When are the landlord and tenant bound by this AST?

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    When are the landlord and tenant bound by this AST?

    Hi,
    My husband and I are hoping to rent a house, but the process is different to what we have previously been used to. He will be the tenant and I will only be a permitted occupier.

    Also, my husband has been told that he is only going to sign the AST on the day that we move in, but we will have to pay the DPS deposit and first month's rent several days before we sign and move in. I think that the landlord is trying to be cautious by not entering into an agreement until right at the last moment, and also making sure that we have paid before he enters into the agreement.

    The AST is dated 12th August and the term is stated as "12 months commencing on 29th August 2016" and also says "once signed and dated this agreement will be legally binding".

    We are fully committed to taking the house, but I would like to know where both us and the landlord stand in terms of enforcing the contract. I know that the landlord really wants to sell the house rather than rent it, and I wonder if he wants a situation where (if he wants it to go ahead with the AST) he can claim that the tenancy is agreed once we pay the first month's rent, or (if he wanted to pull out) claim that the tenancy isn't agreed until we sign and move in on the day.

    I have read other threads, and it seems that there are no absolute guarantees as to when a court might decide that the agreement is enforceable (signing, payment or taking possession).

    Would it be wise to put in writing, something to the effect of "we will pay the deposit and rent before signing the AST, but want to make clear that we only intend to enter into the tenancy agreement, once the AST is signed and we take possession of the property"?

    Would that clear statement of intention make a difference?

    #2
    *Alarm bells*

    Let's be clear what's happening. They want your money and hence effectively your commitment to rent since people are unlikely to give over a deposit plus one month rent and then walk away, but they don't want to have a signed contract in place for over 2 weeks afterwards detailing what obligations they may have in exchange for receiving that money?

    *Alarm bells*
    I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

    I do not answer questions through private messages which should be posted publicly on the forum.

    Comment


      #3
      Originally posted by JoanneH View Post
      Also, my husband has been told that he is only going to sign the AST on the day that we move in, but we will have to pay the DPS deposit and first month's rent several days before we sign and move in. I think that the landlord is trying to be cautious by not entering into an agreement until right at the last moment
      Is there an estate agent facilitating this AST?

      I would say this is normal, No LL in their right mind would hand over the property unless cleared funds were with them or at least with the agent. The AST may have been drafted on the 12th but it clearly takes effect on the 29th which would be the move in day and rent pay day. Paying the deposit and first months rent a few days in advance would be prudent to ensure a smooth handover on the day of move in. You may wish to offer the agent a holding deposit to take the property off the market and then offer to have cleared funds to them on or before move in date.
      Any advice I give is my opinion and experience, I am as you also learning.

      Comment


        #4
        Domestic online bank transfer take seconds nowadays, even cheque only take a week. Demanding payment two weeks in advanced with nothing signed? No thanks. Not saying one hand over the key in advance of cleared payment, but you can still have a signed contract for a tenancy in the future pending payment. The tenancy isn't in effect until the payment clears and the LL hand over the keys and the T moves in, so security of tenancy and time & cost of eviction isn't an issue.
        I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

        I do not answer questions through private messages which should be posted publicly on the forum.

        Comment


          #5
          Originally posted by KTC View Post
          Demanding payment two weeks in advanced with nothing signed? No thanks..
          I think OP mentioned a several days? The AST may have been prepared two weeks in advance.

          You don't have to pay it at all if you don't want to and pay it on the day you move in, having said that nothing stopping the landlord keeping the property on the market to take on a better prospect unless of course you show a monetary commitment such as a 'holding' deposit to the agent which will be credited in full towards the entire payment on day of move in.
          Any advice I give is my opinion and experience, I am as you also learning.

          Comment


            #6
            sunnyp,

            Hi. Yes there is an agent involved.

            I agree with you that it is entirely normal for the LL to want the money before handing over the property, but we have never been asked to pay the DPS deposit and rent before signing the AST before, or been refused the ability to sign the AST until the point we move in. Both of these things are not even standard for the agent (who usually have the AST signed before payment), and have been specifically requested by the LL.

            I don't mind too much if the LL wants to wait until the last moment before agreeing to the AST, but I don't want a situation where we are technically tied in (because he has the money - 2,500 in total - and the ability to at least argue that the AST started when it was paid) but he can change his mind right up to the last moment.

            I either want both us and the LL tied to the AST and then the money paid, or the money paid with a clear agreement that it is retured immediately if the AST does not go ahead on the 29th. I don't think that is unreasonable, but I'd like to know if it is practical.

            Comment


              #7
              I think the AST only becomes effective once you take possession of the property irrespective of payment. If a T asks me to hold a property for them for a few weeks and at that stage I have accepted the start date and them as prospects then I would expect some sort of commitment from the tenant.
              Any advice I give is my opinion and experience, I am as you also learning.

              Comment


                #8
                Originally posted by sunnyp View Post
                I think the AST only becomes effective once you take possession of the property irrespective of payment.
                I think that is often considered to be the situation, and all I am really suggesting is that we and the LL agree on that, and agree that the DPS deposit and the rent are returned if it doesn't go ahead.

                Originally posted by sunnyp View Post
                If a T asks me to hold a property for them for a few weeks and at that stage I have accepted the start date and them as prospects then I would expect some sort of commitment from the tenant.
                I wouldn't disagree with a holding deposit, and have certainly paid one before, but that is not what the LL has asked for, he wants 2,500 up front but has refused to sign the AST. The only explanation I can find for this, is that he wants to keep his options open until the last moment (again, he has specifically asked for this, it is not was the agent normally does).

                We are not asking for the property to be held, we are already referenced and ready to go. We have no problem signing the AST and paying the 2,500 - but he doesn't want to sign, he just wants the money for now.

                Comment


                  #9
                  In that case simple say to the LL via the agent that all monies will be cleared by the time you take possession. Ensure that you are in a position to do this and all is ok.
                  There is not much the LL can do, apart from decide that he/she no longer wants to rent to you and find someone else. Neither of you have an obligation to each other until the day you take possession.
                  Any advice I give is my opinion and experience, I am as you also learning.

                  Comment


                    #10
                    Signing the contract simply commits you both contractually, you to pay and move in, the landlord to rent you the property and move in.

                    It's quite normal to sign a forward dated contract and pay on that basis.

                    The tenancy doesn't start until you move in, and if you don't pay, they won't give you the keys.

                    On the other hand, if you pay the estate agent money and the contract doesn't go ahead, the agent/ landlord would have to return your money.
                    The risk is that they're not the actual property owner/agent and it's a scam, but that doesn't seem to be the case (assuming the agent has a shopfront you can visit etc.
                    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
                      Originally posted by KTC View Post
                      The tenancy isn't in effect until the payment clears and the LL hand over the keys and the T moves in, so security of tenancy and time & cost of eviction isn't an issue.
                      You seem to suggest that if a tenant paid prior, and the cheque subsequently bounced, that there would be no tenancy.
                      Allow tenants to protect their own deposits. I want free money when they do it wrong

                      Comment


                        #12
                        Originally posted by thesaint View Post
                        You seem to suggest that if a tenant paid prior, and the cheque subsequently bounced,
                        Hence cleared funds.
                        Any advice I give is my opinion and experience, I am as you also learning.

                        Comment


                          #13
                          If the tenant has moved in, there's a tenancy, even if the payment isn't made.

                          Bounced cheques are a special case, as a cheque is, in itself, a stable promise to pay.
                          If someone writes a cheque it's as good as handing over cash, from a legal point of view (rather than the less perfect real world we actually live in).
                          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


                            #14
                            In my view the LL has a lot more to lose if a T gains possession without the full dues paid. LL still has to go through the process to evict and cannot even begin to do that until at least past the second rent day.

                            On the other hand the T has a clear case for a refund and a route to claim if dues are paid and the tenancy does not happen.
                            Any advice I give is my opinion and experience, I am as you also learning.

                            Comment


                              #15
                              Sunny:. He can serve s8g8 on 2nd day of tenancy & apply to court on 16th.

                              But I agree. Landlord more to lose which is why I take rent & deposit, sign everything, then hand over copies of paperwork & keys, all in less than an hour (save deposit protection...)
                              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

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