Selling with a Tenant in Situ
It may be the case that the tenant is happy to leave or has already found another place.
Other landlords may have planned for the sale the moment the tenant leaves, so things usually work out well.
If none of the above applies, be prepared to have a frank and open discussion with the tenant.
We would also suggest taking the following suggestions on board:
- Try to meet at the property. This will also give you the opportunity to check its condition;
- Remember to be a nice person. Most tenants pay on time and serve landlords well – a draconian attitude is therefore unfair;
- Always look for a ‘win-win’ outcome (in other words, be willing to compromise);
- If you explain why you are selling, they may understand your side of the story;
- They will be naturally concerned about who the new landlord will be and whether there’s any risk they’ll be evicted. Explain that you will do your best to sort things out properly;
- Explain that you will pass on the message to the buyer that they have been good tenants and do not want to leave;
- Try and speak with the buyer to see if a sufficient amount of time can be given for the tenants to find new accommodation;
- See if you can organise a meeting or phone call between the future buyer and the tenant(s);
- Keep the tenant informed of the progress of the sale;
- Reassure them that they can contact you whenever they need to;
- Say that you’re happy to stay in touch after the sale and help should there be a concern that the landlord may ask them to leave;
- If they are concerned about rent rises, give them a breakdown of local market rates (sourced from Rightmove and Zoopla). Explain that it’s difficult for landlords to push rents above this level;
- Explain that their deposit will not be affected and they will get it all back. Send proof and confirmation if they are worried;
- Work with a solicitor that has experience of dealing with properties with tenants.
Organising Viewings with a Tenant In-Situ
Assuming the tenant has comes to terms with the sale and agrees to be cooperative, it’s worth having another meeting to explain that you will be putting the house on the market and arranging viewings.
This can be a tricky situation, especially as they are still paying you rent and actually doing you a favour.
Remember that, under Common Law, tenants are entitled to live in quiet enjoyment up to the point when the tenancy is legally terminated;
It’s easy to see why tenants wouldn’t be comfortable with photos of their belongings being displayed online and random strangers coming into their home.
Below are some tips on how you can get through this process without causing too much hassle:
- Always work with an estate agent that has experience of working with tenanted property sales. They should be respectful and not intrude when dealing with the tenants;
- Although the tenancy agreement may say that you can visit the property with viewers with 24 hours notice (or more), work to the tenant’s schedule. Allow them to suggest times, even if they are out of hours;
- You may want to offer a discounted level of rent (but make sure there’s a separate and watertight contract in place);
- Book in block viewings or talk to the agent about hosting an open day. This has the added benefit of creating a competitive environment between the sellers. You can then confirm with the tenant what the best day is and work around their schedule;
- Send a box of chocolates or some other gift to thank them for their cooperation;
- If it turns out to be too much hassle, it may be better to simply wait until the tenant vacates the property. This is especially the case if the property is messy and it makes sense to freshen things up before showing people around.
If you are using an estate agent or auction house, viewings will be required. If you are not able to accommodate, you may have to accept a lower offer.
Quick house sale companies often consider buying without viewing the property.
Asking a Tenant to Leave So You Can Refurbish and Sell
This is likely to be a more complex situation, especially if the tenant doesn’t want to leave.
In most cases, as long as you are fair and decent, the tenant will be on your side.
If not, before even thinking about starting an eviction process, it’s always worth seeing if you can sit down with them to figure things out:
Below are some pointers:
- Be courteous and respectful. Keep any bitter feeling to a minimum – even if it takes longer to get things sorted;
- Advise them that the terms of the tenancy agreement still stand (even if it’s periodic);
- Offer to help them find a new home. Check the rental sections on portals like Rightmove and Zoopla, speak to local lettings agents and make some suggestions;
- Explain that you would be happy to provide a character reference;
- Be willing to speak to any prospective landlord on their behalf;
- Explain that they will be receiving their deposit back in full (sending a written confirmation where necessary);
- If they are struggling to find a suitable place, be patient and say that you’re happy to wait (but make sure they are being proactive). This may seem counter-intuitive, but it’s often better than going through the long drawn out court process;
- Some landlords offer a helping hand to tenants as they move on. This can include contributing to their moving costs, paying the deposit / first month’s rent or other gestures of goodwill;
- In a similar vein, you may want to offer discounted rent for a set period (make sure you have a separate contract that protects your interests if so);
- Offer to sell the property to the tenants first (before putting it on the market). Although they may not be in a financial position to do so, it at least shows that you are being considerate.
Remember, if they wish to formally surrender their tenancy and vacate, they must give you 1 month’s notice. It is good to have this notice in your possession to put your mind at ease and get the sale going.
Dealing with a Problem Tenant
Things can get challenging when the tenant doesn’t want to leave and starts to play games.
The tell-tale signs are no responses to text messages, emails, phone calls or letters.
As there is sometimes a genuine reason that would explain why people are ignoring you (illness, bereavement or other harrowing life events), you may choose to be a little patient.
Without being too intrusive or trespassing, also to try and speak with neighbours to see if there is a legitimate reason for the tenant not getting in touch.
But sooner or later, you may have to start some form of legal action to gain possession of the property.
Before engaging in costly eviction procedures, we would suggest writing a letter explaining your side of the story.
Explain that you really do not want to start the process as there will be costs involved. Eviction will also possibly cause damage to their credit rating. In short, encourage them to work with you.
Failing that, you’ll probably have to start eviction proceedings.
The Housing Act 1988 stipulates two main ways in which landlords can regain possession of their property: Section 8 and Section 21.
We summarised the two different processes below…
Unless you have experience dealing with the situation, we would advise seeking qualified suitable legal advice or use a growing number of specialist services.
Remember there are different rules if you are in a situation where the tenant(s) claim squatters’ rights.
Section 21 Possession Order
As the landlord, you have the legal right to take possession of the property.
To do this, you will need to serve a Section 21 notice* which confirms that you want the tenants to leave.
You do not need to explain why, but 2 months full notice must be given.
This means that if the date of the tenancy agreement ends on 1st December, and you wish to take possession on that date, the notice must be received on 1st October.
Always send this via recorded delivery and email so that you have proof it was sent.
Also, fill in a certification of service form (N215) which will confirm you have followed the correct procedures.
Note the above will apply even when the tenancy is periodic (i.e. when the tenancy continues on a ‘rolling’ basis after the first term expires).
But in this scenario, you should allow for the further time covered by the rent for the tenant to stay.
If you haven’t complied with your obligations as a landlord, you will not be able to serve a Section 21. For example, if the tenancy started after April 2007 and you did not place the deposit in a custodial scheme, your case will be rejected.
Once a Section 21 notice has been served under a fixed term Assured Shorthold Tenancy (AST) or periodic AST, possession proceedings must be started within 6 months from the date the notice was given.
If you do not do this, the possession notice could become invalid. You will then have to start the process again from scratch.
*Note that, although not formally enacted, there currently discussions to abolish Section 21.
Section 8 Notice
This is used to gain possession of a property during a tenancy term due to a breach of contract by the tenant.
There are 17 grounds of possession listed in this legislation, but it’s usually used when there are two or more months of rental arrears.
Many see Section 8 notices as a ‘last resort’ as it can make things complicated if you have a difficult tenant and things have to go to court.
Even if there is a breach, many legal experts suggest serving a Section 21 notice as possession is mandatory and there is less chance of delays.
Serving a Section 8 may be a better option if you haven’t complied with the deposit scheme legislation.
Sometimes it’s a good idea to serve both Section 8 and 21 notices but much will depend on your individual case. We would suggest seeking professional advice before acting.
Remember it can be risky to sell a property if there’s no guarantee of vacant possession before exchange of contracts. You will need to demonstrate proof (i.e. that the tenant has officially vacated and left keys).
For this reason, it’s sometimes better to wait until there is clear evidence that the tenant has left the property before you sell. The buyer will then be assured that full possession can be obtained on completion without any issues.
Selling to Another Landlord
If you do decide to sell to another landlord with a tenant in situ, remember that you’re likely to be dealing with a more savvy buyer.
Buy-to-let investors, for example, are likely to take a detailed look at key fundamentals surrounding the property such as gross/net yield and return on investment (ROI), so be sure to have your rental property balance sheet at the ready. Also, remember that many will factor in the extra risks of operating in the space as well.
In order of priority, you’re likely to be asked for the following (the more you can provide, the better):
- The current Assured Shorthold Tenancy (AST) agreement and information about the tenant(s);
- Information about the other occupants at the property and how the rent gets paid (for example, if there is a head tenant or specific family member that pays the rent);
- Bank statements or approved accounts demonstrating rental receipts/voids;
- Confirmation of any notices served in the past and other relevant documentation;
- Evidence that the deposit has been correctly lodged at the appropriate custodial scheme (Deposit Protection Service, Tenancy Deposit Scheme or MyDeposits). In most cases, the solicitor will transfer these funds directly to the landlord buyer;
- An up-to-date Energy Performance Certificate (EPC);
- Evidence of the mandatory completion of the annual gas checks (CP12);
- A minimum ‘satisfactory’ Electrical Installation Condition Report (EICR);
- Confirmation that any furniture to be left at the property is fire retardant;
- Credit referencing reports (Experian, Equifax, Call Credit);
- Character references from employers and/or previous landlords;
- There is no evidence of outstanding works or tenant complaints;
- A detailed inventory report from when the tenant first moved into the property;
- Evidence of a working smoke / carbon monoxide alarm;
- Evidence that the tenant has received a copy of the Department for Communities and Local Government (DCLG) ‘How to Rent’ Guide;
- Evidence of a Legionnaire’s disease risk assessment.
Buyers will seek assurance from their solicitor that the transition will be smooth. Your solicitor should check that the buyer has the right kind of finance (specifically for buy-to-let) in place.
Often, it makes sense for completion to fall on the same date that the rent is due. This means that there are no rental apportionments to deal with and the transition between you and the new landlord is much simpler.
Note that if the payments are made to a lettings agent, with whom the buyer wishes to remain with, they should be notified. If not, the buyer’s conveyancing solicitor will also need a letter of authority from the seller that the tenant will pay rent to the new landlord buyer.
The buyer’s solicitor should ensure the Section 48 notice is correctly served. This means the new landlord must inform the tenants in situ that the property interests have been legally passed over in line with Section 3 of the Landlord and Tenant Act 1985.
Note also that any existing tenancy agreement will remain valid under your name, even though there is a new owner.
Other times, property owners enter into a type of commercial lease with a more proactive landlord and subsequently split the profits – also known as a “rent to rent” or “guaranteed rent” arrangement.