End of Fixed Term - Married Couple

[EverythingsPeachy]

My Tenants moved in on a one year fixed-term AST (in England), got married and then separated shortly afterwards (she moved out, he is still there).

The fixed-term, on which they are both named, is ending on 8th September and the husband wishes to sign another one year fixed-term (which I am happy with), but the wife wishes to be released from any continuance of the tenancy, or from any new tenancy moving forward (they are both in agreement and it is amicable).

The wife originally paid the deposit (which is protected with the DPS) and is happy to 'sign it over' to the husband so that he doesn't need to pay it again.

Can someone please advise how I should go about this from a best-practice perspective?

Is it as simple as having her sign a Deed of Surrender or should I formally end the whole Tenancy with both of them; refund the deposit to her and then start again with him?

If the latter, should I also create a new Inventory in just his name?

[DPT57]

Its probably best to treat this as a whole new tenancy. Get them to give notice to end the current tenancy and grant a new one in his name only to start immediately after it ends provided he meets affordability criteria etc. You would do a check out, agree any deposit deductions and refund the rest, taking a new deposit for his tenancy based on a new inventory. Anything else is, I think likely to be messy

[jpkeates]

should I formally end the whole Tenancy with both of them; refund the deposit to her and then start again with him?
If the latter, should I also create a new Inventory in just his name?

This is the best option.
The new tenancy will simply replace the previous one.

The deposit will be returned to whoever is the lead tenant with the deposit protection company, so if it's the husband you can probably transfer it with his cooperation.

[EverythingsPeachy]

Thanks both. What is the best way then to undertake a new Inventory, as all of the husband's belongings are already there?

[jpkeates]

You need a condition report rather than an inventory.
You document the condition of your property - bearing in mind that you won't be able to see all of it.

[sam_cat]

Thanks both. What is the best way then to undertake a new Inventory, as all of the husband's belongings are already there?

Inventory lists stuff in the property (ie landlord provided x,y,z), condition report logs condition of everything.

One condition report, end of tenancy/start of new tenancy (as they can occur one moment after each other).

Do it with stuff in situ (realistically its not going to be cleared out, is it), take your time and reference against existing inventory for checkout, noting new condition for the new inventory.
You will want to move rugs/sofas where you can etc.

[ash72]

Start off with a clean slate, as if the ex-husband was applying to be a tenant, then follow the same process as you did. It would then safe guard you. For example if you required to serve notice under s21 you would have to show the original tenancy and the current tenancy, and they may be different as the names have now changed, not exactly sure how that affect things but it's better to be careful, as from my experiences the tenants have much more powers than they probably even know.

[MdeB]

Generally, this is an uncertain area of housing law.
Tenant cannot give notice to end the tenancy at the end of the fixed term, so that is out.

You probably need to get the two tenants to document and sign exactly what they have agreed to between themselves and provide you with a copy with original signatures. This is to cover you if claims of illegal eviction, etc.

I would also ask the wife to provide you with notice that she does not agree to be bound by the agreement beyond the agreed term and does not agree to be party to a statutory periodic tenancy and will vacate the property before the end of the term.

You will then be in a position to grant a new tenancy to only the husband.

Next is the deposit.

If it is in an insured scheme, then you can probably just take out new protection (given that the written agreement is that you may use the deposit in this way).

If it is in the custodial scheme, then I believe that you cannot just move it to the new tenancy.
I would get agreement (documented) with the tenants that
a) the entire deposit is to be returned to you;
b) you will treat the returned money as deposit for the new tenancy; and
c) The deposit for the new tenancy will be deemed paid to you on the day that the tenant notifies DPS to return it all to you.


What is important is that you take appropriate steps to ensure that you comply with the law and have written assurances from the current tenants that you have good reason to do what you are doing.

[EverythingsPeachy]

Thanks very much all - much appreciated.

[Baldie91]

We had a similar case ourselves. The only difference was the lead tenant left, however the partners grandmother had paid the deposit and was demanding it back. The main issue being that the Lead tenant had no right to the deposit. From a legal standpoint that's why your lead tenant in regards to deposit protection should always be the person who paid and if any third parties have paid the deposit this is recorded.

I know the DPS have a system where you can assign a third party as having paid the deposit and that they should receive the deposit once the tenancy ends.

Anyway.... the simplest way to get the new tenancy agreement is to have all parties sign an agreement to surrender and end the current tenancy and then set up a new one. In regards to the deposit, the simplest way is to repay the deposit to the wife and then get it transferred back to yourself. The only potential issue being that you don't receive the money back if they fall out etc. You can also get both to write a signed letter to yourself which you can send to your deposit company, with a copy of the tenancy agreement, stating that the deposit is to be transferred to the partner, however then you have issues with repayment timescales.

Personally regarding the Deposit the best thing you can do is speak to the deposit company and ask them to record the conversation in writing on their system. We had a 3 month struggle with the DPS due to contradictory information by advisers on the phone, but it did get sorted out eventually.