When does a tenancy become legally binding?

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    When does a tenancy become legally binding?

    I have signed a tenancy on a house for 12 months in June. I haven't moved in yet as the tenancy is to commence in October but my situation has changed significantly since signing the contract and I am not in a position to move into the house. I have notified the agency and gave my notice in July (they require 1 month notice) but they claim I am still liable to pay the rent unless and/or until a replacement tenant is found.

    I was recently told by a landlord I know that a tenancy in fact does not become legally binding until a move in date as the contract is only an agreement to create a tenancy. Until the commencement, i.e. the move in date, a tenancy as such does not exist. Is that the case? I read something similar on this forum as well? Can I get out of the contract on the grounds that i have given over 2 months notice and have not, as yet, moved in?

    Any advice would be much appreciated.

    #2
    Is this a student Let?

    Comment


      #3
      The tenancy and the contract for the tenancy are two separate things that (essentially) normally operate in parallel.

      From the sound of it, the tenancy can't have begun.
      The contract exists, and the terms of that contract exist.

      I am not sure why you gave notice, as that simply reinforces the existence of the contract,
      however it is probably invalid as the contract hasn't yet begun to operate.

      The landlord has an obligation to mitigate their loss - by trying to find a replacement tenant.
      But it's hard to prove that they're not trying hard or at all.

      Have a look at the contract - are you required to pay a deposit?
      What does it say about if you don't, or if you don't pay rent?

      I'd try a real sob story in writing about how your circumstances have changed, that you can''t honour the contract and do nothing.
      They'll have to sue you for any loss, and I don't see how you can be better or worse off than now.
      And the landlord/agent might just think its easier to rent the place to someone else.
      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

      Comment


        #4
        Originally posted by jpkeates View Post
        The tenancy and the contract for the tenancy are two separate things that (essentially) normally operate in parallel.

        I am not sure why you gave notice, as that simply reinforces the existence of the contract,
        however it is probably invalid as the contract hasn't yet begun to operate.
        Thanks - but what does that mean in practice? So if contract has not yet begun to operate, does it mean there basically is no contract? And I can withdraw from taking up the tenancy? The 'notice' was just an email to the agency notifying them that I will not be moving in.

        I have paid the deposit but not paid any rent as yet and have not been give keys. The only information about non payment in the contract says that if the rent has not been paid for 2 month the landlord can reenter the property.

        Am I actually able to withdraw from the contract now, not move in when the tenancy is due to start in October and not be liable to pay? If that's the case, how do I go about sorting it with the agency?

        Comment


          #5
          mariner,

          It's an assured shorthold tenancy

          Comment


            #6
            As are most TAs, but slightly diff T&Cs could apply to student Lets, so did you sign in anticipation of being a student at a local Collrege or just change your mind? Be honest.

            Let us assume not a studenr, so your deposit was a holding deposit that would be applied to T deposit on commencement of AST ie 1 rent paid, keys received and T
            occupation.
            So AST T&Cs do not apply, but there is clear evidence of a separate, agreed Contract for supply/occupation on an agreed date. It is this 'contract' you Notice has violated. In which case LL is entitled to some compensation eg retention of holding deposit but equally has a duty to mitigate his loss by finding an alternative T, which should be achievable in 2 months, you may be held liable for re-advertising costs

            Comment


              #7
              Originally posted by lucjam View Post
              Thanks - but what does that mean in practice? So if contract has not yet begun to operate, does it mean there basically is no contract? And I can withdraw from taking up the tenancy? The 'notice' was just an email to the agency notifying them that I will not be moving in
              The contract for the tenancy itself has not begun to operate.
              Sorry, stupid typo late at night.

              What contract have you actually signed and what has it committed you to?
              When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
              Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

              Comment


                #8
                It is not a student tenancy. I won't go into why I can't move in, but my situation changed significantly, I haven't just changed my mind.

                Is there a difference between how me giving up the contract would be treated now, before the contract stared and after it commenced?

                Comment


                  #9
                  jpkeates,

                  It's an assured shorthold tenancy for 12 months.

                  Comment


                    #10
                    Yes.

                    Currently (in the absence of any other detail) it sounds like you have a contract to move into a property which will create a tenancy.
                    If they are one and the same agreement that's different to you sending an email saying "yes I'll take that property in October".

                    Ending a tenancy would be more difficult than ending a contract (because there are further conditions to be met).
                    It is likely that the cost to you will be the same.
                    If you never enter the property, you will never create a tenancy, so it will be the same contractual issues before and after it starts.

                    Could you explain what it is that you have signed and what it has committed you to?
                    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                    Comment


                      #11
                      OK Post overlap.
                      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                      Comment


                        #12
                        Was the contract signed as a deed?
                        If so it will be witnessed and say it is a deed.

                        Has the Landlord signed it?

                        Is there any parallel correspondence that could be interpreted as a contract apart from the document itself?
                        How did it end up with you to be signed?

                        When did you pay the deposit?
                        Has the Landlord protected the deposit and given you details of where the deposit is held?
                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                          #13
                          It doesn't say it is a deed. It wasn't witnessed when I signed it. it was sent to me to sign and I signed it and sent it back, no witness on signature - I wasn't asked to do that. I have not received a contract signed by the landlord. There is email exchange but this is only to do with arranging for the contract to be passed on to me. I paid the deposit in June, when I signed the contract. The contract says the deposit will be protected and specifies the protection scheme.

                          Comment


                            #14
                            Hooray.
                            Some chinks of light.

                            The landlord is required to protect the deposit within 30 days of receiving it and give you details of where the deposit is (not will be) and some other information (the Proscribed Information).
                            There are a lot of queries about whether this is valid before the tenancy has actually started, but essentially you have at least one leg to stand on.

                            Did you visit the property or did you do this entirely remotely - you might have some luck with the distance selling regulations.

                            If the contract isn't a deed, it does not become a tenancy until you move in.
                            I don't think this is going to help you much, although a more expert person than I might know differently.
                            It just changes what and how the landlord would sue you for.

                            Assuming that the distance selling route has no joy
                            I think that I would tell the agent/landlord and advise that you have decided to cancel, and are relying on them getting a replacement tenant in the huge amount of time you have given them.

                            Assuming that they won't just roll over, then remind them that they have not protected your deposit and therefore are at risk of your suing them for its return plus a penalty of three times its value.

                            You might want to pay a solicitor a couple of hundred quid to do this, as, essentially, you're arguing from a bit of a back foot.
                            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                            Comment


                              #15
                              Thanks, this is super helpful. I have seen the property, so no, I can't go distant selling route. I live in the area and could have signed the contract directly but agency suggested doing it remotely as it's less fuss.

                              Comment

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