fixed term contract for our excluded occupier tennant...

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    fixed term contract for our excluded occupier tennant...

    Hi,

    I am a live in landlord, with a tennant that falls under the category of excluded occupier, as we share more than one room in the flat. We gave him a contract which is signed, (this is an AST assure shorthold tennacy contract - with a fixed term written on this for a year...signed by myself and the tennant.

    I know he doesnt have the same rights as a non sub let tennant, but because this contract has been used (unfortunately on my part) andd it states a fixed term of 1 year - under common law, as the hosing act 1988 and the Protection from Eviction Act 1977 dont apply to him as an excludecd occupier - does the fixed term part of the contract still stand....which means we have to give notice in the last two months of the term of the contract or can we still enforce the notice we gave him 2 weeks ago to move out in two weeks (which is reasonable notice for a excl' occupier tennancy) BUT, the proble here is the terms of the contract - do they still stand?

    IF so, whats my options to still enforce the notice at the end of the month...without having to get a section 21 order - can we still make him move out?

    If the contract had someone else name on the top, which it does, The person who gave us the contract to use (the owner of the property), and yet I(landlord) and he(tennant) have signed this - could the error in the names the contract is between make this a viod contract so our options as a non-fixed term excluded occupier would still stand?

    thanks for any help you may have.

    #2
    Are you saying you rent from property owner (your landlord) but you are landlord of this sub-tenant/lodger??

    He sounds like a lodger to me... and next time suggest you use a Lodger's agreement.

    Not sure it is an AST but as I understand it the relevant terms (rent, what but is "his", rights, notice, payment method/date etc etc etc all stand... but you say the "name at top" is wrong...

    Who in this agreement is named as LANDLORD and who is named as TENANT. If the named landlord is the owner, your landlord then I think it is an AST but probably conflicting with your original AST...

    Who does it say rent should be paid to??
    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

    Comment


      #3
      You have a contract for a minimum period of 12 months. The occupier does have (limited) rights under PfE 1977 and the contract is in addition to those.

      I am not sure why you think you can use section 21 of the 1988 Housing Act when you yorself have stated that it doesn't apply. You can act in accordance with the contract. If you do not act in accordance with the contract, then the occupier can sue for breach of contract.

      It would not be illegal eviction if you gave the tenant reasonable notice (ie as per PfE) but it would be breach of contract. Now it may be that a judge would agree with you that ending the contract was the right ting to do, but as you haven't given us the backstory then I have no way of guessing.

      The error in names is unlikely to have any effect - such a contract does not even need to be in writing.

      Comment


        #4
        thanks for the reply,
        its complicated isnt it, wish we checked the contract fully now before sub-letting the spare room.
        Our lodger is the named tennant, however, even though I have signed the contract and so has the lodger, the name of the onwer of the property is the name at the top - not mine (which was something that was overlooked) so this is a contract between 1. owner, and 2. lodger, yet signed by myself.

        An error on my part for sure for not double checking, but can this make any official parts to the fixed term void.

        Comment


          #5
          When you say "name at top" does it say "Landlord" .... ???

          Did Landlord give you then paperwork to offer to the lodger/tenant?? If so I think Lodger/tenant has an AST between himself & owner/your-landlord.

          Please be very specific: What is the wording when noting the LANDLORD please and to whom rent is payable???
          I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

          Comment


            #6
            Yes the landlord did give us the paperwork to use. It says ...this is contract between, Landlord - 'owners name' and tennant 'lodger name' - it says on there that rent is payable to me, as I was intended as the landlord, and I have signed the paperwork and the lodger...

            Comment


              #7
              Originally posted by theartfullodger View Post
              When you say "name at top" does it say "Landlord" .... ???

              Did Landlord give you then paperwork to offer to the lodger/tenant?? If so I think Lodger/tenant has an AST between himself & owner/your-landlord.

              Please be very specific: What is the wording when noting the LANDLORD please and to whom rent is payable???
              If Owners name is on the contract, and I have signed it(as we had agreed i would be landlord in this matter), rather than the owner, surely this would make this void? If so, the fixed term of 12 months would be no longer applicable and a typical excluded occupier/resident landlord situation takes precident?? Is this possible? We never spoke about the term of the contract, so verbally, for this and the resonable notice to give, would we be legally ok to take the approach?
              thanks

              Comment


                #8
                You appear to be agent for the landlord and your 'lodger' seems to be your landlords tenant. However, your landlord could not offer a tenancy to the lodger whilst you had a tenancy on the same place.

                I presume YOUR tenancy agreement with the landlord is for the whole property?
                How was the lodgers 'property' described?

                If the landlord has given a tenancy of a room that was actually yours, then the contract is worthless to the landlord. However, as the tenant/lodger took the contract in good faith, I have a feeling he/she is still protected by it.

                The tenant/lodger is occupying 'your' space, so it would appear you are the landlord. What is not clear is does the tenant/lodger have tenant rights (which it would appear was the intention of the contract between your landlord and he/she) or lodgers rights, which the current situation (ie resident landlord) would imply.

                What do you think Artful?

                Comment


                  #9
                  Sounds a bit of a mess: I THINK it is an AST (AST don't even have to be written and simply by being offered by the Landlord, signed by T (presumably he has a copy he can wave at court??), rent paid regularly & occupation taken up I suspect a judge would accept this as an AST.

                  If so think you (who appear to be acting as an "agent" of sorts.. or more likely the actual, named, landlord, should issue S21 with min of 2 months notice expiring AFTER last day of rental period... He then does not HAVE to leave & if he doesn't leave LL will have to apply for possession through the court.

                  How is this tenant's rental described?? 33 Acacia Avenue or "Room 2, 33 Acacia Avenue".. and does whatever is described overlap with your tenancy?? Sounds like Landlord may have created a right legal muddle.... Others wiser than me should be along to elucidate and explain if I'm utterly wrong....
                  I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                  Comment


                    #10
                    Originally posted by adm79 View Post
                    If Owners name is on the contract, and I have signed it(as we had agreed i would be landlord in this matter), rather than the owner, surely this would make this void?
                    The contract is not void. There is an agreement to let the room, the occupier has moved in and agreed to pay rent - that creates the contract, even if there was nothing written down or signed. The status of the occupier is determined by the circumstances of the let, not the title given to the written contract.

                    If you rent the whole flat from the owner-landlord, and you let a room to the occupier, and the occupier pays rent to you, then you are the occupier's landlord, the occupier is a licencee (or tenant if you granted exclusive possession of the room) and the licence is excluded under Protection from Eviction Act 1977, i.e. he's an excluded occupier.

                    In addition, when the LL is resident, it cannot be an assured [shorthold] tenancy.

                    Nothing you have said suggests that there was ever any intention of the part of the owner-landlord to grant a tenancy to the occupier. Everyone understood that you would be letting the room, you would be the landlord, and you would be receiving the rent - the owner-landlord simply tried to help out by providing you with a template contract. That being the case, the error on the written contract is meaningless - it's just an error, which you and the occupier know to be an error. The error does not make the contract which exists between you (in writing or otherwise) void.

                    The terms of the contract which do not relate to Housing Act 1988 continue to apply, e.g. how much rent is payable, and when, and the length of the fixed term etc. While you can evict the occupier without a court order (because he's an excluded occupier), you would be in breach of contract if you do so before fixed term expiry, and the occupier might have a case to claim against you for financial losses incurred as a result.

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