We regularly receive requests for advice on how to regain possession of a tied cottage when a statutory tenancy comes to an end, particularly in cases where the history of succession is not easily accessible.  

In a recent example, an elderly widow, who had succeeded to a statutory tenancy following her husband’s death some years earlier, died leaving her son in occupation. The landowner wished to take possession of the property but needed to know what rights, if any, the son had in the property and, if he had none, how to achieve his removal efficiently but sensitively. 

Son of tenant had no right to remain

It transpired that the widow’s husband worked on a tenanted farm (part of the landowner’s holding) and thus he was entitled to a statutory tenancy under the Rent (Agriculture) Act 1976 to what is normally described as tied cottage. On his death, his widow succeeded to the tenancy, although it was not granted to her in her own right. When she died, her son who was living with her at the time (but had not been living in the cottage when his father died) remained in the property. Under tied cottage legislation, only a spouse or civil partner living with the original tenant immediately before their death can succeed to the tenancy. In the absence of a spouse or civil partner, other family members can succeed to an assured tenancy but only if they have lived at the property for two years before the death of the original tenant. As his mother was not the original tenant, the son, who was retired, was not entitled to succeed to an assured tenancy and therefore had no right to remain in the house.

Regaining possession

Regaining possession of a property from an individual who considers it home is not always an easy task but the one thing you must avoid is inadvertently creating a tenancy. The following guidance should make the task easier for both landlord and tenant:

  • Do not demand any rent otherwise you risk creating a tenancy with the occupier. However it is reasonable to ask the occupier to pay a use and occupation charge (mesne profits) while he remains in the property;
  • Write and / or visit the occupier to explain that they have no right to succeed to the tenancy and must vacate the property;
  • Although not required, a formal Notice to Quit might help the occupier with an application to the local authority for accommodation;
  • Notify the local authority if housing benefit is still being paid;
  • If the occupier does not leave by the agreed date, you can bring possession proceedings against him as an unauthorised occupier.  If undefended, you should achieve an Order for Possession within 2 to 3 months.

Our advice is to give the occupier a reasonable period of time to leave, where possible, especially if they have been living there for a number of years. A cooperative approach is likely to avert possession proceedings which could become protracted if the occupier opts to defend them. In addition, taking a flexible approach to negotiations may also help: unless time is of the essence, you could agree not to charge any use and occupation for a limited period providing they agree to vacate by a specified date. 

About the author

Dawn Reynolds Partner

Dawn is a lawyer advising on property disputes. She has extensive experience of helping businesses to resolve a broad range of disputes, guiding them through the resolution process, whether that be mediation, arbitration, expert determination, adjudication, tribunal or court proceedings.