Question: I was hoping to sell my property to a friend, who had the keys to it. However, my friend has rented it to someone before contracts have been exchanged. The tenant does not want to leave the property. How can I evict him if I end up not selling the place to my friend?
Answer: Legally, your friend will probably have acted as your agent to create a valid assured shorthold tenancy agreement between you and the occupier, though you knew nothing about it.
You can therefore get the tenant out but will have to serve them with two months’ notice, to end when the fixed term expires, or, if there is no fixed term, six months at the earliest from the date the tenancy started. There is a particular form of notice to be used and you must make sure you get it right.
You will also need to find out whether a deposit was taken. This needs to be protected in a deposit protection scheme and the prescribed information sent to the tenant within 30 days of the tenancy starting. If this has not been done you need to take control of the deposit and comply with the rules at once, otherwise the tenant could claim a fine of three times the deposit from you. You cannot get an order from the court to evict the tenant until the deposit is protected.
If the tenant stays, you need to apply to the court for an order. This will usually be granted without a hearing but can take four to six weeks to come through. The court will normally order the tenant to leave in a further two weeks but can allow up to six weeks. If the tenant still does not leave, a bailiff will have to evict them.
The tenant may leave voluntarily if you ask them, or you may choose to let them stay, in which case you may want to formalise matters with a proper tenancy agreement if there is not currently one in place. Alternatively you could sell the property with the tenant in occupation.
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If you have a question for Fiona McNulty, please email email@example.com or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE. We regret that questions cannot be answered individually but we will try to feature them here. Fiona McNulty is a partner in the residential property, farms and estates team at Withy King LLP (www.withyking.co.uk).
These answers can only be a very brief commentary on the issues raised and should not be relied on as legal advice. No liability is accepted for such reliance. If you have similar issues, you should obtain advice from a solicitor.