Q&As

What procedure could be used to remove a family member from his mother’s home in order for it to be sold with vacant possession. He does not pay rent?

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Produced in partnership with Christopher Snell of New Square Chambers
Published on LexisPSL on 30/05/2017

The following Property Disputes Q&A produced in partnership with Christopher Snell of New Square Chambers provides comprehensive and up to date legal information covering:

  • What procedure could be used to remove a family member from his mother’s home in order for it to be sold with vacant possession. He does not pay rent?
  • Determining the basis of occupation
  • Procedure for possession
  • Possession from a licensee
  • Possession from a tenant
  • Enforcement of possession order

What procedure could be used to remove a family member from his mother’s home in order for it to be sold with vacant possession. He does not pay rent?

For the purposes of this question, we have assumed that the family member who is to be removed from his mother’s home has never paid any rent for his occupation.

The procedure to be used is dependent on the family member’s occupation status and more specifically whether or not they are to be classified as a tenant or a licencee.

Determining the basis of occupation

The court will determine whether an agreement is a lease or a licence by looking at its substance, not the label attached to it by the parties. In Street v Mountford, the House of Lords identified the hallmarks of a tenancy. They are:

  1. exclusive possession

  2. of defined premises

Payment of rent might also be an indication of a tenancy, but in fact rent is not required for a tenancy to exist.

Certainty as to the term of the tenancy is also required. However, that does not mean that a fixed term must be specified at the outset. If a periodic tenancy is created, the requirement of certainty is satisfied by reference to the notice that would be required to terminate that tenancy.

In the scenario described in the question, the key factor is therefore likely to be

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