Tenant - notice period passed - what if they don't leave?

Cash_Q

Apologies I did post this question in another thread but it was a bit off topic so hoping I'll get an answer by starting a new thread..

If a tenant has been served their notice to leave and a statutory declaration that the house is being sold, and the notice period passes and the tenant has not left the property, what can a landlord do to have them move on?

Tenants in question have had significant notice but appear to be doing their best to obstruct the sale. What rights does a landlord have to get them out? I know it sounds awful and no-one wants to be a party to a person losing their home and having nowhere to go, but surely a landlord has a right to close a sale on their property once the notice has expired.

tretorn

I dont think it sounds awful at all. I have a house let and it will be required for a family member in the future. I expect the tenant to vacate the property and return it to me in the condition they got it.

I have to look after my family and other peoples housing requirements arent my priority.

the_syco

Cash_Q wrote: »

If a tenant has been served their notice to leave and a statutory declaration that the house is being sold, and the notice period passes and the tenant has not left the property, what can a landlord do to have them move on?

Get the sheriff to evict them.

The_Conductor

Your only option is to have followed the letter of the law- and if they still do not vacate the property- to lodge a case with the Residential Tenancies Board.
They are prioritising cases of overholding now- and undertake to hear the case within 6 weeks- however, if the tenant decides to dispute their findings, they can continue to boot having to move- further down the road. Eventually- when all legal avenues to extend their stay have been exhausted by a tenant- the RTB can take a case to the District Court on behalf of a landlord- to enforce their findings- after which the District Court can appoint a sheriff to enforce the findings.

Unfortunately- even a 'prioritised' system still means the case can drag on a year- during which time the tenant may or may not be paying rent.

The system is setup to protect tenants- and to have an automatic assumption of 'guilt' on the part of the landlord (even when they are the wronged party).

Cash_Q

Thanks for the replies, it's good to know the procedures for some peace of mind.

We're buying a house that was supposed to close in a few weeks and the tenant last week had their notice start again as the vendor hadn't issued a statutory declaration. It's seriously delaying the sale going through.

We are going ahead with the purchase anyway as we love the house and feel we've got a good price and have been waiting months as it is. At least we can keep saving until it goes through. But we live with family and others need the room once we leave so it's a nightmare.

We just fear that she'll dig her heels in when her notice is up, but it's reassuring to know what the vendor can do. Thanks again.

The_Conductor

Cash_Q wrote: »

Thanks for the replies, it's good to know the procedures for some peace of mind.

We're buying a house that was supposed to close in a few weeks and the tenant last week had their notice start again as the vendor hadn't issued a statutory declaration. It's seriously delaying the sale going through.

We are going ahead with the purchase anyway as we love the house and feel we've got a good price and have been waiting months as it is. At least we can keep saving until it goes through. But we live with family and others need the room once we leave so it's a nightmare.

We just fear that she'll dig her heels in when her notice is up, but it's reassuring to know what the vendor can do. Thanks again.

If the tenant digs her heels in- it could take up to 2 years to get her out.
There is a process- its a broken process- and government funded organisations (such as Threshold) actively advise tenants on how to play the system.

Do not sign a contract and do not pay a penny- until you are guaranteed vacant possession of the property- it is worthless to you with a tenant in it.

dubrov

Cash_Q wrote:

We just fear that she'll dig her heels in when her notice is up, but it's reassuring to know what the vendor can do. Thanks again.

I wouldn't be reassured. It could take a year to get the tenant out

The Student

The_Conductor wrote: »

If the tenant digs her heels in- it could take up to 2 years to get her out.
There is a process- its a broken process- and government funded organisations (such as Threshold) actively advise tenants on how to play the system.

Do not sign a contract and do not pay a penny- until you are guaranteed vacant possession of the property- it is worthless to you with a tenant in it.

No financial institution will allow you purchase a property without vacant possession.

SteM

The Student wrote: »

No financial institution will allow you purchase a property without vacant possession.

I was going to ask the OP about this. How can they draw down the mortgage without vacant possession?

KellyXX

From mine and my other halfs conversations with various housing charities they told us basically if someone doesn't feel like moving they can stay as long as they like almost. Years. And even if they can't afford the rent they don't have to pay what they can't afford and can still stay.

cruizer101

Op you should keep looking at houses, as others have said it could be more than a year and if takes that long they may well put price up also

Cash_Q

We have signed contracts and paid our 10% deposit so we can't keep looking at houses. The bank won't allow us to draw down until she leaves so we will have to keep reapplying for mortgage approval until she is gone.

I took relief when people said that the landlord can get help from the sheriff to get her out. Years of waiting is another story. It's a crap situation but we're signed in now so can't back out.

tretorn

Have you a solicitor cash Q, he or she is seriously negligent if you do have one.

The_Conductor

tretorn wrote: »

Have you a solicitor cash Q, he or she is seriously negligent if you do have one.

+1
I'm not sure how you were allowed to sign a contract- when vacant possession of the property was not ensured.

jimmycrackcorm

The_Conductor wrote:

Do not sign a contract and do not pay a penny- until you are guaranteed vacant possession of the property- it is worthless to you with a tenant in it.

Once the house changed hands, what's to stop the new owner just changing the locks and denying the tenants access? After all they aren't the landlord, so the RTB can't take a case against them.

The_Conductor wrote:

+1 I'm not sure how you were allowed to sign a contract- when vacant possession of the property was not ensured.

Nothing to stop contracts being signed. Getting the mortgage is the issue, and even then it's secured on the property regardless.

Claw Hammer

The_Conductor wrote: »

+1
I'm not sure how you were allowed to sign a contract- when vacant possession of the property was not ensured.

Of course, you can. The contract will make provision for vacant possession. If the owner does not provide vacant possession on the closing date you can withdraw from the contract and demand the wasted costs from the owner.

Claw Hammer

jimmycrackcorm wrote: »

Once the house changed hands, what's to stop the new owner just changing the locks and denying the tenants access? After all they aren't the landlord, so the RTB can't take a case against them.



.

The new owner takes over the old owners interests in the property subject to all the burdens the old owner had. The new owner will have notice that the tenants are in the property and will become the landlord on the closing of the sale. Building societies have been made to refund deposits to tenants who were on a property they repossessed.

Cash_Q

The bank will not allow us to draw down the mortgage without vacant possession. Contracts signed and closing date is ten days after tenants vacate the property as per date on their notice or sooner if the leave sooner (ha!). There is a clause that says we can pull out if we don't get financing from the bank. Our solicitor inserted this clause to protect us.

I spoke to the RTB today and was told that if the tenants aren't out on their due date that the landlord can open a dispute with them for overholding. If the tenants then dispute this and the RTB finds that the landlord has done everything by the book, he can have an order enforced by the court to have the tenants removed.

Rtb couldn't tell me what this will result in but did say that they are making cases like this a priority so it should take too long for their adjudicator to make a decision.

The_Conductor

Cash_Q wrote: »

I spoke to the RTB today and was told that if the tenants aren't out on their due date that the landlord can open a dispute with them for overholding. If the tenants then dispute this and the RTB finds that the landlord has done everything by the book, he can have an order enforced by the court to have the tenants removed.

Rtb couldn't tell me what this will result in but did say that they are making cases like this a priority so it should take too long for their adjudicator to make a decision.

They undertake to have 'an initial hearing' within 6 weeks.
The actual process- if a tenant decides to dispute the finding- can take up to a year- and you still have no guarantee that the tenant will have vacated the premises. According to the RTB's annual report- it takes them on average 8 months to initiate a court case to enforce a finding- and the tenant can then make their case in the District Court- if they so choose.

The ball is really in the tenant's court- and the system is setup to protect them at any cost.

guest2018

I am in a similar situation- signed a contract in summer 2014.
Since then the seller has been trying to get rid of the tenant, still unsuccessfully....
The tenant's debt is tens of thousands, he is still in the property, persistently appealing everywhere...
I had to change a solicitor to start suing the vendor.
Nobody knows when it finishes. I payed a deposit in 2013...

The_Conductor

guest2018 wrote: »

I am in a similar situation- signed a contract in summer 2014.
Since then the seller has been trying to get rid of the tenant, still unsuccessfully....
The tenant's debt is tens of thousands, he is still in the property, persistently appealing everywhere...
I had to change a solicitor to start suing the vendor.
Nobody knows when it finishes. I payed a deposit in 2013...

5 years later- and they still haven't left?
In cases like this- they are normally trying to blackmail the owner for a bribe to leave the property.
5 years though? If the owner were to have pressed the RTB for assistance- they would normally take a case on behalf of the owner- to ultimately have a sheriff appointed to enforce the RTB ruling.

No matter how many grounds for appeal the tenant has- 5 years later- and tens of thousands in rent arrears- is taking the piss.

guest2018

The_Conductor wrote: »

5 years later- and they still haven't left?
In cases like this- they are normally trying to blackmail the owner for a bribe to leave the property.
5 years though? If the owner were to have pressed the RTB for assistance- they would normally take a case on behalf of the owner- to ultimately have a sheriff appointed to enforce the RTB ruling.

No matter how many grounds for appeal the tenant has- 5 years later- and tens of thousands in rent arrears- is taking the piss.

This is a receivership case. The receiver's changed solicitors already. But the tenant seems is more competent than the solicitors, as they've made all possible mistakes to allow the tenant to appeal in all cases. I can suspect he's appealing again to the High Court now, the second time but with a different ground...

The_Conductor

Even if it is a receiver case- there is no reason the receiver hasn't requested the RTB take a case to enforce their ruling- and followed through with it.

Its madness in the extreme that the tenant is still there playing mindgames- 5 years later.

I imagine the only reason you're still hanging around- is you signed a contract 5 years ago- at prices from 5 years ago- and you can't afford to look elsewhere? Your deposit is safe- as you have not been given vacant possession of the property to close on- however, that's not the point, is it?

The situation you've briefly outlined- is nutty in the extreme- however, if I was able to keep booting the problem down the road and hadn't paid rent in 5 years- hell, I know I'd do it to.

Have you threatened to take a case against the receiver yourself? That might focus their minds.

guest2018

The_Conductor wrote: »

Even if it is a receiver case- there is no reason the receiver hasn't requested the RTB take a case to enforce their ruling- and followed through with it.

Its madness in the extreme that the tenant is still there playing mindgames- 5 years later.

I imagine the only reason you're still hanging around- is you signed a contract 5 years ago- at prices from 5 years ago- and you can't afford to look elsewhere? Your deposit is safe- as you have not been given vacant possession of the property to close on- however, that's not the point, is it?

The situation you've briefly outlined- is nutty in the extreme- however, if I was able to keep booting the problem down the road and hadn't paid rent in 5 years- hell, I know I'd do it to.

Have you threatened to take a case against the receiver yourself? That might focus their minds.

Yes, you're right- the prices have increased so much for the last few years that I cannot afford to buy a property now.

My court case against the receiver was postponed a few times as they were seeking the enforcement of the determination order in RTB, then in the Circuit Court, then it went the second time by the same way starting from scratch, when they lost in the Circuit Court due to previous solicitors mistakes...

So, they never said they failed but continued to promise ...

LuckyLloyd

KellyXX wrote: »

From mine and my other halfs conversations with various housing charities they told us basically if someone doesn't feel like moving they can stay as long as they like almost. Years. And even if they can't afford the rent they don't have to pay what they can't afford and can still stay.

This is incorrect if you pursue your rights as a Landlord correctly from the outset. Even with RTB appeals, etc you can reach a legal point where a sheriff can forcibly return your property in around a year. However, in order to get to the finishing line in the shortest time period, you need to make sure that you have left no avenue for appeal open - everything before and after a notice to terminate needs to be done strictly as per the law.

We can argue whether that should be the case or not, but the advice that should always be offered to landlords in the current context is to consult a solicitor at the first sign of resistance from the tenant and make sure that they're doing everything by the book.

Cash_Q

That's beyond ridiculous. Our vendor is dependant on this sale to proceed with his next purchase so he will be ready and waiting to take her to court if she refuses to leave. The RTB will rule in his favour as he has done everything by the book and she will be told to leave. Solicitors on both sides are ready to get her out so we're not worried.

KellyXX

LuckyLloyd wrote: »

This is incorrect if you pursue your rights as a Landlord correctly from the outset. Even with RTB appeals, etc you can reach a legal point where a sheriff can forcibly return your property in around a year. However, in order to get to the finishing line in the shortest time period, you need to make sure that you have left no avenue for appeal open - everything before and after a notice to terminate needs to be done strictly as per the law.

We can argue whether that should be the case or not, but the advice that should always be offered to landlords in the current context is to consult a solicitor at the first sign of resistance from the tenant and make sure that they're doing everything by the book.

Oh, a year if everything goes smoothly.
Silly me. A year is fine then. No problem at all.

LuckyLloyd

KellyXX wrote: »

Oh, a year if everything goes smoothly.
Silly me. A year is fine then. No problem at all.

I didn't say that isn't a problem. Just correcting your assertion that the tenant can stay as long as they like, or that the process takes years.

In any scenario where you are pursuing your legal rights, doing everything correctly as per the law is a basic requirement for it to run "smoothly" from your perspective. If you're sloppy in terms of your obligations and you leave yourself open to appeals about process or nuances in documentation, etc it really is your own fault unfortunately.

LuckyLloyd

Cash_Q wrote: »

That's beyond ridiculous. Our vendor is dependant on this sale to proceed with his next purchase so he will be ready and waiting to take her to court if she refuses to leave. The RTB will rule in his favour as he has done everything by the book and she will be told to leave. Solicitors on both sides are ready to get her out so we're not worried.

Sounds good. Fingers crossed the tenant doesn't decide to drag it out to the point of being forcibly evicted, but if she does at least you know it should reach a conclusion in a set time period.

murphaph

LuckyLloyd wrote: »

I didn't say that isn't a problem. Just correcting your assertion that the tenant can stay as long as they like, or that the process takes years.

In any scenario where you are pursuing your legal rights, doing everything correctly as per the law is a basic requirement for it to run "smoothly" from your perspective. If you're sloppy in terms of your obligations and you leave yourself open to appeals about process or nuances in documentation, etc it really is your own fault unfortunately.

No it isn't. It's the fault of the overholder. That they may be able to find a small technical fault in part of the process doesn't mean it isn't their fault!

LuckyLloyd

murphaph wrote: »

No it isn't. It's the fault of the overholder. That they may be able to find a small technical fault in part of the process doesn't mean it isn't their fault!

Grand, we can all agree we need to expedite the process in cases of overholding. But ultimately whatever the process involves it’s up to you to pursue your rights in a legally correct manner.