loft insulation. The house in the winter is very cold, ice on the inside. The estate agent said to get the property up to a decent level, it would need £75,000 plus spent on it (before a family would consider moving in). He said the only persons who would consider buying it in its current condition would be an investor.

It is a lovely Victorian semi with the original feature’s (three bedrooms), but as far as the condition goes, it needs a complete overhaul.

Then the landlord knocked on the door (later the same day -) and gave me a letter saying the Trustees (which include him) are ‘folding’ the Trust and will be putting its properties on the market (there are three other properties in our road and one around the corner, all with sitting tenants). The landlord said they hope the properties will be sold as a ‘job lot’ to one company/investor but if we were interested in buying, then we had to go via the estate agents, but not to do anything for about four weeks, as they were working out their market, etc. He said they would be in touch to take photos and to show prospective buyers around once the house is advertised.

This was a total shock! I only asked an estate agent to visit, just to give me an idea of the property price, as I know it needs so much work done on it and I wanted to know a rough price.

I have not mentioned it to our daughter who will be devastated. This has been her home since she was born, and she loves it (She is nine and I know will adapt, but I have not told her anything yet).

My questions are many! If we put in an offer to buy, bearing in mind they will probably put it on the market at the higher level, what discount could we ask for? We have sanded floors, built a decked area in the garden, just tried to generally make the house homely even though it needs so much doing to it. Would it be worth getting environmental health round to look at things, I know the electrics are probably illegal, they are so old!

I am not sure even with a discount and saying we would need to spend at least £75,000 on it to bring it up to what most people would call a ‘normal’ standard, if we could afford it. Should we fight them all the way and hope they will sell it at a much reduced rate?

My concerns are a new landlord, they could make our lives hell and insist on doing up the property whilst we are in it. I could not cope, I am a working mother and my daughter would be so distressed, etc.

Can a new landlord do this? Can he put up the rent?

Part of me wonder’s if an investor buys the property, would he pay for us to move out? If so, what kind of payment?

Naturally, I am very worried about our future housing situation and any help and tips would be really helpful.

Let’s answer the easy one first – would an Investor pay for you to move out? I would think it would depend very much on what he wants to do with the property, whether he would pay you to move and if this was offered, would be subject to negotiation between you.

I think the first thing you need to do is go back to the agent that gave you the valuation – was this for the sale of the property with a sitting tenant, or was it on the basis if this house came on the market, how much would it fetch? There is generally a significant difference in price with a sitting tenant, and obviously, this is the figure you would expect to form part of the discount.

As sitting tenants, you have good security and the right of first refusal. Therefore, get your figures in front of you and discuss fully with the trustees. Also, draw up a list of the improvements you have made, and try and estimate what that has added to the value of the property – for example, I seem to think a TV programme said that whatever you spend on a deck adds the same value to the property. Again, this should form part of the discount.

A new landlord could raise the rents, but he or she would have to do this properly and the amount the rent could be increased would be limited. After that, the rent could be raised every two years but is probably unlikely to reach a market rent level for several years.

As in any house purchase, you can negotiate the price on the basis of what work needs doing, but whether you would get £75,000 off, in its current condition, I could not say. You could ask Environmental Health to inspect, but I am not sure how it would help. They could instruct the owners to do some work, if they find it necessary – but you cannot then include that in your negotiations to buy. Or they may say the house is unfit to live in, in which case you would have to leave. To be honest, from the limited amount you have told me, that does not sound likely.

There is no legal requirement at present to have the wiring checked, though good landlords should, but you as tenant should have told them if you had any concerns about the wiring. My own wiring is 30 years old and I lose no sleep over it, though it was wired to a very good standard when it was done, which you may not know, of course.

Should you fight it all the way? Yes, because you obviously love the house, and hope the trustees will sell at a much reduced rate. Hope, by all means, and the media are on your side at the moment with the talk of prices reducing. However, £375,000 for a three bed semi persuades me that you are in a very highly priced area, which almost certainly means that there is big demand for properties of this type. It may be a question of who can hang on the longest.

I would think if you make an offer they think is too low that they will just put the property up for sale, having given you the first refusal the law requires. You then have to play the waiting game, hoping nobody puts in a higher offer.

If an investor buys it with sitting tenants, he or she is duty bound to let you stay, or offer you suitable alternative accommodation. I don’t think you should be campaigning on the work that needs doing on the one hand, and saying you could not cope with the work being done by a new landlord, on the other. Be clear about what you want but be logical, otherwise, relationships with new landlords could get quite tricky.



A matter of succession

My elderly parents (78 and 91) are protected tenants, having occupied this property since 1975. I moved out in 1990, and then moved back in 1996 because of my mother’s declining health. I am wondering where I stand if either of my parents dies, can I succeed the tenancy? Being chronically ill myself I do not welcome the idea of suddenly having to move when already under the immense stress of having lost a parent. I recently asked the landlord if I could take over the tenancy, but he said that would have ‘implications’ and that we would be better off staying as protected tenants for the time being.

In the unhappy event of the death of one of your parents, the remaining parent, if not the tenant, would succeed to the tenancy. But at this point it would convert to a Housing Act assured tenancy, rather than a Rent Act protected tenancy. Should the remaining parent die, as you have lived there for more than two years, you would be entitled to a second succession, but again, only to a Housing Act assured tenancy. If you take over the tenancy now there is no duty on the landlord to give you anything other than an assured shorthold tenancy, which gives you no security at all, whereas the current situation keeps the rent low and gives you all great security.



Sale of property

My sister has been renting her property in Co. Derry for the past 22 years. Recently, her landlord told her he wants to sell the property and has had an offer of £270K which is the approx market rate for similar properties in her road (with vacant possession). He has told my sister she can buy the property for the same amount but if not she will have to vacate the property. What are her rights please?

I think your sister has very good security and she cannot be forced to move. She may feel happy to move, if the landlord makes her a good enough offer of compensation or suitable alternative accommodation. If she is hassled by the landlord, she should seek some specialist legal advice.


Moving granddaughter in

My father is co-owner of a property that has an 85 year old sitting tenant who has lived there for around 20 years. She has recently allowed her grand daughter to move in despite her rent being paid by the local authority on the understanding she is the sole resident. I understand that sitting tenants rights can be passed on, is there any way of getting her granddaughter to leave the property and preventing her from inheriting sitting tenant status? Surely there must be some way of breaking the cycle otherwise tenants could theoretically hang on to a property for ever?
If my father tells social services about this, are there any risks?

Provided the tenant moved in before February 1989, she is a protected tenant and has succession rights. There is no way to stop the Granddaughter exercising that right legally, though it may be that she would be prepared to forego succession if sufficient compensation is offered. Your father should not be party to anything which appears possibly fraudulent, but after such a long tenancy, it may be fairer to discuss it fully with the tenant and ask what she has advised the council about her grand-daughter. It may be a temporary step only.


Insisting on improvements

Can a landlord insist on doing repairs/improvement when a protected tenant does not want them (in this case installation of central heating)?

It is very difficult. If the tenant is elderly, they may fear the disruption and the possible cost of improved heating. Discuss it with your tenant, try and find out why he or she does not want it done. There may be an easily solvable answer to the problem – paying for temporary accommodation if they fear the disruption, explaining improved energy efficiency may mean bills are not as high as feared.



Landlord can no longer maintain property

My mother is 92 years of age and has been living as a tenant for 29 years. The landlord can no longer maintain the premises and wants to sell them. What rights does my mother have?

Your mother is a protected tenant and has very good security. The landlord can sell the property with a sitting tenant – very often this will deter prospective buyers who see a future with reduced rental income for years to come. However, even if your mother becomes a record-breaker for longevity (and I hope she does!) it cannot be expected that she would live in the property for longer than the next 20 years at most, so may not be as off-putting to a prospective buyer, if he intends to let the property, as it would be for some.

The landlord could provide suitable alternative accommodation, and a court would have to decide it was indeed suitable, in facilities, access, rent and security, However, you probably believe your mother will have no wish to move. I think a court would take that into consideration when looking at any other accommodation the landlord proposes.

How bad is the property? Obviously she does need somewhere fit to live in, no matter how much she likes her current accommodation. She could ask Environmental Services to inspect, they can recommend that work be done and if very bad, may order the work and invoice the landlord. The risk, though, is that they will say it is unfit and put a closure order on. The local authority should then look at providing her with accommodation, but would that be acceptable? Would doing the work whilst your mother was there put her under considerable stress? Remember, what you or I would feel was unliveable, can be very different for the older generation, to whom sheltered accommodation with white walls and laminated floors would seem a nightmare. Be very clear what you want out of any actions you take. However, she has good security and should not be forced into anything.


Intending to be resident landlords

My husband and I are looking to buy a property that has a sitting tenant: a lady in her eighties. I am told by the estate agents that she has no written contract but she has been there since the sixties so I understand she is protected by the 1977 Rent Act.

However, I have looked at a few Government sites which suggest that if we were resident landlords (which is what we intend to be) she would have fewer rights.

There is only one bathroom (although she has a downstairs toilet) which is shared (although I believe she doesn’t use now as the door was boarded up on the suggestion of the police after a break in). She has her own area with her own front door. Can you tell me what her rights would be and if the fact we were living in the property would restrict her rights?

Yes, she is a protected tenant. Unfortunately, you do not make it clear whether there is currently a resident landlord and whether there are other tenants in the property. I think that if you move in, it would obviously affect her privacy. However, I also believe it is unlikely a court would feel that you had the right just to move in and thereby reduce her security, taking her from a secure tenancy to lodger status. Should the lady herself decide that she wishes to leave and you then move in and take a lodger, that is entirely different. I think you should discuss with a solicitor, but I don’t think you should buy with the intention of moving in.



Liability for housing benefit

I am interested in buying a block of bedsits where one of the bedsits is occupied by a protected tenancy, with the tenant on housing benefit. The day before exchange I was informed by the vendor’s solicitors that this sitting tenant has been in arrears for the last 67 weeks and his housing benefit has been revoked by the benefits office – I think the benefits office is chasing the landlord for overpaid rent. I have held back from exchanging as yet, but the vendor wants me to exchange quickly, for obvious reasons and I really want this property. I understand the managing agents have served the tenant with a notice to quit as well.

Am I going to be liable for the overpaid rent to housing benefit office, for rent paid before I was the landlord?

My solicitor is cautious, because he says that this tenant could say that he has not paid the rent because of the condition of the property making him ill and not being able to work etc… and that the tenant could possibly then sue us (the new landlords) for an indefinable amount.

Do you think a court would grant a possession order on the basis that he has not paid rent for nearly one and a half years? His rent is £60/week, with his own basement kitchen and communal bathroom facilities. The agent has also told me that there are complaints from other tenants about his behaviour and the fact that he only wears boxer shorts around the house!

The fact that there are repair issues should not really affect the rental liability; had the tenant wanted to address the repairs, he was entitled to undertake the Right of Repair, which means putting repair issues in writing to the landlord; writing a second (perhaps a third) time saying that he will have no alternative but to exercise his right to repair if the work is not done within a set timescale; a third (or fourth) letter saying that if work is not done by ………., the tenant will ask a builder to do the work and will withhold rent until the cost has been recovered in full.

Tenants rarely understand that the work should be done before rent is withheld, and without those letters, asking the landlord to do the work, reminding him it needs doing, stating intention to Right of Repair etc., a court should not believe it is acceptable to stop paying rent.

Housing Benefit should not be pursuing the landlord for an overpayment if the rent went direct to the tenant, which presumably it did as he has not paid for so long. There should be no question of them pursuing you for it.

I think a court would grant possession as despite the very good security for a protected tenant, breach of the obligation to pay rent is one of the few cases that can be brought, although it has to be a breach and reasonableness that you want possession – I think failure to pay rent for over one year should be considered very seriously. But if you have to do this as the new owner, you would have to start the process.

Forgive me saying, but the vendor appears to be fully aware that you are strongly tempted by this property and is hoping you will take it, despite this problematic tenant. If the current owner has done what he should, then the tenant will be evicted by him and the court costs will be his, not yours. Is he likely to drop out if you say you will not exchange until the tenant has gone? It may be a gamble, but it is better to have a clean start.

He should also be the one speaking to the tenant about his behaviour, rather than leaving you, the new owner, to approach him about this matter. He needs to be aware of what the other tenants in the property are unhappy about, including the boxers, as they could call the Police, if it is offensive. But again, should not be your problem.



What if no rent is charged?

My wife jointly owns a property with her brother, having inherited it on the death of their great-grandfather back in the 1980s. The property was held in trust until they were both 21 years old.

The current occupier lived in the property with their spouse prior to the change of ownership. They initially paid rent under the management of the trust but this was waived by my wife and her brother when the property came out of trust management and after the occupiers spouse had died.

Currently no rent is taken, but council tax and utility bills are covered by the occupier, and buildings insurance is covered by the owners.

The house is mortgage free but is Grade II listed and now requires expensive repairs and renovation (listed roof repairs, central heating installation and the like). The owners recently paid for complete rewiring of the property on safety grounds but the outstanding repairs are beyond their means without a rental income. Meanwhile an appropriate rent seems to be beyond the means of the occupier without some form of aid or grant.

The occupier (an elderly pensioner) has been offered sheltered housing by the local authority but is adamant that he will not move.

What are the legal rights of the occupier with regard to remaining in the property without the agreement of the owners?

Can the occupier be defined as a ‘protected tenant’ even though no rent has been paid for over 10 years and there is no written tenancy agreement? What specific rights would a ‘protected tenant’ have in this regard?

What are the legal rights of the owners to sell the property and should the owners decide that they want to sell the property is there a valid process of eviction they should follow?

Very, very, tricky. The occupier could argue he had paid ‘rent in kind’ by looking after the property, maybe bringing in that work has been required and his presence has saved further deterioration. I do not think you will get very far with the argument that he is there without the owner’s agreement, in that clearly there has been agreement for many years. My initial thoughts are that you should apply to the rent assessment committee, but whether they would feel it was possible to impose a rent after 10 years without, I am not sure.

You could sell the property with a tenant, though I think this would be reflected in the price you obtain and I must be honest, my advice to a potential buyer would be don’t touch it with a barge-pole!

You could try and evict but you would need to have a case and prove reasonableness. From the details you give, I cannot see that there is a case you could use.

Have you tried to discuss this with the tenant? He may feel that paying rent is not unreasonable and may be entitled to Housing Benefit, though this would require that a tenancy agreement be produced. My only other advice would be to see a specialist solicitor, but really cannot think of anything you can do at this stage.



Lifetime tenancy agreements

I am interested in buying a property, which is for sale at auction, and is being sold with a lifetime tenancy. My query is: does the lifetime tenancy only expire on the death of the tenant, or can the tenant revoke it of his or her own accord should they choose to move?

Depending on circumstances, death of tenant may not end a lifetime tenancy, as there may be a right to succeed, should someone move in to provide care. As far as I am aware, a tenant cannot be forced to keep a lifetime tenancy against their will, but the way this would be revoked would be by moving out. I would be very cautious about suggesting or acting on this, as it could very easily be misconstrued or misinterpreted by a relative or social worker that someone has been intimidated into leaving a very secure, cheap tenancy to maximise the investment potential. If you decide to buy, I think you need to think of it in the long term and if you get it cheap enough, don’t think of a profit from it just yet.



Protected tenant in arrears

We bought a property in 1991 when we inherited a protected/sitting tenant. We have no tenancy agreement. The tenant regularly falls into arrears with his rent, and then pays us a lump sum which does not fully cover his arrears. We are not sure of our rights with regards to evicting a sitting tenant. What is the legal procedure when he falls into arrears?

Also we are concerned that the present tenant will try to pass on his occupancy of the flat to a next of kin. How can we stop him from doing this?

With protected tenancies, there is a case to evict using rent arrears, but that is a discretionary case and a court would have to decide whether it was reasonable. You do not specify any amounts, and neither does the case, but as I do not have figures, it is difficult to know how serious it is. I do not know your client, but as a discretionary case would need a court to rule, is it likely that an elderly person could turn up, close to tears, apologising for the late payments and have a court rule it reasonable to evict?

Only you know the severity of the situation, but under the circumstances I have outlined, possession may not be granted. You must have clear rent records and when he pays short, write and ask for it. If you do ever get to court, clear rent records would help.

I am afraid there is nothing you can do if there are succession rights. Did you receive any paperwork relating to the tenancy when you bought the property, as if the tenancy started after 1988, it may be an assured tenancy, in which case, eviction is slightly easier? Did any paperwork indicate whether this was the original tenant, or is he there thanks to a succession? You may find it beneficial to speak to a solicitor specialising in housing law, but I think I am correct in what I say.



Which date?

In a recent reply you said ‘protected tenancies must have started before 1977’. My understanding, having a protected tenant in one of my properties, is that protected tenancies existed up to 1989. My tenant has a tenancy dating back to 1983. Please would you clarify.

My sincere apologies for misleading you – I can only assume it was the heat addling my brain. A protected/regulated tenancy must have started before 15 January 1989 but is regulated by the 1977 Rent Act. Sorry about that.


Not living in premises

I have just acquired a house in multiple occupation. One flat is let to a protected tenant who is clearly not living in the property but uses it for storing boxes of books. The rent he pays is £14 a month – the last registered ‘fair rent’. I have subsequently applied to the Rent Service to have this increased.

The flat does not have a bed in it, or food, and is in a very poor state of repair. I write to the tenant at the property as he obviously will not tell me where he actually lives. I need to gain access to check the safety of the property, but he rarely responds. What should I do?

I think you need to see a solicitor. A requirement of a tenancy is that the premises is being occupied as a home – it is difficult to see how this could be the case if there is no bed. It is obviously important that you inspect the property to ensure there is no deterioration due to necessary repairs being left. Sorry I cannot be more help but I have checked the booklets I use and they seem to offer no solution. I did wonder about the low rent, because if the rent is less than two thirds of the rateable value on the ‘appropriate day’ then it cannot be classed as a protected tenancy – but as the appropriate day for calculating this is 23 March 1965, it is difficult to say whether this would apply to your position. A solicitor should prompt a response on the inspection for repairs/safety, and may be able to advise on the position where there is a non-resident tenant.

As you are receiving rent, you cannot really issue a notice to quit on the basis that you think the tenant has abandoned the let. I am afraid I think there is little you can do here, though it may be worth considering offering to buy his tenancy from him should the solicitor not come up with anything else.



Northern Ireland rent control

I am in a tricky situation regarding a property I bought in Northern Ireland. The solicitor acting on my behalf did not do a search to find out if the property was rent control. It is. If I had known this I could have had the rent control removed before a tenant moved in.

Now the rent I can charge is considerably lower than the open market rate and it is not going to be possible to sell the property until the tenant leaves.

I have asked the tenant to sign a new lease which would remove the rent control but she has refused on advice from a housing association. Meanwhile I am in the process of suing the solicitor and the letting agency for compensation, but this is a long process.

The tenant can now only be evicted under special circumstances.

Do you have any advice on this situation?

I am afraid not. As you have a solicitor handling the matter, I think it is best left to him. You can sell the property with a sitting tenant, but would almost certainly make a loss.


Information needed

Where can I get information on protected tenancy (since January 1979 – reserved rent £3,796 per annum) as there is a property up for auction and I know nothing about this subject.

The ODPM has a booklet on the subject, Regulated Tenancies, which can be downloaded from its website.

You will generally find that the rental income is limited and that you will be unable to evict without a good reason. There is also a right of succession. Before you buy, you need to know as much as you can about the tenant. I would say that if an old lady aged 97, living alone, you should be OK. A married couple in their 5’s or 60s could mean they will be there for quite some time.


Rent arrears

We recently purchased a property comprising three self contained flats. One has a tenant with a secure tenancy.

Since our ownership began, the flat has been empty, and our only contact is a niece of the tenant, for whom we have a telephone number. Despite repeated requests, the niece is vague about the whereabouts of the tenant. She is an old lady, and despite the council paying her rent, we have not received any.

We have made requests by phone to the niece, and on completion our solicitors gave her all necessary bank details in writing.

We have two questions. Are we in our rights to serve notice to quit based on the abandonment of the flat and the failure to pay any rent? Secondly, if we cannot evict, can we put the rent up and how? According to the rent office website the property is not registered for a fair rent.

There are a couple of things to do:
• Issue a 28 day notice to quit, as you believe she has abandoned; and
Go to the ODPM website and obtain the booklet Notice that you must leave.

If you are not receiving any rent, then you are entitled to serve her notice using case 1 – that the tenant has not paid the rent.

How do you know she is being paid rent by housing benefit if you are not receiving it? They will not discuss her situation with you, but is the niece saying they are paying it? Is she getting it and cashing cheques? You can write to the housing benefit section and ask that the rent be paid direct to you as she owes in excess of eight weeks rent arrears. Send copies of warning letters you have sent. Although the rent is likely to be low, it will at least give you something.

Continued failure to pay you the rent may indicate that housing benefit is being paid elsewhere – say to a care facility.

Rents do not need to be registered; where there is no registration, you can increase the rent if the tenancy agreement states that you can. If the agreement does not allow for increases, you can:
make a formal agreement with the tenant to increase the rent;
ask the rent officer to register a rent.

If you ask the rent officer to register a rent, you can then increase it every two years, but the figure used in increases may only be in the region of 10 per cent and it will take some time for the rent to reach market rent levels.

 


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