When does a tenancy become legally binding?

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  • theartfullodger
    replied
    Suggest you 'phone the experts, Shelter, the housing charity, on 0808 800 4444 and see what they say..

    Life ain't fair: Sorry. Do not in future sign contracts you do not understand the consequences of. Shelter or CaB are both admirable charities who can advise on housing matters.

    SUMO.

    Cheers!

    Leave a comment:


  • lucjam
    replied
    theartfullodger,

    There is a big difference between feeling inconvenienced and upset and making someone pay rent for a property they do not live in. I recognize that this is not an ideal situation, but to cause as little inconvenience to the landlord as possible I have notified the agency over 2 months before the move in date, and I am happy to pay fees, give up the deposit, etc. But from what you are saying, it seems like I might still be liable to pay the rent if the landlord does not agree to cancel the contract?

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  • theartfullodger
    replied
    There is no tenancy until you move in line with your contract. But there is a contract.

    Re. that contract: Both you & landlord are tied by it **. Unless it says you have a right to give it up then I fear you must negotiate with landlord to be allowed to break it at whatever terms you & LL agree..

    ** Think of it the other way round: If you wanted to move in in October but landlord said "Nah, changed my mind..." you would likely feel more than upset & inconvenienced...

    Cheers!

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  • lucjam
    replied
    Originally posted by mattl View Post
    I believe this is pretty wrong. A lease gives a right to exclusive possession for a fixed period of time. Whether the tenant actually enters the property or not (i.e. uses his right) is pretty irrelevant; as long as he has the right to exclusive possession from the tenancy start date, a tenancy will have been created that day.
    In my situation, I have not entered the property and the tenancy start date is only in October. So from everything that has been said so far, I gather that until October there is no tenancy and I have the right to give up the contract? And covering admin costs/referencing/etc. Am I right in thinking that?

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  • jpkeates
    replied
    I see where you're coming from;
    However if the prospective tenant forgoes that right of exclusive possession - tells the landlord that they have no intention of creating a tenancy / exercising that right, and them makes that manifest by their behaviour (not entering the premises and living somewhere else)
    the tenancy doesn't arise.

    In this case the tenancy has not begun (we agree on that I think), the person who would be the tenant has no wish to create a tenancy (or pay rent etc).
    There is a contract that is binding, but the tenancy doesn't start.

    If the tenancy does begin automatically as you suggest, and the tenant then declines to cooperate or simply vanishes, the Landlord would have to evict the absent tenant to regain possession in order to allow any new tenant to exercise their own exclusive right to the property, which makes no sense.

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  • mattl
    replied
    Originally posted by jpkeates View Post
    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.
    I believe this is pretty wrong. A lease gives a right to exclusive possession for a fixed period of time. Whether the tenant actually enters the property or not (i.e. uses his right) is pretty irrelevant; as long as he has the right to exclusive possession from the tenancy start date, a tenancy will have been created that day.

    Originally posted by jpkeates
    If the contract isn't a deed, it does not become a tenancy until you move in.
    I believe this is even more wrong. You probably refer to s.54(1) LPA 1925. However again there only needs to be a right to exclusive possession, so whether the tenant actually enters the property or not is not relevant, as long as he has such a right to exclusive possession.

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  • mariner
    replied
    Legal clarity and common sense from Darth.

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  • Darth Wookie
    replied
    IMHO, the tenancy hasn't started as the start date hasn't come round yet and no-one has moved into the property. If there is no tenancy, no rent is due. If it doesn't start, no rent is due.
    However you also have a contract (verbal, email, chalked on pavement, whatever) with the agent who may have taken holding deposit (different to tenancy deposit), reference fees, etc. This still stands and you should pay that without unreasonable dispute. After all, the agent has carried out some work to make the appropriate arrangements for you (and the Landlord).
    If you have paid any tenancy deposit and rent up front, this should be returned immediately as it is unrelated to the current situation and isn't required for a tenancy that will never begin.
    p.s. don't expect to win any friends with this one. The LL and agent have a right to be miffed, but you also have a right to deal with your personal life as long as it's not to the demonstrable detriment to others.

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  • theartfullodger
    replied
    If you hit problems you can 'phone Shelter, the housing charity, on their **free** helpline 0808 800 4444

    Leave a comment:


  • lucjam
    replied
    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.

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  • jpkeates
    replied
    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.

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  • lucjam
    replied
    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.

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  • jpkeates
    replied
    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?

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  • jpkeates
    replied
    OK Post overlap.

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  • jpkeates
    replied
    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?

    Leave a comment:

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