Lodger not leaving property (UK)

Question

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

Answer 1

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.

Answer 2

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?