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This has been very helpful. I do believe that I created a tenancy without realising it was due to exclusive possession. However, my lodger agreed to this because she had failed to provide me with her documentation before moving and I agreed that she could come on a lodging basis and I would check out her documents subsequently. I then discovered that she had provided me with fraudulent payslips and had been in a previous tenancy and left rent arrears, and also she had a high court sheriff serve her a distress warrant for another reason. Not sure if this was a landlord or some other debtor. Either way, this is not someone who I wanted to be my tenant, and under the basis of the lodging I had planned not to renew the agreement with her.
However, as the council determined it was a tenancy she was able to remain and embroil me in a protracted eviction process, and I just wanted to know if they had the right to do that by law. I believe that the tenure should have proceeded as a lodging and I should have been able to evict her on the basis of the lodging agreement that was signed between us.
They wrote it in the decision letter to the lodger when she approached as homeless. They said she is my tenant and not my lodger, and that she should not leave the accommodation unless they say so, otherwise intentionally homeless, and must get a court order and bailiff warrant.
It also seems to me that the council are acting illegally by telling the tenant to await a bailiff warrant. A bailiff warrant should be necessary if the person fails to leave of their own volition. They are essentially encouraging people to break the law as set out by the judge. I do feel there is a legal challenge here.