legality of tenancy agreement

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

  • legality of tenancy agreement

    On 27/8/09 two friends and I signed a joint tenancy agreement (AST) for a house owned by a private landlord and adminstered by a letting agency. Rent is paid directly to the landlord, the letting agency (which is also sales and is run by a solicitor) simply advertised the property, drew up the tenancy agreement and checked references. The day to day management of the property is undertaken by the landlord/owner rather than the letting agency.

    Original joint tenant 'A' wanted to be replaced on the agreement before the end of the AST (27/2/10). Original tenants 'B' and 'C' located a seemingly nice replacement tenant and sent her to the letting agency for credit checks and to begin the transfer process.

    The prospective new tenant seemed honest and nice and had satisfactorily answered questions pertaining to lifestyle (specifically stated when asked that she was categorically NOT a smoker, did not smoke, etc. One of the clauses of the tenancy agreement prohibits smoking in the property and original tenants B and C both suffer from health problems which would be aggravated by smoke. New prospective tenant was cleared by letting agency as having good references and clear credit. New prospective tenant asked to have keys on the day before signing the lease due to moving van issues and proceeded to move her possessions into the house. Posessions smelled extremely strongly of smoke, included book called 'quit smoking now', and new 'tenant' arrived attempting to hide smoking paraphenalia on her person. This prompted a talk in which the new 'tenant' admitted to lying about the smoking issue to gain tenancy. Original tenants informed her that they were no longer willing to sign a joint tenancy agreement and that she would have to begin searching for somewhere else to live, but that they understood that she had nowhere to go that evening and could stay for a few days while she sorted something out. New 'tenant' was extremely upset and fled property in tears, returning later that night to close herself in her bedroom and smoke.

    The next day original tenants rang letting agency to inform them that they would not be surrendering the original tenancy and were not willing to sign a new joint tenancy agreement with the proposed new tenant. Original tenants were informed that new tenant had turned up at opening time eager to sign a contract and had been given some type of tenancy contract in only her name for approximately 1/3 of the monthly rent (no names of original tenants) and that the contract was dated to run from that day (25/1/09) for six months as an AST. The house is let as a full unit and as a joint tenancy, not on a room by room basis. Original tenants immediately informed letting agency that they believe this agreement could not be valid as they had been performing on their current contract for five months and were not surrendering it, and had not signed off on new joint tenancy agreement. Letting agency solicitor claimed that he believed both agreements were valid.

    Through email exchange he has now admitted that the new 'tenant's' agreement is 'unlikely' to be valid but that he refuses to serve her with notice to quit the property. New 'tenant' has not paid rent or deposit (although she would like to do both) and has now been in posession of property for eight days. The original tenants wish to have her removed immediately as they believe she has no legal claim on the property, she has been asked to leave on multiple occasions, and she has made threats to attempt to have original tenants evicted so she can move her friends into the property.

    Letting agent/solicitor expects original tenants to allow new 'tenant' to live rent, council tax and bill free while she allegedly searches for a new property (she claims it may take a month and refuses to agree to any end date to the search). All the while she has not paid anything and is not in posession of a valid contract as the property is currently still under contract to the three original tenants. The original tenants are NOT willing to subsidise her rent for any longer (it has already been a week, worth approximately 90 pounds,) and while she remains in the property the room cannot be let to another person.

    Rent for the last month of the original AST was due today and has been paid in full by the original tenants in order to continue to perform on the original contract that has not been surrendered.

    The other 'tenant' comes and goes at will, is openly hostile to the original tenants and is unwilling to leave the property.

    What can we do?!! The situation is intolerable, we do not have locks on our doors and we know nothing about this person other than that she deliberately lied to us to obtain tenancy. She now has full access to our belongings during the day whilst we are at work and and full access to our home at all hours. We do not wish her to remain in the property, we have asked her to leave repeatedly and we are certainly not willing to allow her to take advantage of free rent, council tax and utilities whilst she searches for another place to live. We have asked the letting agency to serve her with notice to vacate the premises within 7 days as we believe she has no legal right to be here and they have refused, stating that that may cause her to 'dig her heels in' and create problems. The problem has already been created and now we wish to be comfortable in our home again! Please help.

    Specifically, if she has no legal basis to remain in the property due to our prexisting tenancy agreement (and lack of consideration on her part, no rent payment and no deposit) must we go through formal eviction proceedings? Can we change the locks whilst she is out of the property? We don't want to do anything that might be of questionable legality but we no longer feel safe in our home and the letting agency is not being supportive. We contacted the owner and they expressed their desire to retain us (original tenants) and stated that the letting agency should deal with this as that is what they are paid to do...

  • #2
    You must get independant legal advice on this.

    I suspect she is your guest and should only remain there with your permission. I suspect that you should give her reasonable notice to leave which could be a few hours if you cannot trust her, and say that after that she is not longer welcome. You then change the locks when she is out. Look after her gear until she made other arrangements.

    Any trouble, call the police. She has been calculating in the way she has wormed her way in when she knew you were against it. Sounds a bit like fraud.


    As she has no contract with you, if she wants recompense she will have to sue the agent who made the mistake in the first place . The agent should not have let her sign a new tenancy. The tenancy should have been assigned, with all current tenants signing the deed. The agent is being nice to her to cover their behind
    All posts in good faith, but do not rely on them

    * * * * * ** * * * * * * * * * * * *

    You can search the forums here:

    Comment


    • #3
      Originally posted by Bel View Post
      You must get independant legal advice on this.
      Totally agree with this as it's quite a bit different to the normal landlord/tenant issues. I am not a lawyer and this may turn out to be nonsense but my take on this is that, although the original tenants are entitled to quiet enjoyment of their home and have not agreed to the new tenant staying beyond a couple of days, the new tenant has an equally valid tenancy agreement and is also entitled to quiet enjoyment of the property. In other words either side of this dispute could treat the other as a lodger(s) and evict quite lawfully. If this happened the evicted party(ies) would have a very clear claim for illegal eviction against the landlord/agent.

      Comment


      • #4
        Bel, thanks for the quick response!

        I spoke to a solicitor last week regarding the contracts (and whether she had a valid contract/if ours was somehow tied) and the solicitor confirmed that she did not have a valid contract. The letting agency solicitor keeps saying that as we sent her to them to have her references checked and orally stated that we wished her to move in as a replacement for the original tenant that wanted to leave that we are responsible for the situation, and that it is just our good luck that they may not have followed proper proceedure in having us surrender our lease and sign a new lease. Although we did originally intend to live with this person, it is very lucky that we had not yet signed either a surrender document or a new joint tenancy.

        I feel certain that you are correct, and that the letting agency solicitor just wants to cover himself and the firm and does not want to antagonise this new person to the point that she might bring suit. The letting agency solicitor keeps stating that if we change the locks or in any other way prevent her access that we (original tenants) can be done for criminal offense. I suspect this is also a cover and that there is nothing that can be done other than her then suing the agency for giving her a bad contract. It doesn't help that she's a journalist.

        The landlord/owner in this situation is a large public school and the house is practically on their campus. Landlord would be unhappy with police action or lawsuit. Letting agency specialises in high end property sales and also has a pristine reputation (and owner of letting agency and his son the solicitor are both old boys of the school). I don't know if this complicates matters? We really want to keep the lease after our AST expires at the end of February. We haven't had any problems and have (had) an extremely good relationship with both landlord and letting agency.

        Comment


        • #5
          Thanks for the straight talk, Bedlington- you've voiced what is probably our deepest fear!

          [QUOTE=bedlington83;188975]the new tenant has an equally valid tenancy agreement and is also entitled to quiet enjoyment of the property. In other words either side of this dispute could treat the other as a lodger(s) and evict quite lawfully. QUOTE]

          The problem as we see it is that we the original tenants signed an AST for the *entirety* of the property. We've been performing on that contract in good faith for the past five months. How is it possible for the new tenant to have a contract for the same property (not a part of the property, such as a specific bedroom, but the *entirety* of the property) if ours is still in existence, we have not surrendered, we have not assigned the lease and we are not in a contractual joint tenancy with her? To me it seems like there is no way both contracts can be valid, and as ours is pre-existing and has not yet reached the end of the AST period, hers must be void.

          I would really love to hear from one of the solicitors who frequent this forum- I went to law school in the states before giving it up for museum work and know just enough about contract law for this situation to drive me mad.

          Comment


          • #6
            Originally posted by formerlaw View Post
            I spoke to a solicitor last week regarding the contracts (and whether she had a valid contract/if ours was somehow tied) and the solicitor confirmed that she did not have a valid contract.
            If this advice is good then you don't have a problem - you have the only valid tenancy agreement. Like you though I'd be very interested in reading the views of someone suitably qualified and experienced in dealing with complicated housing matters.

            Did the solicitor say why the new contract was not valid?

            Comment


            • #7
              Suppose:

              A grants a lease for five years from 1st January 2010 to B

              and later

              A grants a lease of the same property for four years from 1st February 2010 to C.

              What is the status of the second lease? It is a concurrent lease. It gives no right of occupation to C since A cannot take away from B the exclusive right of occupation he gave to B when he granted him his lease. The second lease operates to assign the reversion of the first lease to C for the period of his lease, that is it gives C the right to collect rent from A and enforce the covenants on the part of A contained in A's lease.

              Without seeing the terms of the agreement with the replacement tenant we cannot be categorical as to its effect except to assert that it cannot give the replacement any rights of occupation. It is entirely possible though that the tenancy granted to the replacement is not invalid and that in exchange for her paying what is one third of the rent she is entitled to receive the whole rent from the tenants entitled to occupation.

              Does the fact that the replacement was recommended by the tenants entitled to occupation and that she was allowed into occupation by them change the position? Legally, I do not think it does. There must though be at least an argument, but not I think a strong one since it is inescapable that the matter was dealt with in completely the wrong way by professionals, that viewing what happened as a whole, it would be equitable to treat the position as if the matter had been dealt with properly.

              Comment


              • #8
                Originally posted by Lawcruncher View Post
                Suppose:

                A grants a lease for five years from 1st January 2010 to B

                and later

                A grants a lease of the same property for four years from 1st February 2010 to C.

                What is the status of the second lease? It is a concurrent lease. It gives no right of occupation to C since A cannot take away from B the exclusive right of occupation he gave to B when he granted him his lease. The second lease operates to assign the reversion of the first lease to C for the period of his lease, that is it gives C the right to collect rent from A and enforce the covenants on the part of A contained in A's lease.
                Alternative view
                Lease2 is invalid, because:
                a. A is bound by lease 1;
                b. A cannot grant a lease for the term of lease1 or anything shorter; but
                c. B could grant an underlease for a term shorter than that of lease1; and
                d. A could grant a reversionary lease for a term longer than that of lease1.
                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
                  Originally posted by jeffrey View Post
                  Alternative view
                  Lease2 is invalid, because:
                  a. A is bound by lease 1;
                  b. A cannot grant a lease for the term of lease1 or anything shorter; but
                  c. B could grant an underlease for a term shorter than that of lease1; and
                  d. A could grant a reversionary lease for a term longer than that of lease1.
                  We have already had this discussion:: http://www.landlordzone.co.uk/forums...ad.php?t=13671

                  Comment


                  • #10
                    What are the options?

                    Jeffrey and Lawcruncher, thanks for confirming the likely validity of both leases. We (original tenants) are now confident she has no legal right of occupation, but we still don't know what courses are open to us to remove her.

                    What is the next step to resolution and removal of this person? Letting agency is unwilling to serve notice to quit property and prefers for us to support her until she finds somewhere else to go. We don't think she's even looking.

                    The letting agency solicitor also recommended that we (original tenants) pay her off to get her to leave. They have also offered to cover her expenses thus far (moving, etc), though are unwilling to cover ours for housing her. I assume they are just attempting to protect themselves from a potential lawsuit brought by the new tenant?

                    What actions are available to us? Ideally we would like to end the situation as quickly and amicably as possible- and we're ethically opposed to paying her to leave.

                    Comment


                    • #11
                      Quoting myself:

                      It is entirely possible though that the tenancy granted to the replacement is not invalid and that in exchange for her paying what is one third of the rent she is entitled to receive the whole rent from the tenants entitled to occupation.
                      Why not drop that possibility into the agent's lap? Hint you may also mention it in passing to the replacement tenant. May help to concentrate their minds on the problem.

                      Comment


                      • #12
                        Originally posted by Lawcruncher View Post
                        Quoting myself:


                        It is entirely possible though that the tenancy granted to the replacement is not invalid and that in exchange for her paying what is one third of the rent she is entitled to receive the whole rent from the tenants entitled to occupation.


                        .
                        Does this hold as the OP says the girl has not paid anything. No consideration.
                        All posts in good faith, but do not rely on them

                        * * * * * ** * * * * * * * * * * * *

                        You can search the forums here:

                        Comment


                        • #13
                          Wait until she goes out, pack up her belongings and leave outside. Change the locks. Make sure you stay at home till she comes and gets her things.

                          If you find her tenancy agreement while you are packing, confiscate it.

                          Comment


                          • #14
                            Originally posted by formerlaw View Post
                            Jeffrey and Lawcruncher, thanks for confirming the likely validity of both leases. We (original tenants) are now confident she has no legal right of occupation, but we still don't know what courses are open to us to remove her.

                            What is the next step to resolution and removal of this person? Letting agency is unwilling to serve notice to quit property and prefers for us to support her until she finds somewhere else to go. We don't think she's even looking.

                            The letting agency solicitor also recommended that we (original tenants) pay her off to get her to leave. They have also offered to cover her expenses thus far (moving, etc), though are unwilling to cover ours for housing her. I assume they are just attempting to protect themselves from a potential lawsuit brought by the new tenant?

                            What actions are available to us? Ideally we would like to end the situation as quickly and amicably as possible- and we're ethically opposed to paying her to leave.
                            Hi

                            I have to say that I prefer Jeffrey's view of the current legal position.

                            You are the lawful tenant. The person entered onto the premises as a bare licensee. She remains on the premises without your permission. You have asked her to leave. That is what she must do!

                            I would add that the new "prospective tenant" is very probably (assuming that she is in full knowledge of the facts) now committing an offence under the Protection from Eviction Act, as is your landlord (albeit as a result of the actions of his or her agent). You are, in Protection from Eviction Act terminology, a residential occupier. In my view you would be perfectly entitled to change the locks whilst she is out of the premises and deny her entry. Equally, I think it is almost inconceivable that an application for an injunction on your part to order her to leave the premises would fail.

                            Good luck!

                            Comment


                            • #15
                              Originally posted by jamesknight0 View Post
                              If you find her tenancy agreement while you are packing, confiscate it.
                              Is that not theft?

                              Comment

                              Latest Activity

                              Collapse

                              Working...
                              X