Tenant status query

[jellyfox]

I inherited a property from my mother a couple of years ago which was rented to the same tenant for 12 years. I now wish to sell the property but have had conflicting advice regarding the tenants rights.
Origionally my mother gave the tenant a letter on which it stated that she was giving the tenant a 3 year Assured Tenancy. When this period finished she gave the tenant a letter that stated that they had an 'ongoing tenency', and when I inheritted the property, I too gave the tenant a letter stating that he has an 'ongoing tenancy'. None of these letters are winessed, but are signed by my mother and myself.
Does this mean the tenant is a 'sitting tenant' and that I must sell the house as a going concern with him resident?
The law seems confused on this issue...
or perhaps that's just me!
Any help/advice most welcome
sue

[Preston]

I inherited a property from my mother a couple of years ago which was rented to the same tenant for 12 years. I now wish to sell the property but have had conflicting advice regarding the tenants rights.
Origionally my mother gave the tenant a letter on which it stated that she was giving the tenant a 3 year Assured Tenancy. When this period finished she gave the tenant a letter that stated that they had an 'ongoing tenency', and when I inheritted the property, I too gave the tenant a letter stating that he has an 'ongoing tenancy'. None of these letters are winessed, but are signed by my mother and myself.
Does this mean the tenant is a 'sitting tenant' and that I must sell the house as a going concern with him resident?
The law seems confused on this issue...
or perhaps that's just me!
Any help/advice most welcome
sue

Hi, if you haven't already done so, it would be worth looking at section 19A and schedule 2A of the Housing Act 1988 and possibly section 54 of the Law of Property Act 1925 (available on the statutelaw.gov website).

Your mother purported to create an assured tenancy with a fixed term of 3 years. Under section 54 such a lease should have been created by deed but I think in practice this omission is not significant. More than likely the parties will have created an "equitable" tenancy (if you search on this term you will find various explanations) followed by a standard periodic assured tenancy once the 3 years ended. This appears to have been confirmed by your own and your mother's subsequent letters.

If this is correct, then the resale value of your property will be very much lower than its ordinary open market value with vacant possession. This being the case, you would be well advised to get proper professional advice from an experienced lawyer who can look over the paperwork and consider all the relevant circumstances before coming to a conclusion.

Whatever the outcome, I hope all goes well for you.

[Lawcruncher]

Your mother purported to create an assured tenancy with a fixed term of 3 years. Under section 54 such a lease should have been created by deed but I think in practice this omission is not significant. More than likely the parties will have created an "equitable" tenancy (if you search on this term you will find various explanations) followed by a standard periodic assured tenancy once the 3 years ended. This appears to have been confirmed by your own and your mother's subsequent letters.

Actually section 54 only requires a deed for a tenancy of more than three years; exactly three years does not need a deed.

Where there is a purported grant of a tenancy for more than three years not made by deed, then that operates as an agreement for lease and creates an equitable tenancy. However, if the tenant goes into occupation there will also be a legal periodic tenancy.

[Pepzofio]

I inherited a property from my mother a couple of years ago which was rented to the same tenant for 12 years.

So has the tenant now been there for 12 or 14 years? When exactly did they move in? As if it was before 28 Feb 1997 then they could be on SAT rather than AST.

[jeffrey]

Besides the letters, did mother and T ever execute a Tenancy Agreement of any kind?
If so, what kind?
If not, why not?
A letting pre-Feb 1997 unpreceded by s.20 Notice would be an SAT- so s.21 procedure not available.

[jellyfox]

still confused...

Thanks for your replies guys... but have to admit I'm still flummoxed!
The tenant moved in to the house August 1998. Once the initial 3 year Assured Tenancy had elapsed, a second 3 year Assured tenancy was confirmed (both in an informal letter). The only other documentation regarding Tenancy were as follows;
A letter from my mother dated 21/03/05 stating that the tenant was an ongoing tenent at the property and that the tenancy commenced August 1998.

My letter, dated 30/04/07 stated that the tenant had ongoing tenancy.

A letter form my solicitors stating they enclosed, by way of service on behalf of their client, a Notice, pursuant to S13(2) Housing Act 1988, increasing the rent.

[Preston]

Thanks for your replies guys... but have to admit I'm still flummoxed!
The tenant moved in to the house August 1998. Once the initial 3 year Assured Tenancy had elapsed, a second 3 year Assured tenancy was confirmed (both in an informal letter). The only other documentation regarding Tenancy were as follows;
A letter from my mother dated 21/03/05 stating that the tenant was an ongoing tenent at the property and that the tenancy commenced August 1998.

My letter, dated 30/04/07 stated that the tenant had ongoing tenancy.

A letter form my solicitors stating they enclosed, by way of service on behalf of their client, a Notice, pursuant to S13(2) Housing Act 1988, increasing the rent.

From what you have said, it seems that your tenant is an assured periodic tenant. The periodic tenancy follows the two fixed term tenancies.

An assured tenant has a very high level of security of tenure. The tenant can only be evicted on one of the grounds laid down in the Housing Act 1988.

The section 13 notice is the standard means of increasing the rent on an assured tenancy where there is no provision in the agreement dealing with such increases.

[jellyfox]

Hmmmm...
I've got my head around the whole 'periodic tenancy'.
However...
It appears that the tenant is in possession of legal documents from the past (not actual tenancy agreements), which refer to them as an Assured Tenant. Surely this will take precedence?

[Lawcruncher]

"Assured tenancy" and "periodic tenancy" are not incompatible since an assured tenancy can be periodic.

We have a slight problem as all assured shorthold tenancies are assured tenancies. Accordingly stating that a tenancy is an assured tenancy does not necessarily rule out the possibility that it is an assured shorthold tenancy. On the other hand a landlord stating before it begins that a tenancy is not an assured shorthold tenancy does rule out the possibility that it is an assured shorthold tenancy.

Only someone seeing all the relevant documents can express a view as to whether the tenancy is an assured shorthold tenancy.

[jeffrey]

Guidance, assuming a new letting on/after 28 February 1997:
1. Does Housing Act 1988 apply (see its Schedule 1)?
2. If it does, the letting is an ASSURED TENANCY in which case is it a STANDARD ASSURED TENANCY (see its Schedule 2A)?
3. If it's not an SAT, it's an ASSURED ASSURED TENANCY.