Tenancy Surrender

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    Tenancy Surrender

    To save people wading though my previous posts, in summary I have a tenant who has not paid the rent since November and is now moving out on Monday , which is when I will very gladly accept the surrender of the AST.

    To safeguard myself I was thinking of asking her to sign something saying that she has chosen to surrender the tenancy and that I should use the protected deposit to offset against some of the rent arrears. Would you please advise your thoughts on this, and indeed any other aspect of the surrender that I need to consider. Thank you

    #2
    This is a surrender agreement form which might be useful to you:

    http://www.studenthousing.lon.ac.uk/...er-tenancy.pdf

    You will presumably be deleting the first parts of section 3 (i.e.3,1 and 3,2) in favour of 3,3 and 3,4, but essentially I think it is a case of requiring T to sign something to say she relinquishes her claim to the property.
    'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

    Comment


      #3
      Originally posted by mind the gap View Post
      This is a surrender agreement form which might be useful to you:

      http://www.studenthousing.lon.ac.uk/...er-tenancy.pdf

      You will presumably be deleting the first parts of section 3 (i.e.3,1 and 3,2) in favour of 3,3 and 3,4, but essentially I think it is a case of requiring T to sign something to say she relinquishes her claim to the property.

      Thank you MTG that's 2 good links in 24 hrs !
      Must try harder!

      The Rodent
      A pessimist sees the difficulty in every opportunity; an optimist sees the opportunity in every difficulty.
      W.Churchill

      Comment


        #4
        Originally posted by Rodent1 View Post
        Thank you MTG that's 2 good links in 24 hrs !
        Must try harder!

        The Rodent
        Not just brilliant, but useful too!

        (And that is definitely me I'm talking about, not you!)
        'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

        Comment


          #5
          Hi MTG,

          Just a query on that agreement, if a tenant signs the agreement and then changes there minds, where would that put the surrender. Could you move them out the door?

          Jax

          Comment


            #6
            Originally posted by jax2503 View Post
            Hi MTG,

            Just a query on that agreement, if a tenant signs the agreement and then changes there minds, where would that put the surrender. Could you move them out the door?

            Jax
            No, because I think the only way you can legally 'move anyone out the door' if they are unwilling to be moved, is by a court order. If T did sign, then have a change of heart, LL would have to go down the usual s21, s8 or whatever possession route, as appropriate.

            However, a surrender document signed by T legitimises the LL going in and gaining possesion once the T does vacate. He would have something in writing, if T subsequently decided to accuse him of illegal eviction.

            I'm no expert on this, but I understand that these surrenders are sometimes agreed upon by way of a compromise, e.g. when a T owes rent, genuinely can't pay it; LL agrees to let them go early/not chase for rent, as long as they do go when they agree to.

            It would be hardly fair if such a document were a licence physically to evict, wouldn't it? You can imagine the kinds of pressure some tenants would be put under (to sign) by dodgy landlords. There have to be the ususal safeguards.
            'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

            Comment


              #7
              Many thanks MTG. This is superb for my requirements. As you mentiomed I have made the ammendments and am now ready to take with me tomorrow. Just on question though. Following the surrender tomorrow, should I not be able to find a tenant for say 2 weeks, is that just tough luck on my part, or would the rental debt effectivly continue building up until I find a tenant?

              Comment


                #8
                Originally posted by mind the gap View Post
                No, because I think the only way you can legally 'move anyone out the door' if they are unwilling to be moved, is by a court order. If T did sign, then have a change of heart, LL would have to go down the usual s21, s8 or whatever possession route, as appropriate.

                However, a surrender document signed by T legitimises the LL going in and gaining possesion once the T does vacate. He would have something in writing, if T subsequently decided to accuse him of illegal eviction.

                I'm no expert on this, but I understand that these surrenders are sometimes agreed upon by way of a compromise, e.g. when a T owes rent, genuinely can't pay it; LL agrees to let them go early/not chase for rent, as long as they do go when they agree to.

                It would be hardly fair if such a document were a licence physically to evict, wouldn't it? You can imagine the kinds of pressure some tenants would be put under (to sign) by dodgy landlords. There have to be the ususal safeguards.
                Hi

                I agree that a court order would still be needed to evict, but I think a properly drafted agreement to surrender would in fact be binding and have the effect of bringing the tenancy to an end, (Law of Property Act 1925 s53(1)).

                So, you wouldn't need to go through the section 21 route for possession, although you would of course still be at the mercy of the courts in terms of how long it would actually take to get a hearing once you had issued proceedings. In practice, then, you would be well advised to issue a section 21 as well and plead in the alternative in the event that your application on the basis of surrender fails.

                Preston

                Comment


                  #9
                  Originally posted by Woody View Post
                  Many thanks MTG. This is superb for my requirements. As you mentiomed I have made the ammendments and am now ready to take with me tomorrow. Just on question though. Following the surrender tomorrow, should I not be able to find a tenant for say 2 weeks, is that just tough luck on my part, or would the rental debt effectivly continue building up until I find a tenant?
                  Hi

                  Once you have accepted the surrender as landlord, no further rental liability will arise i.e. no rental payment will be due on what would have been the next rent day. However, if a tenant wants you to refund any part of rent already paid or which has already fallen due, then this is a matter for negotiation and there is no obligation on you to do so unless it is agreed as part of the surrender.

                  So, for example, if the rent is paid monthly in advance and the day when you accept the surrender is half way through the month, you are under no obligation to repay half the rent unless this is agreed as part of the surrender.

                  Whether you do so or not depends, of course, on a number of things, such as how much you want the surrender to go ahead and in turn how important such a refund would be to the tenant in their decision to surrender; and, no doubt, what you think would be the fair thing to do.

                  Have a look at this thread for more discussion of the technicalities around the issue of rent liability and surrender:

                  "Can outgoing T recover his rent once new T is liable?"

                  Hope this helps.

                  Preston

                  Comment


                    #10
                    Originally posted by Preston View Post
                    Hi

                    I agree that a court order would still be needed to evict, but I think a properly drafted agreement to surrender would in fact be binding and have the effect of bringing the tenancy to an end, (Law of Property Act 1925 s53(1)).

                    So, you wouldn't need to go through the section 21 route for possession, although you would of course still be at the mercy of the courts in terms of how long it would actually take to get a hearing once you had issued proceedings. In practice, then, you would be well advised to issue a section 21 as well and plead in the alternative in the event that your application on the basis of surrender fails.

                    Preston
                    Hi

                    Sorry, trying to do things too quickly today. I should have said that this advice assumes that any fixed period, if there was one, has expired, otherwise section 5(5) of the Housing Act 1988 will make the written surrender unenforceable if your tenant doesn't act upon it.

                    Preston

                    Comment


                      #11
                      This form of agreement is not effective unless executed as a deed.

                      Comment


                        #12
                        Originally posted by Lawcruncher View Post
                        This form of agreement is not effective unless executed as a deed.
                        Thank you for pointing that out.
                        'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                        Comment


                          #13
                          Originally posted by Preston View Post
                          Hi

                          Sorry, trying to do things too quickly today. I should have said that this advice assumes that any fixed period, if there was one, has expired, otherwise section 5(5) of the Housing Act 1988 will make the written surrender unenforceable if your tenant doesn't act upon it.

                          Preston
                          I used to think that that was what section 5(5) said, but I do not think it does.

                          The section says:

                          (5) If, on or before the date on which a tenancy is entered into or is deemed to have been granted as mentioned in subsection (3)(b) above, the person who is to be the tenant under that tenancy-
                          (a) enters into an obligation to do any act which (apart from this subsection) will cause the tenancy to come to an end at a time when it is an assured tenancy, or
                          (b) executes, signs or gives any surrender, notice to quit or other document which (apart from this subsection) has the effect of bringing the tenancy to an end at a time when it is an assured tenancy,
                          the obligation referred to in paragraph (a) above shall not be enforceable or, as the case may be, the surrender, notice to quit or other document referred to in paragraph (b) above shall be of no effect.


                          The key words are "on or before the date on which a tenancy is entered into or is deemed to have been granted" and "the person who is to be the tenant".

                          Taking out unnecessary words we are left with:

                          (5) If, on or before the date on which a [statutory periodic] tenancy is deemed to have been granted, the person who is to be the tenant under that [periodic] tenancy executes any surrender which has the effect of bringing the [periodic] tenancy to an end the surrender shall be of no effect.

                          Comment


                            #14
                            Originally posted by Lawcruncher View Post
                            I used to think that that was what section 5(5) said, but I do not think it does.

                            The section says:

                            (5) If, on or before the date on which a tenancy is entered into or is deemed to have been granted as mentioned in subsection (3)(b) above, the person who is to be the tenant under that tenancy-
                            (a) enters into an obligation to do any act which (apart from this subsection) will cause the tenancy to come to an end at a time when it is an assured tenancy, or
                            (b) executes, signs or gives any surrender, notice to quit or other document which (apart from this subsection) has the effect of bringing the tenancy to an end at a time when it is an assured tenancy,
                            the obligation referred to in paragraph (a) above shall not be enforceable or, as the case may be, the surrender, notice to quit or other document referred to in paragraph (b) above shall be of no effect.


                            The key words are "on or before the date on which a tenancy is entered into or is deemed to have been granted" and "the person who is to be the tenant".

                            Taking out unnecessary words we are left with:

                            (5) If, on or before the date on which a [statutory periodic] tenancy is deemed to have been granted, the person who is to be the tenant under that [periodic] tenancy executes any surrender which has the effect of bringing the [periodic] tenancy to an end the surrender shall be of no effect.
                            Yes, so is your point that if the deed of surrender is drated to take effect before the end of the fixed period then it is enforceable? If so, I see your point. Has this been tested do you know?

                            Preston

                            Comment


                              #15
                              Think. It means only that T cannot surrender the periodic tenancy before it begins. T could nevertheless surrender:
                              a. the fixed term (whilst it is running); or
                              b. the periodic tenancy (once it is running).
                              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

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