‘How do I evict my freeloading children from my buy-to-let property?’
By Amelia Murray
I have allowed my grown‑up son and daughter to live in my buy-to-let property for the past year.
I live with my wife around the corner.
When the children moved in, both verbally agreed to pay me monthly rent for the buy-to-let property, which was below market rates. I never asked them to sign a contract.
I have not received any payments for the past six months and the children have stopped talking to me.
The situation has become awful and it’s really tearing our family apart. I want them out. Can I evict them if I have no agreement in writing?
AA, via email
The suggestion of a contract between family members or friends may feel awkward, but at least everyone knows where they stand in terms of their rights and responsibilities.
However, a verbal contract is still legally binding on your buy-to-let property – as long as you can prove there was one.
According to Richard Jones, from the Residential Landlords Association, the law will “presume there is a tenancy” if certain events have taken place, such as “the keys have been handed over” and the rent has been agreed.
Once this has been established, Mr Jones said a “default shorthold tenancy” came into being even without a written contract.
This means you can follow the usual channel of issuing a “Section 21” notice to evict your children. This applies to landlords living in England and Wales.
However, Mr Jones said the law was changing in Wales. No date has been set but in the near future landlords will need a written tenancy agreement if they are to issue a Section 21 notice.
As your tenancy agreement is not in writing, you will not be able use the accelerated process, which can be conducted without a court hearing.
Section 21 – the rules
Before you think about issuing a Section 21 notice, you must make sure you have provided the tenant with an energy performance certificate, gas safety certificate or the Department for Communities & Local Government’s publication “How to rent: the checklist for renting in England”.
Paul Shamplina, founder of Landlord Action, an eviction service, said it didn’t matter if this was not completed when your children moved in but you must gain access to the property and provide them with the documents before you issue the notice.
This regulation applies to tenants who moved into a property after October 2015.
What to do about your buy-to-let property
You must deliver the Section 21 notice in writing and give your children at least two months’ notice.
The notice period differs depending on how the rent is paid. If your children had agreed to pay you quarterly, you may have to give them three months’ notice.
A six-month notice period is required if they made a payment twice a year. This is the maximum notice period.
You’ll need to fill out a tenancy “Form 6a” – a “no-fault possession notice on an assured shorthold tenancy”. This can be found on the government website.
If your children refuse to leave after their notice date, you can apply to court for a possession order.
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This begins the eviction process but could take four to six months.
Your children will be sent court papers, including a defence form. If requested, your children may be able to delay the eviction by up to 42 days, although only in exceptional circumstances.
A court hearing is then arranged, at which you will need to give a witness statement and describe your situation.
Mr Shamplina said this was where you would need to present as much evidence as you can to prove that there was an agreement – for example, proof that your children were paying you rent.
He said: “A cheque payment, standing order or bank transfer would all be acceptable.
“If you don’t have any evidence of an agreement, it’s your word against theirs and the outcome will depend on who the judge believes.”
Mr Jones said if a court appearance were required (even if the case was undefended) costs were likely to be at least £2,000 to £3,000.
If the judge makes an order, your children will be given 14 or 28 days to vacate the premises. They must leave before this date.
If they still refuse, you can ask the court to evict them with a “warrant for possession”. They will be sent an eviction notice with a date by which they must leave your buy-to-let property.
However, there is also a chance that the judge may dismiss the court case and allow your children to stay, or adjourn if no decision can be made that day.
If the judge dismisses the case, your children are allowed to remain in the buy-to-let property and you must restart the court process if you still want to evict them.
Mr Jones said it might be frustrating, but under no circumstances should you attempt a “DIY eviction”.
He said: “Having to kick your kids out of your house is a dire situation but you must evict them properly using the court process.
“It’s a criminal offence to physically remove someone from your home.”
Get legal advice
Evicting family members without a formal tenancy agreement is a complicated process and there are many nuances.
For example, Mr Jones said, if your children were not paying rent but were contributing to the household costs, they may be considered “licensees” rather than tenants.
Then a difference set of rules applies.
You can issue a written “notice to quit” and give your children at least four weeks’ notice.
If family members or lodgers are sharing a buy-to-let property, the notice can be verbal and there just needs to be “reasonable notice” given. This could be a week’s notice if rent is paid weekly.
To understand where you stand, it is best to seek legal advice.