A tenancy agreement that was previously not an AST but is now, due to law changes

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    A tenancy agreement that was previously not an AST but is now, due to law changes

    Due to the law change on 1st Oct 2010, high value rental properties automatically became AST's

    A new agreement was drafted with the tenant on 6th September 2010 as an AST for the rental property in line with the impending change on 1st Oct.

    Can you still apply for an accelerate possession order in such a case.

    However, we are being told that an accelerated possession order can't be used as it was not always an AST????!?!

    PLEASE can someone help?

    Thanks

    #2
    As at 6 Sept. 2010, it was not an AST. The 1988 Act did not apply at all.
    But, as from 1 Oct. 2010, it became an AST. The 1988 Act does apply.
    All this is true irrespective of the Letting Agreement's wording.
    So, yes, L can seek accelerated possession. Are you L, T, or L's Letting Agent?
    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


      #3
      Thanks Jeffrey

      I'm the L and desperate to get my home back in time!

      The agreement has "The tenancy agreement is not governed by the housing act 1988 as amended by the housing act 1996" dated 6/10/10

      Is this likely to cause me any problems?

      Thanks Smithie

      Comment


        #4
        No. As I explained, the law (not the wording of your documentation) is what decides the point.
        So at first the 1988 Act did not apply; but now it does.
        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


          #5
          Thanks again Jeffrey for your time...

          regards
          Smithie

          Comment


            #6
            Originally posted by smithie View Post
            Due to the law change on 1st Oct 2010, high value rental properties automatically became AST's

            A new agreement was drafted with the tenant on 6th September 2010 as an AST for the rental property in line with the impending change on 1st Oct.
            You say 6th October in your other post. How long was the term of this contract? Have you served a s.21 notice? Assuming you have, what date was it served, when did it expire, and did you obtain evidence of service? Also, if T paid a deposit, did you protect it after 1st October 2010 and provide T with the prescribed information?

            we are being told that an accelerated possession order can't be used as it was not always an AST
            Who told you this?

            Comment


              #7
              Sorry for any confusion - Westminster - facts below

              Term was from 6th Sept 2010 to 5th Sept 2011, previous tenancy agreements being replaced by new annual agreements.
              S21 served - Fixed Term basis 21(1)b - this was issued on 21st April. It expires on 5th July 2011
              The deposit was protected with the DPS PRIOR to 1/10/11, as I understood this was the deadline date for the legislation change as the tenancy agreement is a high value rent above £25k, placed with DPS on 28/09/10.

              The advice was from a eviction website that offered to deal with the case...

              Thanks
              Smithie

              Comment


                #8
                There would have been no requirement for you to protect the deposit until the current agreement ran out, but you did and that's fine. You can use any of the methods for possession that would apply to any AST. So your S21(1)(b) appears to be valid and you can use the accelerated track.
                I offer no guarantee that anything I say is correct. wysiwyg

                Comment


                  #9
                  Originally posted by smithie View Post
                  Term was from 6th Sept 2010 to 5th Sept 2011
                  S21 served - Fixed Term basis 21(1)b - this was issued on 21st April. It expires on 5th July 2011
                  Unless the contract contains a break clause (and you have served notice under the break clause) then you cannot obtain a possession order to take effect before fixed term expiry, nor can your s.21 notice specify that you require possession before fixed term expiry. Please can you clarify; and if there is a break clause, please quote its exact wording.

                  Comment


                    #10
                    Originally posted by westminster View Post
                    nor can your s.21 notice specify that you require possession before fixed term expiry.
                    I can't see that in 21(1) or 21(1)(b) Westminster, can you clarify?

                    Originally posted by smithie
                    The advice was from a eviction website that offered to deal with the case...
                    The point I make to Westminster is an ongoing uncertainty on this site, even the solicitors can not come up with definate answers. Can you reveal the source of your advice, just in case thay have something definate?

                    Comment


                      #11
                      hi the clause states:

                      3. The Term

                      3.1 The term shall be 12 months, commencing on 6th September 2010 and ending on 5th September 2011 inclusive subject to claues 3.2

                      3.2 The Landlord may at any time during the term serve (not less than two months) notice to terminate the tenancy.

                      Please note (I should have made this clear at the outset- sorry). The agreement is for a high value tenancy agreement, i.e. rent above £25K p.a. I understand from 1/10/10 the AST limits changed to include such agreements to be classed as an AST.

                      Thanks

                      Comment


                        #12
                        Originally posted by Snorkerz View Post
                        I can't see that in 21(1) or 21(1)(b) Westminster, can you clarify?
                        It makes no logical sense for OP to say "I require possession on 5th July 2011" if the fixed term has not expired before 5th July (this is in a no break clause scenario, obviously). He may, however, get away with serving notice on 21st April saying "I give you two months' notice that I require possession of the dwelling house".

                        The point I make to Westminster is an ongoing uncertainty on this site, even the solicitors can not come up with definate answers. Can you reveal the source of your advice, just in case thay have something definate?
                        The advice OP is referring to is advice that he could not use accelerated procedure because the tenancy began as a common law tenancy before becoming an AST (I asked him who told him this).

                        Comment


                          #13
                          Originally posted by smithie View Post
                          3. The Term

                          3.1 The term shall be 12 months, commencing on 6th September 2010 and ending on 5th September 2011 inclusive subject to claues 3.2

                          3.2 The Landlord may at any time during the term serve (not less than two months) notice to terminate the tenancy.
                          It would seem that the s.21 is valid, albeit if there is no similar clause allowing T to serve notice T may argue it's unfair.

                          I suspect that even though there may be no technical impediment to applying via accelerated procedure, the court may nevertheless decide to have a hearing to establish the facts.

                          Comment


                            #14
                            Originally posted by westminster View Post
                            It makes no logical sense for OP to say "I require possession on 5th July 2011" if the fixed term has not expired before 5th July (this is in a no break clause scenario, obviously). He may, however, get away with serving notice on 21st April saying "I give you two months' notice that I require possession of the dwelling house".
                            Perhaps OP could clarify the exact wording surrounding the expiry date?

                            The statute does not say that the s21 has to request possession on a certain date - indeed it does not even specify that a date needs specifying so I can not see that the expiry date could have any relevance to the validity of the s21.

                            However, I suggest we agree to differ as this discussion has been had before and there's no point arguing before lunch.

                            Comment

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