Discrepancy in Tenancy Agreement Dates

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    Discrepancy in Tenancy Agreement Dates

    A new tenancy has just started in my B2L property and having received the counterpart tenancy agreement from the solicitors I have noticed that the Commencement Date within the agreement is 26th June (which when the tenant moved in), but the Agreement has been dated by the solicitors as 27th June.

    Two questions:
    1. Does this discrepancy have any bearing on the validity of the agreement?
    2. Which date must I use as the basis for legal notices in the future?

    I am not worried about chasing the tenant for an extra days rent and I don't think they would be about one days less rent, if this could be a legal possibility based on the answers to the above questions.

    Thanks in advance for any advice.

    #2
    Well normally the contract isnt legall untill it is dated. I have done a few dated before the move in date so the tenant cant back out but never come across your stuation.

    I think this is a question for the forums number 1 man Jeffers.

    Comment


      #3
      Excuse my guess work firstly...

      If you are paying solicitors surely they should be able to advise you - they certainly charge enough!

      I wouldn't have thought the date of signing would make any difference to how valid the contract was, as under the 1988 HA (?) there is a list of ways that an AST is created, and I don't believe that the date of signing or for that matter a signature is on this list. The AST is created by the T moving into the property, and having it as their main residence.

      By signing the contract it does make life easier as the parties have agreed to all of the terms rather than having an oral agreement.

      Having re-read your post, I presumed that you meant the solicitors have dated it as when it was signed, but this may not be the case so really it would need to be clarified by what you mean when you say the solicitors have 'dated it'.

      Someone will be able to give you some more definitive advice I am sure!
      '
      Kind regards,

      John

      Comment


        #4
        On the ARLA legal course they stated the contract isnt valid unless it is dated and signed and then from that date. That is why if you have a tenant moving in at a later date you can set the AST up now and dated from now and they can not back back out even though the moving in date is until a later date.

        Just because solicitor set it up does not guarentee it is ok. They may not have done one before and dont know the implications of how important the dates are when trying to evict.

        It may be ok but as i said i think it is a question for jeffrey.

        Comment


          #5
          I haven't been on an ARLA course so bear with me but you can have an oral AST which would be valid, and this certainly wouldn't have a signed and dated contract.

          The 1988 HA states that an assured tenancy is created when: -

          (1) A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as—

          (a) the tenant or, as the case may be, each of the joint tenants is an individual; and

          (b) the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home; and

          (c) the tenancy is not one which, by virtue of subsection (2) or subsection (6) below, cannot be an assured tenancy.

          So surely, even if the AST is never signed then the contract will still be created once when one of the above points are met.

          In termms of tenants backing out, Jeffrey has made a good post somewhere about how contracts are formed, and off the top of my head consideration is probably the most relevant one here (i.e. money), so a signature and a pound would equal a binding contract, although not an AST until the above points are met.

          That's how I read it all anyway but maybe there are different interpretations!

          Kind regards,

          John

          Comment


            #6
            I understand what you are saying and dont disagree. I suppose it it would be how the judge saw it and who argued their point best.

            Comment


              #7
              Thanks for replies so far.

              In reply to Mavericks' request for more info, the sequence of events was as follows:

              L used Estate Agent to find tenant and, as part of the service, solicitors were instructed by EA to draw up agreement at T's expense. Deposit and first months rent paid to EA.

              Counterpart sent to T for signature, returned in post by T. Original sent to L for signature and returned by hand.

              T moved in to property on 26th.

              On 27th, EA rang S to inform them tenancy had started. S informed EA that T's copy had not been received in post. With hindsight, this should have been verified prior to tenant being allowed to move in!

              Additional counterpart copy produced by S, taken to T who signed and returned to S.

              S put date of 27th on agreement, despite commencement date being stated as 26th. It is the date the T signed it, as opposed to the date the T moved in, but what impact does this have legally, if any?

              As the S was paid by the T, rather than L, I'm not sure they would respond to L and until I have a steer about possible legal issues, I would be cautious about approaching the T.

              Comment


                #8
                So, as T moved-in on 26th, that's when AST commenced- even if Agreement dated on 27th.
                JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                4. *- Contact info: click on my name (blue-highlight link).

                Comment


                  #9
                  Failure to date a document is not fatal to its validity, whatever they say on the ARLA course.

                  If the tenant did not sign the counterpart until the 27th it was perfectly correct for the solicitor to date it that day. Whilst it may not necessarily be wrong to backdate a document when there is no intention to deceive, it is a practice best avoided.

                  If the tenant paid rent and went into occupation on the 26th, then clearly a tenancy started on that date. If the landlord's part was dated the 26th then that is the date the fixed term tenancy started - since the execution of a counterpart by the tenant is not essential, it does not matter what date the counterpart bears.

                  If the landlord's part was dated the 27th, then a new tenancy arose on that day supplanting the oral tenancy created by the tenant paying rent and going into possession on the 26th.

                  So, when serving a S.21 notice the initial six month period is calculated from the 26th.

                  However, the fixed term created by the tenancy agreement is determined entirely by what is said in the agreement.

                  Comment


                    #10
                    Yes. In fact, most long leases have commencement dates well before completion dates.
                    Reason: so that all lease in block have exactly the same start dates.
                    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                    4. *- Contact info: click on my name (blue-highlight link).

                    Comment


                      #11
                      Thanks, Lawcruncher & Jeffrey.

                      I suspect that both parts are dated the 27th, as they were sent out at the same time by the same person. I haven't approached the tenant to check, yet though.

                      The term of the tenancy, as specified in the agreement, is "A term certain of six months commencing on and from the Commencement Date and expiring on 25th December 2008".

                      In other words, the tenancy expires on 25th December but, according to your reply Lawcruncher, it arose on 27th June 2008, supplanting the oral tenancy of 26th June, so the tenancy wouldn't be for six months. It would seem either the term has to be reduced by 1 day, or the tenancy has to have arisen on 26th, in order for everything to be in order.

                      After seeing some of the posts on decisions made by courts in this forum, I am concerned that any notice I give may be deemed invalid, or even the whole agreement questioned, or worse!

                      Comment


                        #12
                        Is the Commencement Date stated to be 26th June? If it is there is no inconsistency as, although the tenancy created by the agreement did not start until 27th June, the term can still be calculated from an earlier date.

                        Comment


                          #13
                          Yes, the Comencement Date is 26th.

                          Thanks, Lawcruncer, thats the clarification I wanted.

                          Comment

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