When the tenant refuses to go

The new Housing Act aims to give landlords extra protection, but thousands of people who have already let their homes find themselves victims of a loophole in the law. Rita Carter is one of them
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The Independent Online
They are still there. Two-and-a-half years after their tenancy was meant to come to an end, and despite two court hearings, the couple I once let my flat to for a single year are still in occupation. I don't want them there. Their lease says that they should not be there. I have even - at last - got a court order granting me possession. But they remain in occupation, with all the protection of the law. And all because when signing the agreement, I failed to fill in a couple of lines on a form.

Nightmare tales of tenants who refuse to go were meant to be relegated to the past by the 1989 Housing Act. This introduced the shorthold assured tenancy - a letting agreement which allows the landlord to rent out property for a limited period in the sure knowledge that when the term expires, the tenants must go. Unfortunately, it does not always work out that way in practice.

My own nightmare began in April 1993 when I let my flat to a housing advice officer from Kingston Council, Richard Verrall, and his wife Tessa Sempik. They seemed the perfect tenants, and his job rather reassured me - I thought that a person in that position would be reliable and responsible. It never occurred to me that he would use his special knowledge against me.

I let the flat on a "shorthold assured tenancy" for what the agreement quaintly called a "term certain" of one year. At least, that is what I thought I had done. The lease we both signed - a standard contract - was crystal clear: it stated that at the end of the designated term I had the right to get my flat back. I gave the tenants the keys and went away happy.

What I did not know at that time is that the 1989 Act contains a hidden booby-trap: if the landlord makes even one tiny slip when setting up a shorthold assured tenancy, it may be transformed into an "assured tenancy", under which a tenant can stay in the property for ever.

The mistake that landed me with my unwanted incumbents concerns what is known as a Section 20 notice. This simply restates the terms of the lease: that the tenancy is for a fixed term and the landlord may reclaim the property at the end of it. The notice must be served before the rental agreement is entered into in order for a shorthold assured tenancy to be valid.

I duly served Mr Verrall with the notice, but I neglected to fill in the box provided for my name and the address of the property. This information was contained, of course, on the lease itself, so the omission mattered, in practice, not one jot. In law, however, it gave Mr Verrall the right to occupy my property for as long as he liked.

Mr Verrall has admitted in court that he registered my mistake as soon as he saw the notice. He knew that for me the error was potentially catastrophic. Did he not think to point it out to me? "Why should I?" he later said in court. "You have got to look after yourself in this world."

The discovery that I had effectively lost my flat came nearly a year later, when I wrote to Mr Verrall telling him that his let was nearly up. His reply encapsulated the legal position and made it clear that he would stay as long as he liked. The letter also informed me that he had lost his job and was on housing benefit.

From then on Mr Verrall stopped paying his rent on time, and started buying items for the flat. He had already bought a new carpet without consulting me - the money had simply been deducted from the rent. When I pointed out that my husband badly needed the flat for work, he told us to rent somewhere else. I decided that I would have to try to get possession through the courts.

Unlike many landlords in my position I had good grounds for reclaiming my property, because my husband and I could show that we needed the flat for our own use.

In order to be entitled automatically to repossess for this purpose we should have told Mr Verrall, in writing and before he moved in, that we might one day want it back for that reason. But the court has discretion, if it seems "just and equitable", to dispense with that requirement. In August 1995 I asked Judge Terence Maher, at Wandsworth County Court, to exercise that discretion.

For reasons which have since escaped understanding by two Court of Appeal judges (not to mention me), he refused. At the hearing Mr Verrall pleaded poverty, and claimed that he would be homeless if he was thrown out of the flat.

Judge Maher seemed to believe this, even though the admission by Mr Verrall's wife, a solicitor, that she was just about to spend more than pounds 1,000 on renewing her practising certificate and insurance suggested that she could earn an income.

"Some people might call [what you did] sharp practice," he told Mr Verrall. However, he then decided that it would not be "just and equitable" to give me back my property.

A year later Judge Maher's decision was reversed by the Court of Appeal. Lord Justices Auld and Thorpe found that the lower court judge had weighed the evidence wrongly and failed to take all the relevant circumstances into account, and had been wrong to conclude that Mr Verrall and his wife would have been homeless if they were made to leave my flat. To my immense relief, the judges ordered the couple to leave.

Yet - they are still there. Mr Verrall has now submitted a petition to the House of Lords asking for leave to appeal and until it is heard - around Christmas, apparently - I remain stuck with them.

According to standard figures published by the courts, the petition has cost Mr Verrall pounds 500 to lodge, and if leave is given for a hearing it may cost him pounds 3,000 more, and involve him showing that he can raise pounds 18,000 if necessary, to cover costs. Yet within the document he pleads that he does not have enough money to rent another flat.

Irritating though it is to remain locked out of my own property, I do count myself relatively lucky because I will almost certainly get my flat back in the end. I could not have fought this case if I'd had to pay lawyers. Through the help of a barrister friend, I was able to represent myself.

Others are less fortunate. Although the 1996 Housing Act does away with the Section 20 booby-trap, the legislation is not retrospective, so existing lettings are still subject to it.

Some landlords will discover that they have been caught by this loophole, only when they come to reclaim their property and find that they can't. It is not a pleasant feeling.

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