no tenancy agreement

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    no tenancy agreement

    Subject : write tenancy agreement
    I am a landlord and I bought a property 9 years ago with sitting tenants .... The tenants say they do not have an agreement and when I bought the property the solicitors did not mention it either - Can I as a landlord write my own tenancy agreement and get it signed by the tenants if they agree - or should I get these ready to buy ones......

    #2
    Originally posted by dylan
    Subject : write tenancy agreement
    I am a landlord and I bought a property 9 years ago with sitting tenants .... The tenants say they do not have an agreement and when I bought the property the solicitors did not mention it either - Can I as a landlord write my own tenancy agreement and get it signed by the tenants if they agree - or should I get these ready to buy ones......
    Dylan. There's already plenty on the forum on this very subject but briefly:-
    1. Your solicitor should probably have been more pro-active in finding out about the tenancy beforehand, as it is important that the price you paid for it reflects the occupation by the tenants and the type of tenancy they had. Did you make any enquiries yourself?
    2. If the tenant has been there 9 years he/she will have an Assured Tenancy, with rights of continued occupation unless a S.20 notice was served on the tenant before they took up occupation stating it was an Assured Shorthold Tenancy, or alternatively a Rent Act tenancy.
    3. You are entitled to a market rent but must use the S.13 procedure by serving a Form 4B Notice (freely available from www.odpm.gov.uk/housing) if you want to increase it for an Assured Tenancy only, for which the tenant has 28 days to reply, and can object to your proposed figure.
    4. You can't write a new tenancy agreement, it would be void, even if the tenant signed it. If the tenant demands basic written terms then you must provide them but it will not entitle you to any greater powers of eviction etc., nor can you impose additional terms on them.
    5. You cannot evict the tenant other than on a breach of any of the Grounds in S.8 of the Housing Act 1988, and you will have to go to court if you ever try this route to prove the breach.


    I would certainly have made more enquiries before buying such a property.
    Last edited by PaulF; 14-05-2005, 11:42 AM.
    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.

    Comment


      #3
      You bought a house 9 years ago with sitting tenants - and your solicitor didn't advise you about the lack of a tenancy agreement?? I'd be wanting to know why as it sounds like very slack practise to me; he/she should have spotted that one a mile off.

      If there is no agreement then you can pretty much assume that no S20 was served either which makes it an Assured Tenancy. Under the HA 1988 you couldn't grant an assured shorthold tenancy to a tenant who had an assured tenancy immediately beforehand. For tenancies granted on or after 28 February 1997 you could change to an AST if both parties agree.

      So you can draft a new tenancy agreement but you can't make it an assured shorthold or give your self any more powers than the original

      PaulF beat me to it.
      My advice is not based on formal legal training but experience gained in 20+ years in the letting industry.

      Comment


        #4
        Post Script!

        Having read again the original post, it's quite conceivable the poster purchased the property with a regulated tenant under the 1977 Rent Act. I wrongly took it that the tenancy was granted 9 years ago but that is probably not the case!

        If that's so then you have no chance of gaining possession until the death of the tenant or their immediate successor, and not necessarily even then!

        My post about underwriting a new tenancy still holds good! You can't, and despite what oaktree says, trying to get the tenant to agree to a new tenancy without advising him to take legal advice first would be a non-starter, as he would be giving up a great deal to no advantage!
        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.

        Comment


          #5
          I have all the necessary papers from the solicitors when I bought the house as it was a cash purchase -
          But I cannot find anywhere a tenancy agreement - or mention of sitting tenants - BUT I know they are as it is just 5 doors away from me - and I know they have been living there for the last 20 years .....
          Where should I look then in these papers ?????

          Comment


            #6
            I've a funny feeling here!

            I would bet a pound to a penny you didn't tell the solicitor it was a tenanted/occupied property, nor did you have a proper inspection carried out by a Chartered Surveyor beforehand! If you had required a mortgage this would have all come to the surface and you wouldn't have been left in this situation. You probably thought it was a "bargain"!

            Your last post tells me you definitely have a tenancy under the Rent Act 1977 but with no written terms. Oh dear!
            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.

            Comment


              #7
              we had a survey done - and we knew it was a property with sitting tenants
              from the Estate Agent ....
              They are very old people in their 70's living there - what worries me is that
              if their children come in the house and occupy the property although they have both said that their daughter is not interested - and they have also said they will sign a new agreement providing we let them live there until they die.... to this we have said 'YES' ...
              But is it legal to write a new tenancy agreement and state that no one else is allowed to stay apart form the tenants named ????.............

              Comment


                #8
                One of the statutory successions of the Rent Act was to allow the tenancy to be transferred, or transmitted, to the tenants family upon death. A clause in a new agreement trying to prevent this would fail as it is a degeneration of the implied terms of the original agreement i.e you're trying to change something they have a statutory right to

                It may be possible for the tenant to agree that they are willing, following legal advice, to surrender the tenancy on their death and they don't wish it to be passed on. I'm not sure whether that could be relied on but I'm sure Paul F will tell us
                My advice is not based on formal legal training but experience gained in 20+ years in the letting industry.

                Comment


                  #9
                  Originally posted by Paul_f
                  I would certainly have made far more enquiries
                  I think it should be "many more"
                  Disclaimer: What I say is either right or wrong. It may be advisable to check what I say with a solicitor. If he says I am right then I am right, unless he is wrong in which case I am wrong; but if he says I am wrong then I am wrong, unless he is wrong in which case I am right

                  Comment


                    #10
                    snigger !

                    Comment


                      #11
                      what do you think I should do ???

                      Comment


                        #12
                        Tee-Hee!

                        Oi've been 'ad!
                        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.

                        Comment


                          #13
                          I know looking back at the papers we have - there is a mention on the purchase of the property letter from the solicitors that the sitting tenants are there for life and that the tenancy is for any members of the family who may have interest .............
                          We asked the old couple and they do not have any children . so they say
                          but how can you tell -

                          so to get round this - we asked whether they have any tenancy agreement from previous landlord - and they say they have nothing in writing ....
                          so we have asked whether they will be prepared to sign an agreement that we make for them - and they have said 'yes' ....as long as they agree what is on the agreement .........
                          BUT will this be legally binding .....????????????

                          Comment


                            #14
                            It doesn't quite work like that. There are defined rules of succession, one of which is that any relative who might be eligible must actually be resident at the property for at least two years prior to the death of any exisiting tenant.

                            It appears therefore that once the the tenants are deceased then you should be able to gain possession without further ado and rent it for a market rent or sell the freehold.

                            Anyone correct me on this?
                            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.

                            Comment


                              #15
                              i feel a bit relieved - but Do you think I should still see a solicitor ????
                              and get something in writing ......??????
                              I am hoping that there are no successors in the family - but how can i find out ??????

                              its becoming quite crucial - as I will soon be made redundant - and this property is my only savings .....although I know that it would bring a better
                              price if I sold it without the sitting tenants - I have to wait until both leave or they die ...but hope that noone else takes over ?? but are there any ways of finding out ............................

                              Comment

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