Your Questions Answered: What to do with those in situ?

Your Questions Answered: What to do with those in situ?


Author: Bukola Aremu

Social landlords continue to ask an age-old question: what to do with those left in occupation following the death of a tenant, or after a tenant parts with the whole of the property.

Social landlords continue to ask an age-old question: what to do with those left in occupation following the death of a tenant, or after a tenant parts with the whole of the property.

There is not always a simple answer.

In complicated or sensitive cases - where a social landlord would be frowned upon for applying the law in the strictest terms - a number of approaches have been adopted that are not always in the long-term or best interests of the landlord.

So what is the best course of action to take when, for example?

  • your tenant dies and leaves two adult children in situ
  • your tenant sublets the property, leaving a young, vulnerable family that has lived there for some time without the landlord's knowledge

In the first example, both adult children are suspected to lack capacity to hold a tenancy in their own right and a succession has already taken place. Social services recommends a new tenancy be granted to the adult children, as they have lived in the property all their lives and moving would cause them significant emotional trauma.

Taking into account the adult children's vulnerability and the uncertainty surrounding their capacity, a social landlord will more than likely leave them in the property until their mental capacity is determined. Subject to a positive conclusion, they will be granted a starter tenancy.

You may think that as they have no right to succession or as in the second example, they are occupying the property with no leave of licence of the landlord they are unlawful occupiers from the day on which the notice to quit expired, and so standard possession proceedings should be issued to recover of the property to the landlord.

This is correct, but in order to provide a satisfactory reply to a public law defence, a number of factors should be considered internally before issuing possession proceedings, so long as the actions of those in situ do not adversely affect the housing management function of the social landlord i.e. subject to payment of all charges in the interim period and no anti-social behaviour or other breaches of implied terms under the Housing Act 1988.

Landlords often ask us: What type of tenancy, if any, do we give those left in situ in the interim period, which will protect our financial interests and enable us to recover possession in quickest, most cost-effective way once all investigations have been carried out?

Although not an exhaustive list, the following factors should be considered:

  • Without a tenancy agreement, how do those in situ continue to pay rent in the interim period if unemployed and relying on state benefit?
  • By accepting rent after the expiry of a notice to quit (NTQ), will a new tenancy automatically be granted if those insitu do not have capacity to understand that they are residing in the property as unlawful occupiers, and all monies received are for use and occupation only?
  • Should an assured shorthold tenancy be granted in the interim period, so that the above points are satisfied? Would it be more difficult to obtain a possession order?

Be aware of public law defences
Do not grant a tenancy or a licence to occupy.

By granting an assured shorthold tenancy, those in situ are entitled to a minimum six months in the property under Section 20 Housing Act 1988 unless the tenancy is breached under one of the grounds under schedule 2 of Housing Act 1988. Unless the breach falls under one of the mandatory grounds, there is no automatic right to possession.

Although those in situ will be able to apply for housing and other benefits, granting them a tenancy makes it more difficult to recover possession of the property if capacity has been determined insufficient. Landlords should be made aware of the public law defences that may follow should possession proceedings be instigated in a case such as this.

In fact, it is just as likely that public law defences will be used should possession proceedings be issued under a standard possession claim following expiry of a NTQ.

Not granting a tenancy or licence will also avoid delays in possession proceedings, increased legal costs and the possibility of negative publicity. It may be better to allow those in situ to remain as users and occupiers only, until a final decision is made about whether they will be able to hold a tenancy.

After expiry of the NTQ anyone remaining in situ in either of the circumstances outlined above should be told in writing that they are unlawful occupiers, and are occupying the property under use and occupation only, not as tenants. This lets landlords begin possession proceedings immediately they receive information on whether or not tenancy can be granted.

Unlike an assured shorthold tenancy, a landlord will not have to wait a further two months after service of an s21 Notice HA 1988. Instead, they can instigate proceedings further to the service of a valid NTQ. The court has no discretion and must give possession to the landlord. Failure to serve a valid NTQ is a complete defence to possession proceedings.

Also, be aware that if court proceedings are issued before expiry of the NTQ, there is a complete defence to possession. It is for the landlord to prove that a valid NTQ has been served.