Substantially the same?

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    Substantially the same?

    Hi all,

    Registered as a landlord, now asking as a tenant with what I thought would be a simple question but I can’t find an answer anywhere online (including this excellent forum which has been very helpful in the past).

    Situation is that on expiry of the first AST I signed a new AST for the same house but only 2/3rds of the garden. I want to establish if this second AST is a replacement tenancy or not, ie whether the change to the premises is enough to mean it is not “the same or substantially the same”.

    You’ll immediately guess that this question is sparked by a S21 notice/deposit protection/etc. It’s not motivated by a compensation claim, just to establish the exact legal position as I’m concerned there is a high risk currently neutral/mildly warm relations with the LL will turn worse (as LL appears determined on a course of action that interferes with peaceful enjoyment and safety which I will need to respond to).

    Many thanks in advance for your views.


    #2
    So new tenancy has 1/3rd less garden? Any price change?

    I think as the property rented has changed it's a new tenancy, but not certain - see what others say...
    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

    Comment


      #3
      Thanks for the swift response, theartfullodger. I'm glad this isn't a completely naïve question.

      Yes, not insignificant price change to reflect reduced scope of let premises. Language and some terms of second AST very different to first - notice periods, additional obligations, etc - if that is also relevant.

      Comment


        #4
        Ultimately it would be down to a judge to answer. Legislation is in s215B(4) of HA 2004 (as inserted by s.32 Deregulation Act 2015.)
        http://www.legislation.gov.uk/ukpga/...4/section/215B
        (4) For the purposes of this section, a tenancy replaces an earlier tenancy if—

        (a) the landlord and tenant immediately before the coming to an end of the earlier tenancy are the same as the landlord and tenant at the start of the new tenancy, and

        (b) the premises let under both tenancies are the same or substantially the same.
        I'm not the judge: Substantially the same perhaps/probably? Not sure.


        You could certainly delay the PO at least by requiring a hearing. Normal likely timescales as here...
        https://england.shelter.org.uk/housi...eviction_takes
        I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

        Comment


          #5
          Many thanks once again for the response and advice. Just to clarify that I'm not looking at ways to use a hearing to delay as don't want to get into that game, just to understand the situation (and learn as a LL).

          Comment


            #6
            The legislation clearly allows for the situation where the property in the subsequent tenancy agreement isn't identical.
            How much it has to be "the same" to be "substantially the same" would be a matter of fact, not law - so it would depend on the very specific circumstances.

            I don't know that "substantially" has a specific legal meaning, so the word would be as it is in English. Which seems to me to be more than mostly and less than almost exactly.
            Personally, a property with a garden and the same property with a garden 2/3rds the size seems to meet that threshold.

            Unless the garden was vast or otherwise significant enough that 1/rd of it was a lot.
            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

            Comment


              #7
              There must be authorities for what "substantially the same" mean given I don't think this is the only place in landlord and tenant law where the phase appears, but I couldn't find any through a quick Google.

              Speculating, a lease for a property including land (i.e. not a flat), how much less land are we talking about including the bits that the house sit on? A quarter? A fifth? I would say that's arguably significant.
              I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

              I do not answer questions through private messages which should be posted publicly on the forum.

              Comment


                #8
                Originally posted by KTC View Post
                There must be authorities for what "substantially the same" mean given I don't think this is the only place in landlord and tenant law where the phase appears, but I couldn't find any through a quick Google.
                Me neither.
                I can't find anything obvious at ICLR either - although most of the references are to things other than land.

                I don't think that all parts of a property are equal (and this is entirely a personal view).
                One property with five rooms and a garden is much the same as one property with five rooms and a smaller garden.
                If you removed a room, that would seem a much more significant change than removing a part of a garden even if both changes reduce the overall dimensions of the property by a fifth.
                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                Comment


                  #9
                  Thank you both for your time and thoughts.

                  I had also hoped there was some authority which I could apply. I’m reluctant to share details on an open forum, but suffice to say we are not talking about a couple of square metres.

                  Thank you in particular for signposting ICLR. I’ve tended to use Bailii in the past but this is much better.

                  The commonality of the phrase “the same or substantially the same” suggests to me that it is a precise term. The lack of any cases applying this to “premises” (well, in the first 1000 I went through) implies it may not be a contentious point with an established test. I’ll keep digging and post if I find out more.

                  Comment


                    #10
                    There are cases but not applicable to this
                    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                    Comment


                      #11
                      Caution is fine on an open Forum, but why ask a Q if not prepared to provide details?

                      Comment


                        #12
                        Hi mariner,

                        My apologies if I’ve breached site protocol. Given responses so far, I didn’t see how sharing more specific detail now would help as there’s uncertainty on the generic rules/principle to be applied.

                        Comment

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