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I have a property that I rented out to two people in a joint and several manner in England.

One of the named tenants left and someone else took their place and paid half of the rent to my managing agent. However, nothing was changed with regards to the assured shorthold tenancy (AST).

The remaining named tenant gave formal notice to leave and the notice will expire at the end of August. She also gave notice to the other occupier to leave last month. We believe the other occupier is to be treated as a lodger, even though they pay their rent to my managing agent directly, rather than via the renaming, named tenant.

The problem is that the other occupier does not want to leave and we believe they will be difficult to evict as they are no longer replying to any messages.

Is it correct to treat this occupier that may refuse to voluntarily leave as a lodger and, as such, treat the occupation as an excluded tenancy?

At the end of the notice to end the AST, can I let myself into the property? Can I change the locks? Can I non-forcefully evict the occupier? Can I turn off the electricity supply? Would the police help with this as a trespass if the occupier does not leave?

Presumably, all costs are liable by the named tenants as the AST stated the property was to be returned vacant?

I plan to sell the property once vacant.

Thanks

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    I assume you don't have legal expenses cover, so ask your management agent if they have as your proposed plan needs proper legal advice.
    – user35069
    Aug 23, 2023 at 20:21
  • How was the agreement described to the new occupier when they moved in, and in subsequent paperwork to them from the resident or the agent? Did the tenant who was resident for longer advise or request - to you or your agent - that they were taking on a lodger? In short, does the occupier know they're a lodger of the tenant, or might they have grounds to believe they're a tenant? Aug 23, 2023 at 21:25
  • @ItWasLikeThatWhenIGotHere I think it was described as a tenant replacement but never formalised. I'm not sure of any email trail or paperwork. Would the occupiers belief of tenancy rights make a difference, given there is no formal agreement in his name? Aug 23, 2023 at 21:43
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    @Ukresident3006 - without documentation, about as much difference as your belief that they're a lodger. More if they can show it was described as a tenant replacement. This sounds messy. It sounds like the agency have been receiving money from this occupant without a formal agreement, now expect you to take on the legal risks associated with eviction and someone has come up with the idea of calling the occupant a lodger as a clever ruse. Courts hate that. It's time to start looking at your agreement with them, and at this point I'd be talking to a lawyer. Aug 23, 2023 at 21:51
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    Can I non-forcefully evict the occupier? Even if they were a complete stranger that broke into an empty home yesterday, no. See "monopoly on violence", Hobbes, Weber, etc.
    – KFK
    Aug 25, 2023 at 9:38

2 Answers 2

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You will likely need a court order for lawful eviction

This person is more likely to be a tenant than a lodger since they “took [the] place” of the tenant and you accepted payment of rent from them - they did not pay rent to the other tenant as they would have if they were that tenant’s lodger. They can’t be your lodger because you don’t live with them.

They could be bound by the initial term of the AST from the original tenant but it’s equally arguable that they have their own, unwritten AST that runs from when they moved in. Absent a clear indication from them that they agreed to be a joint tenant with the now departing person, it’s probably the latter. If it is, and they have been there less than 6 months then you have no right to ask them to leave.

Whatever the situation, this is not the departing tenant’s problem; it’s yours. A notice from that tenant is not a notice from you.

It’s time to consult a lawyer.

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  • The tenant could have taken on a lodger who lives with them (a lodger of the tenant, not of the owner), but I'm inclined to think that without documentation supporting this the OP is likely to be on shaky ground. Agree with the last sentence. Aug 23, 2023 at 21:56
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    Yes, for clarity, the lodger would be a lodger of the tenant, not my lodger. Thanks for the advice Aug 23, 2023 at 22:03
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Firstly, if the remaining person pays their rent to you (via your agent), then they are your tenant, not your other tenant's lodger.

Ideally, when one tenant replaces another, a new tenancy agreement should be created to replace the existing one, as it avoids the legal uncertainty that you now find yourself in.

A tenancy (specifically, an assured shorthold tenancy) exists, whether or not it is written down, if all the relevant conditions are met - and the fact that the tenant is paying rent to you is key evidence of that.

So, assuming that you do want to evict them (and do you, rather than finding a new tenant to replace the one who is leaving?), then a Section 21 notice would probably be the simplest route - assuming you've met all the conditions required for one to be valid.

As Dale's answer mentions, a tenant can't be asked to leave in the first 6 months of their tenancy. And while tenants often treat a section 21 notice as an order to leave, it is not; it's merely a notice that if they don't leave at the end of the 2 month notice period, then the landlord can ask a court to evict them (which can take months).

Related article at Landlord Law Blog: Should you allow your tenant to rent a room to a lodger?

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