Swapping/ Changing ASTs

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  • Swapping/ Changing ASTs

    Hi
    Just curious if you issued an AST that had some clauses that weren't very OFT friendly, if the tenant agreed could you dispense with the old one and issue a more friendly version shall we say.
    If so what would be the best way to go about it and when would you date the agreement from, the day it is signed or from the original date of the AST.

  • #2
    If the tenant is happy to surrender the 'unfriendly' ast and sign a new 'friendly' ast then the new AST would start from the day the old one was surrendered.

    No need though really, the OFT does not make the law, merely gives advice over how it thinks the law should be applied. Any clauses found to be unenforceable would simply be that - they would not void the whole contract.

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    • #3
      As it is in the first 6 months would it be best to give them another 6 months or would you give them 4 months which is what is left. Would this have any consequences with regard to serving notices etc.

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      • #4
        As it would presumable be an AST for the same property and with the same tenants as the current one, I believe that there would be no need to formally surrender the current one: Executing the new tenancy agreement would do.

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        • #5
          Originally posted by jjlandlord View Post
          As it would presumable be an AST for the same property and with the same tenants as the current one, I believe that there would be no need to formally surrender the current one: Executing the new tenancy agreement would do.
          You are probably right, signing the new agreement probably ends the former tenancy by operation of law.

          Originally posted by spare View Post
          As it is in the first 6 months would it be best to give them another 6 months or would you give them 4 months which is what is left. Would this have any consequences with regard to serving notices etc.
          It can be signed for as long as suits both parties. The only thing to watch out for is that an s21(1)(b) served during the first tenancy would not be valid in the replacement one - it would need to be reserved. If the deposit is protected by MyDeposits (& TDS?) the deposit will need reprotecting. This wouldn't apply to DPS.

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          • #6
            Originally posted by jjlandlord View Post
            As it would presumable be an AST for the same property and with the same tenants as the current one, I believe that there would be no need to formally surrender the current one: Executing the new tenancy agreement would do.
            Correct. The new contract automatically surrenders the previous one (assuming T and property are exactly the same as per the original contract).

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            • #7
              Originally posted by spare View Post
              As it is in the first 6 months would it be best to give them another 6 months or would you give them 4 months which is what is left. Would this have any consequences with regard to serving notices etc.
              Firstly, there is no need to grant a new tenancy. The OFT-unfriendly clauses have no relevance to the validity of the contract/tenancy overall, and would only have relevance were there to be a dispute and LL tried to enforce to supposedly unfair terms. At which point a court would decide whether or not the terms were enforceable.

              However, if LL and T nevertheless wish to agree an unnecessary new fixed term contract, it can be any length; and granting a four month term after two months of the original tenancy have expired will have no impact in terms of serving notice other than making any previously served s.21 notice invalid.

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