Think tank

What is the status of this person? Can we collect the rent owing since he moved in? Can we force him to sign a tenancy? If not, how can we demand current rent?

There is no need for a formal tenancy agreement to be signed to create a tenancy at law. An assured periodic tenancy (which I assume was intended to be granted here) can take effect without the need for a written document.

All that have to be present are the necessary elements of a tenancy – exclusive possession at a rent for a term. This means the occupant is your tenant. Since there is also an implied obligation on any tenant to pay their rent, he will owe you rent from the date he moved in: he was told the amount in the offer letter.

The grounds for possession under the 1998 Housing Act are available whether or not there is a written agreement, so you could take possession action on the grounds of rent arrears if the tenant refuses to pay the difference.

Interestingly, if the tenant went into occupation in 2002 without a written contract stating that he was an assured non-shorthold tenancy, then he could be construed as an assured shorthold tenant. We would have to look at the offer letter to see whether this constituted a notice that it was not to be an assured shorthold tenancy.

Any doubt on this score, however, should persuade the tenant that his best bet is to sign a tenancy agreement and pay his arrears and current rent.

Nick Billingham, Partner and head of housing management litigation at law firm Devonshires

Assured tenant's succession
As a society, we were bequeathed property that has been converted into five flats. In one of the flats, we inherited a 33-year-old succession tenant who is not social housing – he has an assured tenancy. We are hoping in the new year to sell this property to another charity, and are offering this tenant alternative accommodation, which he is scheduled to view next month.

However, some while ago his partner moved in, residing purely as a guest. The question is, where does his partner, who is also male, stand with regard to setting up a new assured tenancy agreement? Are we obliged to place the partner on the tenancy agreement as a joint and several tenant, or do we set up an assured agreement with the existing tenant's name only?

There is only one succession right under the 1998 Housing Act for assured tenants regarding a surviving partner. Once there has been a succession, whether under the act or by survivorship, if the original tenancy was a joint tenancy there is no further statutory succession. Therefore, in this instance, the partner cannot succeed to the existing tenancy. The society, as with many RSLs, may have offered greater contractual rights allowing for a wider range of potential successors. You should check the original tenancy or any subsequent variations for additional contractual rights that may have been granted.

If there are no additional rights, the tenancy for the new property can either be in the sole name of the tenant or, if the society agrees, a new joint tenancy can be issued in the name of the existing tenant and his partner.

There is no obligation on the society to allow the partner to become a joint tenant but, if this is agreed, the tenancy will automatically pass to the survivor on the death of either of the joint tenants.

Earlier this year, the Court of Appeal ruled that the word "partner" includes a partner of the same sex. So, where a tenant dies, the partner is entitled to succeed to the tenancy as a surviving spouse.

So, it is down to whether the society wants to offer a new joint tenancy (though it is not obliged to), or retain the current tenancy position at the new property by the existing tenant, with the partner as a guest.

Rosemary Hart, Partner and housing specialist, Trowers & Hamlins

Has anyone seen our tenant?
We have an assured tenant who appears to have gone away. We don't know where she has gone but neighbours say they haven't seen her for months. Can we terminate the tenancy? If so, can we just take possession or do we have to go to court?

If the tenant has left for good and has no intention of returning, then she will have lost security of tenure as an assured tenant. However, you still need to terminate the residual common law tenancy by serving four weeks' notice to quit (assuming she is a weekly assured tenant). Once the notice has expired, you can treat the tenancy as terminated.

If it remains clear that the tenant has gone and is not coming back, you do not need to go to court. You can take physical repossession of the property, do your void works and relet. You should only do this if you are convinced the tenant has gone and, in order to be sure, you will have to check the property.

If the property is clear of all belongings, then this is good evidence that the tenant has no intention of returning. However, if you are in any doubt, you must apply for a court order before taking possession and reletting.

Nick Billingham, Partner and head of housing management litigation at law firm Devonshires