Here is a question to the Blog Clinic from Peter who is a landlord.
I let a room in a HMO in 2015. The let was documented by way of a Licence Agreement. We signed Licence Agreement where I was the Licensor and he was the Licensee.
For various reasons I wish him to go. My understanding is a Section 21 Notice can only be used where the let is an assured tenancy. Can I give him a Section 21 Notice where the underlying documentation is a Licence Agreement? If I cannot give him a Section 21 Notice what can I do?
Answer
You can only use section 21 to evict assured shorthold tenants, it cannot be used for licenses.
License or tenancy?
However, your tenants probably have an assured shorthold tenancy as this is the type of letting which will normally be created when someone rents a property.
You cannot create a license just by getting occupiers to sign a piece of paper with ‘license agreement’ written at the top. The letting must have the characteristics of a license, which in most cases it will not. See this post for more information about this.
In fact, landlords (and agents) need to be VERY careful about giving ‘sham licenses’ as you can be prosecuted for this. See this post here.
Using section 21
Mind you, the fact that you have a tenancy does not necessarily mean that section 21 is available to you. For example, did you take a deposit? If so – was it protected in a scheme? If not, you can’t serve a section 21 notice until the money has been refunded (and you are able to prove this).
Your HMO may also be a licensable HMO. If so, you won’t be able to serve a section 21 notice unless it has been licensed (although you can serve your notice while your application is being considered).
You say that the occupier went into occupation in 2015 but you do not say which month. If he went in after 1 October 2015, then there are other rules you need to comply with under the Deregulation Act 2015.
One of this is service of a gas safety certificate before the tenant goes in – if you did not do this you may not be able to serve a section 21 notice at all.
Conclusion
As you can see, there is a lot more to renting out property than giving someone an agreement and taking the money.
From the way you have written your question, it looks as if you may not know much about landlord and tenant law so if the occupier is unwilling to vacate voluntarily, I would recommend you instruct solicitors who specialise in this work, such as Landlord Action.
You can get an idea of how much it will cost you here.
If you want to give it a go yourself though, I have a free preliminary guide which you should follow first here.
If your occupier is, in fact, a licensee (which actually I doubt but I could be wrong), then you won’t have the same problems but again, I would strongly recommend that you use solicitors.
https://landlordlawblog.co.uk/2013/01/15/renting-property-on-a-license/
You say here that a S21 guarantees posession. It doesn’t. You also, correctly, point out that a tenant can stay put until a court order is made, and that would mean that the S21 date, and process, has been and gone.
Well of course. A correctly drafted and valid section 21 notice will guarantee possession after a Landlord has gone to court on an application for possession.
I’m curious did you see a copy of the license and if so was it a sham?
Not personally, no, of course not. The post is about a case where Islington Trading Standards brought a successful prosecution.
All ‘license agreements’ given in circumstances where the occupation is, in reality, is a tenancy will be a sham and make the landlord vulnerable to prosecution as they are misleading the occupiers and misrepresenting their rights.