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Question Title: Too hot in Australia!
| Question: 389 |
| A couple decided to move to Australia and asked an agent friend of mine to find tenants. He found a couple, A & B, who had two young children and another on the way, who wanted to rent the property. Unfortunately, A was self employed and had a poor credit rating. The landlords were desperate to rent out the property before they left for Australia and the agent purported to create a 6 month AST in the name of B's father. A & B and their family moved into the property and paid the rent. Unfortunately, it was too hot for the landlords in Australia and on their return they wanted their property back. The agents contacted the tenants. They refused to leave the property as they wanted to be rehoused by the Council. They were advised by the Council that the landlord would need to take legal action through the courts to recover possession. The landlord now needs to know what to do next?
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| Answer: |
| This will not be a straightforward possession action and the landlord may be well advised to seek the advice of a suitably experienced solicitor. Not all solicitors have the specialist knowledge that might be necessary. The letting agent should have been aware that he could not create an assured shorthold tenancy agreement for a tenant that was not resident. The Housing Act s1(1)b states that:- "the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home;" and therefore might be held liable for some or all of the extra costs in resolving this situation. Post Housing Act 1996 the default tenancy is an assured shorthold and it is likely that a court would hold that the occupants of the property occupied under such a tenancy but what would be the terms of such a tenancy? As they have paid the rent that term of the tenancy is certain but what of the length of the tenancy? The most likely proposition is that it is a periodic tenancy but unless the tenants are in breach of the tenancy the landlord cannot recover possession in the first six months. In order to recover possession the landlord would have to issue a two month s21(4) notice and the earliest that this could expire would be six months from the commencement of the tenancy. The possession action would require a court hearing as the accelerated possession procedure could not be used as there is no written tenancy agreement. All of which would add to the costs. This could be a costly mistake on the part of this agent.
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References:
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Pages:
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Hyperlinks:
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Letting Handbook |
Chapter 12 |
letting-handbook-and-factsheets.html
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Letting Factsheet No 20 |
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factsheet-20
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For more information, discuss on the Forum
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