'Contractual'/common-law tenancy outside 1988 Act

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    'Contractual'/common-law tenancy outside 1988 Act

    Hi

    I am just going over the rental agreement for my stepson (1 of 4 tenants) and am not quite clear on the implications of a clause.

    The agreement started August 08 and is for a fixed period of 12 months with no break clause.

    The agreement is headed 'Tenancy Agreement - For letting a furnished dwelling house on a Contractural Tenancy'

    and a clause says 'This Agreement is intended to create a Contractual Tenancy outside the Housing Act 1988.'

    My question is: Is this an AST or not and if the answer is not what difference does it make?

    #2
    is your stepson occupying a room where the landlord is in fact a living? The 1988 act exclusions only really apply on very few instances such as lodger agreements, holiday lets or the tenant does not intend to occupy this home as his principal occupance... Oh and if the rent is over 25k...
    [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

    Comment


      #3
      There are three possibilities.
      1. 1988 Act applies, because letting meets requirements in s.1. AST, because no exclusions in Schedule 2A.
      2. 1988 Act applies, because letting meets requirements in s.1. Not AST (so SAT), because of exclusions in Schedule 2A.
      3. 1988 Act does not apply, because:
      a. letting does not meet requirements in s.1; or
      b. exclusions in Schedule 1.
      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


        #4
        The letting is a ordinary house where the entirety of the house is let out to 4 named tenants, under a single tenancy agreement i.e. not room by room. The landlord does not reside in the house and as far as I am aware never has.

        I have just checked and the yearly rent is just over 25K so i assume that is the reason that it is phrased this way.

        I think the practical difference is that in this case there is no requirement to protect the deposit, are there any other major ones?

        Q: The agreement says both tenent and landlord have to give 1 months notice - either a month before the end of the term or later. Is this enforcable in this case?

        Q: The reason that this all arose is that stepson would like to move out. My initial position is that he is basically locked in for the 12 months, is this correct? The only way to end the tenancy would be to persuade the landlord to release all the tenants early and they move out - the problem being that I cannot imagine why he would do that.

        Comment


          #5
          Originally posted by fletchj View Post
          The letting is a ordinary house where the entirety of the house is let out to 4 named tenants, under a single tenancy agreement i.e. not room by room. The landlord does not reside in the house and as far as I am aware never has.
          So it sounds like the Act will apply- despite the Agreement saying otherwise- unless Schedule 1 disapplies it.
          An example under Schedule 1 is if the rent is at a rate exceeding £25 000 per year.
          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


            #6
            Originally posted by jeffrey View Post
            So it sounds like the Act will apply- despite the Agreement saying otherwise- unless Schedule 1 disapplies it.
            An example under Schedule 1 is if the rent is at a rate exceeding £25 000 per year.
            which it does as the total yearly rent is over 25K

            Comment


              #7
              Originally posted by fletchj View Post
              which it does as the total yearly rent is over 25K
              OK! So the Agreement is correct. Neither the 1988 Act- not even s.8/s.21 Notice procedures- nor Deposit Protection rules will apply.
              The Agreement operates more or less literally except for the impact of:
              a. the Protection from Eviction Act 1977; and
              b. s.11 of the Landlord and Tenant Act 1985.
              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


                #8
                Originally posted by fletchj View Post
                Q: The agreement says both tenent and landlord have to give 1 months notice - either a month before the end of the term or later. Is this enforcable in this case?
                Assuming the agreement is drafted properly, then yes.

                Originally posted by fletchj View Post
                Q: The reason that this all arose is that stepson would like to move out. My initial position is that he is basically locked in for the 12 months, is this correct? The only way to end the tenancy would be to persuade the landlord to release all the tenants early and they move out - the problem being that I cannot imagine why he would do that.
                Yes, as a joint tenant he is jointly and severally liable. At the end of the fixed period, he can give notice to quit and this notice (provided it is properly drafted) will have the effect of ending the tenancy whether or not the other tenants agree. During the fixed period he needs the landlord and the other tenants to agree to end the tenancy early, or all the tenants to agree to an assignment of the tenancy into the names of the remaining three. And the latter option must be permissible under the agreement or the landlord must give consent.

                Preston

                Comment

                Latest Activity

                Collapse

                • Reply to MCOL & PCOL
                  by jpkeates
                  Thanks for the update, good to know.
                  30-11-2021, 10:05 AM
                • MCOL & PCOL
                  by OS7
                  Hello Everyone,

                  Via Section 21,i have recently been granted a possession order for my property to happen in middle Jan 2021. The tenants are claiming housing benefit and they owe rent arrears and monies just under £7000 - I have applied for MCOL and now currently waiting to request judgement...
                  04-01-2021, 14:16 PM
                • Reply to MCOL & PCOL
                  by OS7
                  Just to close of this thread : telephone hearing took place and after a lengthy hearing - the defendants application to set aside CCJ was dismissed and a CCJ with an instalment order was ordered by the Judge. He said he saw no real prospect of the defendant defending the claim, however to resolve he...
                  30-11-2021, 05:44 AM
                • Reply to Am I a lodger or a tenant?
                  by AndrewDod
                  Even if you are an AST "tenant", you are tenant of Sarah, not a tenant of Sarah's landlord. If Sarah ceases to be a tenant that does not make you a tenant of Sarah's landlord (nor does any deposit you paid to Sarah have anything to do with Sarah's landlord).

                  Sarah's right of...
                  29-11-2021, 23:05 PM
                • Am I a lodger or a tenant?
                  by Bert1e
                  Hello, I have a question about my legal status in private rented accommodation.

                  I live in a private rented house. The entire house is rented from the landlord by one individual (let's call her Sara). Sara has a bedroom in the house and a lot of stuff in the cupboards all around the house....
                  28-11-2021, 12:13 PM
                • Reply to Section 21 and Gas Certificate
                  by jpkeates
                  There's not normally an issue with the gas certificate timing other than the very first one.
                  That said email is not how you give people documents like that, unless the tenant has agreed to be served them by email.
                  29-11-2021, 18:16 PM
                • Section 21 and Gas Certificate
                  by Mr. Sparkle
                  About 3 weeks ago I had a gas certificate issued.

                  I forgot to email the tenant a copy of the document.

                  I plan to evict the tenant with either a Section 8 or 21 and want to know whether there is any issue regarding the delay to give the tenant the gas cert?

                  There...
                  29-11-2021, 14:15 PM
                • Reply to Section 21 and Gas Certificate
                  by theartfullodger
                  No idea if the GSC you have is OK or not (1st place, you don;t say) or what the timing is for when it should be served. So difficult to answer.

                  But...


                  s8 not an issue

                  s21 see
                  https://nearlylegal.co.uk/section-21-flowchart/

                  - there's...
                  29-11-2021, 17:50 PM
                Working...
                X