Old house sale failed; can we cancel tenancy of new house?

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  • jeffrey
    replied
    Originally posted by dominic View Post
    That does have a definite term (of 1 month, usually), it just gets renewed.

    By definite term, I mean you can't grant the tenancy for the length Mr X's life, for example.
    True, but- by the Law of Property Act 1925- an attempted lease for life is construed as a lease for 90yrs. terminable after T's death.

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  • dominic
    replied
    Originally posted by jeffrey View Post
    Ah, I see. Well, it's not essential to specify a definite term. One can let on a contractual periodic tenancy, for instance.
    That does have a definite term (of 1 month, usually), it just gets renewed.

    By definite term, I mean you can't grant the tenancy for the length Mr X's life, for example.

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  • jeffrey
    replied
    Ah, I see. Well, it's not essential to specify a definite term. One can let on a contractual periodic tenancy, for instance.

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  • dominic
    replied
    No lawcruncher seemed to be suggesting that if you used a deed to create a tenancy, there need not be exclusive possession, or a definite term of years.

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  • jeffrey
    replied
    Originally posted by dominic View Post
    Yes, a little digging and I found this case:

    Fatac Ltd v Commissioner of Inland Revenue (2002) 3 NZLR 648 at (41)

    not binding as New Zealand, but it supports your view, that rent is only required to satisfy the contractual; consideration point, so if it is made by deed the only ingredients are:

    a. exclusive possession; and
    b. definite term.

    However I know lawcruncher has a different view on this. S/He seems to think a tenancy may be created by deed *or* with the above ingredients + rent.
    Lawcruncher's view is the same as yours, surely. To create a Lease/Letting at law demands use of a Deed unless:
    a. there is contractual consideration (= premium or rent or both or T's paying outgoings); AND
    b. the term does not exceed three years.

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  • jeffrey
    replied
    A better case reference might be a 1988 Court of Appeal decision: Ashburn Anstalt v. Arnold and W.J. Arnold Company Ltd.
    See http://www.bailii.org/cgi-bin/markup...method=boolean.

    The Letting Agreement had stated that T "shall be at liberty to remain at the property as Licensee and to trade therefrom...without payment of rent or any other fee to [L] save that [T] shall pay all outgoings so long as it is in occupation of the property".

    The CA decision referred back to an earlier finding by the same Court in previous 1987 proceedings between the same parties that "the..Agreement created a lease and not a mere licence" (i.e. despite the absence of any monetary rent).

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  • dominic
    replied
    Originally posted by jeffrey View Post
    Yes- rent is usual but it's not essential. In fact, rent is often thought essential only in order to constitute contractual consideration!
    Yes, a little digging and I found this case:

    Fatac Ltd v Commissioner of Inland Revenue (2002) 3 NZLR 648 at (41)

    not binding as New Zealand, but it supports your view, that rent is only required to satisfy the contractual; consideration point, so if it is made by deed the only ingredients are:

    a. exclusive possession; and
    b. definite term.

    However I know lawcruncher has a different view on this. S/He seems to think a tenancy may be created by deed *or* with the above ingredients + rent.

    Leave a comment:


  • jeffrey
    replied
    Yes- rent is usual but it's not essential. In fact, rent is often thought essential only in order to constitute contractual consideration!

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  • dominic
    replied
    Originally posted by jeffrey View Post
    Or if offer/acceptance are not accompanied by contractual consideration.
    But then would it be a tenancy, as no rent would be payable?

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  • jeffrey
    replied
    Originally posted by dominic View Post
    Why? The only requirement for a deed is is the term of the tenancy it creates exceeds 3 years.
    Or if offer/acceptance are not accompanied by contractual consideration.

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  • dominic
    replied
    Originally posted by Bel View Post
    your tenancy should have been signed as a deed if it was in advance.
    Why? The only requirement for a deed is is the term of the tenancy it cerates exceeds 3 years.

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  • Bel
    replied
    Its a bit late now, but your tenancy should have been signed as a deed if it was in advance. If it was not signed as a deed, it would not have carried as much weight regarding your liability to continue with it. There are previous posts on this forum regarding this.

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  • Bel
    replied
    OP; go to citizen's advice about getting a rent refund, or consumer direct helpline.

    It has been said on this forum that a LL cannot receive rent from 2 different parties on one property for the same period of time, so you would be due a refund in that case

    But I have also read something that contradicts the above, but cannot remember when/where.

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  • dominic
    replied
    Originally posted by Paul_f View Post
    You can't actually be held responsible in law to guarantee conditions/clauses within a document of which you haven't had sight.
    That's not true, (assuming the form of guarantee has been properly executed), you guaranatee whatever obligations you agree to guarantee, whether or not you have seen the underlying agreement containing those obligations.

    Donnabailey: don't panic.

    1st:

    Even the worst case scenario is not as bad as you may fear. Given the unfortunate option of being able to afford only your mortgage repayments or the rent, if it were me I'd pay the mortgage repayments.

    The consequences of not paying the rent are that LL could come after you, but it is more likely he'd choose to terminate the tenancy, and possibly chase you for damages (which would be far less than 12 months rent), but I think this would be unlikely unless he was particularly incensed.

    The consequences of not paying your mortgage repayments are that you could lose your home.

    2nd:

    Ask to speak directly with the LL of the rented property, and explain your predicament. If he's commercially astute he may prefer to find a new more willing tenant (able to afford the rental) than keep you as a reluctant one (unable to afford it).

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  • thesaint
    replied
    It is quite normal to take cash for the deposit, so nothing suspicious about that at all.

    Leave a comment:

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