Tenant refusing to leave

[efpom]

A very close friend has asked me to advise her on the following – it is well outside my expertise and I would welcome any comment on the following.

On the 8^th April 2022 the landlord served a section 21 notice on her tenant.
The tenancy is a periodic tenancy.
Rent is payable monthly on 10^th of the month
Possession is due to take place on 10 June.
In fact, the tenant set up home elsewhere in the spring of 2021
However, her son who is 27 remained in the property.
The tenant has continued to pay the rent.
Over the last month, the tenant has moved a quite considerable amount of her belongings out.
On 3^rd June the landlord wrote to her tenant in the terms below:
On the evening 5^th of the tenant emailed as below.
The relevant terms of the Tenancy Agreement are .
The Landlord intends to attempt to carry out the 2 inspections.
What advice should I give her?

HOUSING ACT 1988 Section 21(4)(a) as amended 1996
Notice Requiring Possession
To:
[Tenant]
From[Landlord]
Notice is hereby given that I require possession of the dwelling house known as:
[Redacted]after the expiry of this notice.
Date of Expiry of this-Notice: 9th June 2022
Signed - Landlord
Date: 8th April 2022
3^rd June 2022- Landlord to Tenant
Your tenancy ends on 9th June 22
I assume that you have well in hand the removal of all of your belongings, cleaning, putting the front and back gardens into a tidy condition, rubbish removal and any repairs.
I will inspect the property on 5th June at 4 pm and I would like you to be there.
On the 9th June at 12 noon, I will be doing the final inspection and I would like you to be there for that also so that we can do that together - take the electricity meter read etc, give me all of the keys to the house and deal with any other matters.
Please inform [tenant’s son] of the above.
4^thJune 2022 Tenant to Landlord
I am unavailable either of those dates, and as such do not grant permission for you or any other relative, agent or representative to enter the property.
The property will not be vacated and the keys will not be returned on or before the 9th June 2022.
You will be notified with a date of vacancy in due course.
Tenancy Agreement
Clauses regarding Landlord entry.
3. The Tenant hereby agrees with the Landlord as follows:-
(b) To permit the Landlord and/or his Agent or servants with or without
workmen with all necessary appliances at all reasonable times, whether
the Tenant is present or not, to enter upon and examine the condition of
the said property, fixtures and effects and to execute repairs to the
same.
5(d) That during the last two months of the tenancy the Tenant shall permit
the Landlord or his Agents or servants to enter the property, whether
the Tenant is present or not at all reasonable times for the purpose of
enabling any prospective Tenant to view the property

6(d) “Reasonable time” is defined as between the hours of 09:00 and 21:00

[Sam101]

Your friend may be forced to take possession and evict the tenant or the son, who may wish for that to happen to try and obtain some other housing benefit.
Your friend should seek legal advice on obtaining possession forcefully if necessary, but others will have far greater knowledge than I on this matter and may wish to offer guidance.

[dslippy]

Possession must be recovered through the court. That should be straighforward, but will add a few weeks. As has been said, a tenant canoften be forced to await a court odrer to help get the LA to rehouse them.

[Pacific]

I'm not an expert but have been researching eviction protocols recently to help a friend in the process of one as she is very stressed, she is however the tenant.

It's sounds like your LL friend needs to do the next step of applying for a court possession order and if they haven't left by that date then bailiffs warrant, it takes time but he needs to follow the law. It doesn't sound like the landlord has done anything wrong or that the tenants are unhappy with him but that they just haven't left so it should be straightforward.

May I ask why the LL is evicting? He doesn't need a reason but if the property is for rental and the rent is fully paid and he's had no issues with these tenants why not let them stay?

Just an observation in the letter, 9pm inspections doesn't sound reasonable to me.

[efpom]

The property has become severely dilapidated since the tenant herself moved out 18 months ago. The tenant's 27 year old son remains in the property. the landlord has decided to sell the property.

[dslippy]

Advice may well be needed as to who should be respondent to the action. The occupier is noit the tenant. Has the landlord accepted the occupier as tenant? Is the paperwork in order as to the occupier>

[efpom]

You raise an interesting point. Who is to be the defendant to an application for a Possession Order? My own view, for what it's worth, is that it has to be the occupier.
True it is that the Tenant named in the Tenancy Agreement set up home elsewhere. nearly two years ago. The rent continued to be paid to the landlord. Her son, the present occupier is not named in the Agreement and never lived with the Tenant at her new home. The son stated to the landlord - after the S21 had been served, that he was giving his mother the rent and she was forwarding the rent onto the landlord, via bank transfer from her bank account to the landlord.
The relevant clause in the Tenancy Agreement is as follows
Not to assign charge underlet or part with the possession or occupation
of the property or any part thereof or of the said furniture fixtures or
effects of any part thereof but to keep the property in the occupation of
the Tenant and the Tenant’s family only. “Family” shall be construed
here as meaning the spouse of the Tenant and any son or any daughter
of the Tenant or of the spouse of the Tenant and “spouse” shall also
include a civil partner under the Civil Partnership Act 2004
Two points occur to me:
The first is that the clause may be construed as meaning that provided the Tenant occupies the property as her home, she is entitled to have her family join her as derivative occupiers of her home. BUT if the Tenant ceases to occupy the property as her home, the derivative right to occupy the home by members of her family falls away.
If the above is true, then there is no freestanding right by the son to occupy the home and his status may well be that of a trespasser.
The second is that by setting up a home elsewhere, and taking the rent money from her son, she has created an underlet, which breaches the above clause.
The proofs are:
a) The land registry entry for the Tenants current home.
b) The son’s statement to the landlord, which is corroborated by being witnessed by another party to that conversation, me, as it happens!