I have inherited a tenanted residential property with no written tenancy agreement: is this a problem?

It is surprisingly common for personal representatives dealing with properties or those who have inherited properties to find that they have been left with a headache: the deceased has let the property to a tenant but no paperwork can be found documenting the arrangement. Invariably there is also no evidence of other legal requirements having been complied with.

The absence of a written tenancy agreement is not of itself a problem and, unless one of the statutory exceptions applies (such as where the property is let at a very low rent), then an assured shorthold tenancy or AST will still have been created and this can be terminated in the normal way by service of a ‘no fault’ notice seeking possession (a section 21 notice) enabling the property to be sold with vacant possession. Alternatively, a new written tenancy agreement can be entered into which will document the parties’ rights and obligations moving forwards.

However, there could be difficulties with serving a section 21 notice if the tenancy was created on or after 1 October 2015 and the deceased owner did not comply with the requirements required upon granting an AST: this would include providing an EPC and gas safety certificate or complying with other legal requirements. The consequences of this are likely to be that it is not possible to obtain possession using the section 21 notice route. This is definitely a problem!

The Housing Act 1988 sets out circumstances where possession can be obtained if a breach or ‘ground for possession’ can be shown but this is likely to be difficult if there is no written agreement and the tenant is paying rent on time. Under the proposed Renters (Reform) Bill a new ground is proposed that would enable possession to be sought where a landlord intends to sell. This would clearly be welcomed by those finding themselves with a problem tenancy of this nature.

It remains to be seen if the Bill will become law before the next General Election!

For any help and advice regarding this article or any other litigation or dispute matter please contact Johanne Spittle, Director - Litigation & Dispute Resolution at Ware & Kay incorporating Pearsons & Ward on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email johanne.spittle@warekay.co.uk.