This post is inspired by a question I was asked recently.
“My tenant is in arrears and has been served with a section 21 notice ” (said my correspondent) “and I have a friend who is homeless. Can I ask my tenant to put my friend up in the spare room?”
This is something that maybe sounds sensible to non-lawyers but is NOT something you as a landlord are entitled to do. Even though the tenant is in arrears and you have put the tenant on notice to leave.
If you think this IS something a landlord can do, then you fundamentally misunderstand what a tenancy is.
So why can’t the landlord request this?
The landlord can’t legally ask his tenant to allow someone else to live there as he (or she) has no rights over the property while it is let to the tenant.
A tenancy is ‘a legal interest’ in land. This is because it is a type of leasehold property and, together with freehold, is one of the two types of legal interest in land which can exist – pursuant to section 1 of the Law of Property Act 1925.
So, if you own a 125-year lease of a flat in London, you wouldn’t expect the freeholder to be able to ask you to put up his friends or relatives – even if you had failed to pay the ground rent. Well, neither can a landlord of an assured shorthold tenancy expect his tenants to do this.
The fact that the tenant is in rent arrears does not affect this, neither does the service of a possession notice. All the possession notice does is warn the tenant and (if correctly drafted) enable the landlord to get a possession order at court.
Landlords losing control
It is perhaps understandable that some people would think this sort of thing acceptable – as ASTs tend to be quite short (as opposed to long leases which last for many years), and AST landlords normally get possession of the property back every couple of years.
However, during the tenancy, the landlord has no physical rights over the property – these have all been exchanged for
- the right to receive rent and
- the right to get the property back when the tenant vacates (known as the ‘reversion’).
The landlord cannot even go into the property (save in a genuine emergency) unless the tenant agrees, under a rule rather quaintly known as the ‘covenant for quiet enjoyment’ (explained here).
Landlords have to accept that if they rent out a property on a tenancy, they will lose control over it for the duration of the tenancy.
If you find this unacceptable, then you should not be a landlord.
But what about the tenancy agreement?
“What then is the point of having a tenancy agreement”, you may say, “if the landlord isn’t allowed to go into the property or have any real control over what the tenant does in it?”
The reason is that the tenant will be contractually bound to comply with the terms of the tenancy agreement. If the tenant breaches any then the landlord’s remedy is either financial or (in serious cases) the right to go to Court for a possession order, or perhaps an injunction order, ordering the tenant to stop doing whatever-it-is.
- If the tenant rents out the spare room at the property to an unauthorised lodger, the landlord can’t go in and physically evict the lodger. But he can use this as the basis of a claim for possession (assuming the tenancy agreement forbids subletting) or maybe a claim for an injunction – for example, if the lodger staying is making the landlord liable under the HMO legislation.
- If the tenant damages an appliance at the property because it is not being used properly – the landlord (assuming this can be proved and the tenancy agreement contains the relevant clauses) can claim the cost of a replacement from the tenant’s deposit
So what about asking the tenant to put up the landlord’s friends?
The tenant can (and should) refuse this – and if the landlord insists, the tenant may have a claim for harassment.
So landlords – be careful.
As far as my questioner is concerned – he will just have to wait until the tenant either vacates or is evicted through the courts.