6 months AST with 6 months rent paid up front

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    #16
    Attraction of apposites.
    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).

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      #17
      Chambers Dictionary: Apposite (adj.) - Suitable, well chosen, appropriate.
      The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

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        #18
        Tania said..

        I am the letting agent - a colleague at another company went on an ARLA course last week and was told that if a tenant paid six months up front on a 6 month AST then the landlord had to give 6 months notice to get the property back at the end of the agreement!
        and lawcruncher commented
        .
        It would be interesting to know exactly what the lecturer said.
        .
        At the Landlord & Buy-to-Let Show today, NEC Brum, Ian Potter Operations Director of ARLA was talking on "Agents: The Case for Statutory Regulation"... and somehow this point/question came up -no I didn't raise it.... (an interesting and valuable presentation btw... - I'm not a member or an agent)

        He confirmed that 6months up-front means 6-months period (and all that thus flows, e.g. up to 6 months for Notices to take effect .. )and quoted a case: I wrote down "Church Commissioners V Meyer" but cannot find that one on't t'InterWeb... any ideas chaps?? I'll email Ian if I can find him for clarification... He also suggested there were ways round this (I wasn't taking serious notes), I think he suggested if you took 6 months and later 1 week's rent ,,,

        Cheers!

        Lodger

        PS Met Tom Entwistle, Gent of this parish, a great pleasure (well, for me at least)!

        PPS As I said to the wife on the 'phone going into the show, a surprising number of the punters looked miserable and a lot of the punters & exhibitors I might not necessarily trust as far as I could throw them... Tom E excepted, obviously.
        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...

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          #19
          Originally posted by theartfullodger View Post
          He confirmed that 6months up-front means 6-months period (and all that thus flows, e.g. up to 6 months for Notices to take effect .. )and quoted a case: I wrote down "Church Commissioners V Meyer" but cannot find that one on't t'InterWeb... any ideas chaps??
          The case (it's Meya, not Meyer by the way) decided a different point. In that case the agreement reserved a yearly rent but provided that it should be paid quarterly. The tenant argued that following the common law this meant the statutory periodic tenancy was yearly. The Court of Appeal disagreed saying that the wording of the Act had to be followed. The statutory periodic tenancy was quarterly as the agreement provided for the rent to be payable quarterly. You can find the full report here: http://www.bailii.org/cgi-bin/markup.../2006/821.html and a summary here: http://www.practicalconveyancing.co....ew/10098/1124/

          The question in this case is different. The agreement provides for the rent to be payable monthly, but six months' rent was paid at the start. Does that mean the statutory periodic tenancy is six monthly? Again, if we are to follow the wording of the Act, it would seem that the periodic statutory tenancy has to be monthly. The only possible arguments are that there is some collateral agreement that needs to be taken into account or that the agreement should be rectified to reflect what had been agreed. However if it was the intention to collect monthly but the tenant just decided to pay six months' rent, that would I think be different.

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            #20
            Originally posted by Lawcruncher View Post
            The question in this case is different. The agreement provides for the rent to be payable monthly, but six months' rent was paid at the start. Does that mean the statutory periodic tenancy is six monthly? Yes, apparently, even if rent is paid monthly after the end of the fixed period Again, if we are to follow the wording of the Act, it would seem that the periodic statutory tenancy has to be monthly. The only possible arguments are that there is some collateral agreement that needs to be taken into account or that the agreement should be rectified to reflect what had been agreed. However if it was the intention to collect monthly but the tenant just decided to pay six months' rent, that would I think be different.
            Not according to the wording of S.5(3)(e) as argued by a prominent lecturer in law, but then again as I have said, each lawyer can put a different interpretation on any given clause dependent upon for whom they are acting.
            The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

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              #21
              "Payable" means "liable to be paid". If, notwithstanding the clears terms set out in the tenancy agreement, it can be shown that the tenant was liable to pay six months' rent at the start of the tenancy then there may be an argument that any statutory periodic tenancy will be six-monthly. In the absence of any such obligation I think the position is different. It is an established principle that any sum tendered as rent before the date it is due is not deemed to be rent until rent day; it is a sum that the landlord holds to apply as rent on rent day.

              So, if you have a six month tenancy starting on 1st May and rent is payable on the first day of the month, and the tenant pays six months' rent on 27th April, the whole of that sum is held to be applied as rent. When we get to 1st May, only one month's rent is deemed to have been paid and the balance (equal to five months' rent) is deemed to be held to be applied towards further rent when it becomes payable. Come 1st June the rent due on that date is paid and the balance (now equal to four months' rent) is deemed to be held to be applied towards further rent when it becomes payable. And so on. In such a case at the end of the six months even though "six months' rent was paid up-front" it was in fact paid monthly.

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