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    #16
    Originally posted by Lyndy Wesley View Post
    No. I received a letter from her solicitor in December discussing the reason why the tenant had decided to drop the monthly rent by £100 and informing me the tenant would leave on 10th April 2010 at the end of the 6 month term.
    I believe this would count as 'written notice'. As such, if the tenant is still in your property (it's not clear) from 11th April you are entitled to charge double rent under the Distress for Rent Act 1737. It may be old, but it is still in force. http://www.statutelaw.gov.uk/documen...19/apgb/c19/18

    Comment


      #17
      Originally posted by westminster View Post
      All that matters is the dates on the signed contract. If it says the fixed term began on 4th October 2009, that's when it began, regardless of when T actually moved in...
      Not necessarily. (I may adopt that as a motto on my coat of arms.)

      If the agreement is not a deed, then the tenancy does not start until the tenant goes into possession. That does not however affect two important things:

      1. The specified start date may still be relevant to determine the end date. If for example the agreement says that the term is "one year starting on 1st January 2010", then the term ends on 31st December 2010 whenever the tenant moves in.

      2. The tenant's obligation to pay rent from the start date is not affected since that is a matter of contract. (Even so, there can be no obligation to pay rent before the date of the agreement unless the tenancy started before the agreement was signed.)

      I will not trouble to go into the position if a deed is involved.

      Originally posted by westminster View Post
      ...- and you were not entitled to delay or prevent the T moving in regardless of uncleared funds. This is why you should ensure that you are in receipt of cleared funds before signing the contract with a tenant.
      Not the case. Assuming no deed is involved, as I said, the tenancy does not start until the tenant goes into possession. What you have is an executory agreement (= one under which obligations remain to be performed). If the tenant does not pay the rent when the agreement says he should then the landlord is entitled to withhold possession. The position is no different from a contract for sale - if the buyer does not pay up you do not complete.

      Comment


        #18
        Originally posted by Snorkerz View Post
        I believe this would count as 'written notice'.
        No.

        A notice (not being a notice exercising a right to break) purporting to end a fixed term is of no effect since the fixed term ends anyway. Even if it did have effect it would not stop section 5 HA 1988 coming into play if the tenant remained in occupation.

        Comment


          #19
          Originally posted by Lawcruncher View Post
          Not necessarily. (I may adopt that as a motto on my coat of arms.)

          If the agreement is not a deed, then the tenancy does not start until the tenant goes into possession.
          Hmmm... I disagree. (I think that should go on my coat of arms).

          "Possession" and "occupation" are different concepts. I think you are confusing the two. Possession does not necessarily (to use your phrase) require occupation.

          You can have "possession" (and indeed "exclusive possession") even though you have not yert occupied the demised property.

          A tenancy therefore starts on the agreed commencement date of the fixed term, because that is the time when the LL has granted the T, and T has, exclusive possession, per Street v Mountford.

          Comment


            #20
            Whilst "occupation" does not include all forms of possession, "possession" can mean physical occupation. I think it is clear that when you say "goes into possession" that "goes into occupation" is meant.

            I think we can agree that in real property law, "possession" can mean:

            (a) physical occupation

            or

            (b) having the right to receive rents and profits.

            Accordingly if you do not have the right to receive rents and profits you cannot be in possession if you are not in physical occupation.

            The effect of sections 52 - 54 LPA 1925 is that a legal estate cannot be created except by deed with the notable exception of "leases taking effect in possession for a term not exceeding three years". Since we are talking about ASTs in this thread we can discount having to consider the possibility of "possession" here meaning the right to receive rents and profits. It therefore must mean occupation.

            Accordingly, there are only two ways to create a lease: by deed and by the tenant going into occupation. A "tenancy agreement" is what it says on the label: an agreement to grant a tenancy; it is an executory agreement only and does not actually create a tenancy. The right to occupation in the future not granted by deed cannot amount to possession.

            Comment


              #21
              Originally posted by Lawcruncher View Post
              Whilst "occupation" does not include all forms of possession, "possession" can mean physical occupation. I think it is clear that when you say "goes into possession" that "goes into occupation" is meant.

              I think we can agree that in real property law, "possession" can mean:

              (a) physical occupation

              or

              (b) having the right to receive rents and profits.

              Accordingly if you do not have the right to receive rents and profits you cannot be in possession if you are not in physical occupation.

              The effect of sections 52 - 54 LPA 1925 is that a legal estate cannot be created except by deed with the notable exception of "leases taking effect in possession for a term not exceeding three years". Since we are talking about ASTs in this thread we can discount having to consider the possibility of "possession" here meaning the right to receive rents and profits. It therefore must mean occupation.

              Accordingly, there are only two ways to create a lease: by deed and by the tenant going into occupation. A "tenancy agreement" is what it says on the label: an agreement to grant a tenancy; it is an executory agreement only and does not actually create a tenancy. The right to occupation in the future not granted by deed cannot amount to possession.
              What of then a tenant who has gone on holiday for 3 weeks?

              He is neither in physical occupation nor having the right to receive rents or profits in relation to the property.

              No. It is something wider than your (a) and (b). Perhaps I would include (c):

              "the right to occupation of the property".

              Comment


                #22
                If L has given possession to T, the fact that T might not be present 100% of the time is irrelevant.
                The main question is just whether T took-up occupation rights. If so, T's personal absence does not affect the position.
                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


                  #23
                  Originally posted by jeffrey View Post
                  If L has given possession to T, the fact that T might not be present 100% of the time is irrelevant.
                  The main question is just whether T took-up occupation rights. If so, T's personal absence does not affect the position.
                  So what is your view in circumstances where:

                  a. a tenancy agreement has been signed on date x, granting a tenancy commencing on date y;

                  b. date y occurs after date x; and

                  c. T does not take up physical occupation until date y + 7 days.

                  Does a tenancy exist for the period date y and date y + 7 days?

                  Comment


                    #24
                    Originally posted by dominic View Post
                    What of then a tenant who has gone on holiday for 3 weeks?

                    He is neither in physical occupation nor having the right to receive rents or profits in relation to the property.

                    No. It is something wider than your (a) and (b). Perhaps I would include (c):

                    "the right to occupation of the property".
                    It has to be a question of degree. Clearly to be deemed to be in occupation does not require round the clock presence in a property. You can nip down to the shops; you can go to work; you can go into hospital; you can go on holiday.

                    However, what we are concerned with here is the "front end". I am having difficulty seeing how "taking effect in possession" in the Act can mean "entitled to possession at a future date."

                    Comment


                      #25
                      Originally posted by Lawcruncher View Post
                      It has to be a question of degree. Clearly to be deemed to be in occupation does not require round the clock presence in a property. You can nip down to the shops; you can go to work; you can go into hospital; you can go on holiday.

                      However, what we are concerned with here is the "front end". I am having difficulty seeing how "taking effect in possession" in the Act can mean "entitled to possession at a future date."
                      No, entitled to possession not at a future date, but commencing from a date which has passed.

                      Comment


                        #26
                        Lawcruncher, there seems to be an inconsistency with your analysis, having had a chance to review the LPA.

                        s.52 states:

                        "(1) All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed.

                        (2) This section does not apply to ... leases or tenancies or other assurances not required by law to be made in writing."

                        a. This section recognises that leases and tenancies "not required by law to be made in writing" are "conveyances of land or an interest in land" and that they may be made other than by deed.

                        b. Note that it also recognises that "leases or tenancies" may be made in writing, by implication.

                        c. Following that logic, it follows that a lease or a tenancy may be made in writing, other than by deed.

                        d. You state that the only way to make a lease or tenancy, other than by deed, is by a co-incidence of factual circumstances, perhaps agreed in a document, but not made or created in a document.

                        However, s.52 on the above analysis, does therefore allow the creation of a lease or tenancy by a written document, not being a deed (how can anything other than a "document" be made in writing?).

                        So a tenancy agreement granting a tenancy, not only is an agreement to grant the tenancy (an executory document, as you say), but it is also a document actually creating (or "making" to use the terminalogy of the LPA) the tenancy.

                        this from Street v Mountford [1985] 2 All ER 289 to back up this view:

                        "The test whether an occupancy of residential accommodation was a tenancy or a licence was whether, on the true construction of the agreement, the occupier had been granted exclusive possession of the accommodation for a fixed or periodic term at a stated rent, and unless special circumstances existed which negatived the presumption of a tenancy (eg where from the outset there was no intention to create legal relations or where the possession was granted pursuant to a contract of employment) a tenancy arose whenever there was a grant of exclusive possession for a fixed or periodic term at a stated rent."

                        The conclusion is that it does not matter that a tenant has not yet begun to occupy premises, he may still have a tenancy of the premises if the tenancy "takes effect in possession". As to the meaning of this phrase, the HL has held in the above case that a tenancy may arise from the grant of exclusive possession. So "takes effect in possession", must include "granting exclusive possession".

                        Comment

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