Q&As

If a tenancy agreement does not exist how can the occupier be evicted from the property? The property belongs to an estate and the executor is refusing to move out and is breaching their duty as an executor as distributions have not been equalised in accordance with the deceased's Will.

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Produced in partnership with Dr David Smith of JMW Solicitors LLP
Published on LexisPSL on 07/04/2021

The following Property Disputes Q&A produced in partnership with Dr David Smith of JMW Solicitors LLP provides comprehensive and up to date legal information covering:

  • If a tenancy agreement does not exist how can the occupier be evicted from the property? The property belongs to an estate and the executor is refusing to move out and is breaching their duty as an executor as distributions have not been equalised in accordance with the deceased's Will.
  • How can an occupier be evicted from the property?
  • What about where the occupier is the executor of the estate?

How can an occupier be evicted from the property?

A tenancy agreement is merely a written expression of a contractual relationship between the parties. The lack of one does not mean that there is no tenancy and the courts will infer a lot of the content of an agreement from various cases as well as statutory elements, such as the Housing Act 1988 (HA 1988) and section 11 of the Landlord and Tenant Act 1985. Therefore, the lack of an agreement is not a bar to a tenancy existing and its terms being enforced, albeit that it is more difficult to do so as the existence of specific terms will need to be proved as opposed to being obvious from the face of the agreement.

However, in a case such as this, the first question to ask is if there is actually a tenancy at all. The question does not make it clear, but the normal scenario in these types of cases is that the person refusing to leave the property is a family member who has been living there by way of permission from the owner for a period of time, usually without any formal payment of rent. In such a case, it is unlikely that there is sufficient clear intention to create a tenancy agreement, or any form of

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