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yursaduian
07-04-2008, 10:36 AM
Here is an example of the classic error from page 1, paragraph 1 of the Letting Landlord's "What not to do" book;

I let a property to my son's "friend" 3 months ago. I have had to chase the rent each month and have been inundated with complaints from the neighbours about noise and nuisance. I have decided to ask him to leave. I fully expect him to object and I really do foresee problems getting him out.

I took a deposit of 1 1/2 months rent so not too worried just yet about the money but what happens when he says he has nowhere else to go because - and here's the good bit - as he was a "friend", I never got round to a formal AST.

I know, I know, I know - I never thought I would be such an idiot but we live and learn and if nothing else, this might serve as an example to others.

I am now wondering if it would be better to raise the AST -backdated to when he moved in - and just sit tight till the 4 months are up then give him the standard 2 months notice

Can anyone else offer any advice please?

jeffrey
07-04-2008, 10:42 AM
There is an oral AST, I think- just nothing in writing. You cannt impose restrictions retroactively but, subject to that, a written AST could show a past commencement date. Has T demanded a Statement of Terms under s.20A of Housing Act 1988?

yursaduian
07-04-2008, 10:46 AM
Thanks Jeffrey

No, I haven't actually told him to leave yet. I just want to be aware of my legal position before the problems start!

P.Pilcher
07-04-2008, 11:13 AM
I think that because he has offered and you have accepted rent that an AST agreement exists with a fixed term of six months from the date he moved in. You will be able to evict him under section 21 for which a minimum of two months notice is necessary and this cannot end until the said six months has elapsed. Unfortunately for you the "accelerated" procedure cannot be used where a judge considers the paperwork and if correct isues the possession order. In this case a court hearing is necessary to give the tenant the opportunity of appearing thus the terms of the tenancy and, importantly, its commencement date can be established. However there is another possible problem: Page one of the landlord's handbook states that written AST's should be issued, signed sealed and filed before a tenant takes up residence. Page 1a will advise you that any deposit taken (which you have) must be immediately secured in a protection scheme. This is a legal requirement, and as you haven't done so you are liable to a fine and a payment to your tenant of three times the deposit. Furthermore you cannot use the section 21 method of regaining possession of your property unless this deposit protection is in place.

Sorry to be the bearer of bad news, but I should get that deposit protected pdq!

P.P.

yursaduian
07-04-2008, 12:52 PM
P Pilcher

Thanks for the response and I understand everything you are saying.

It's like I said originally, having thought long and hard, I feel the only way forward would be to issue the AST with the actual start date, issue the notice to vacate to correspond with the AST, protect the deposit and then batten down the hatches until I can proceed legally.

My only concern now is will the lateness (is that a real word?) of the documents have a detrimental effect further down the line if I am forced to take legal steps when the 6 months are up?

Do you see any problems at the end of the AST if I get the paperwork in place now?

Cheers

jeffrey
07-04-2008, 12:59 PM
I think that because he has offered and you have accepted rent that an AST agreement exists with a fixed term of six months from the date he moved in.
No. At most, the AST is monthly periodic from day 1. As there is nothing in writing, there is no fixed term.

yursaduian
07-04-2008, 16:39 PM
Jeffrey

So if it is now, by deafult, a monthly periodic tenancy, what notice would I have to give and would it have to end on a rent cycle ie end of the month?

Thanks

jeffrey
07-04-2008, 16:44 PM
Jeffrey

So if it is now, by deafult, a monthly periodic tenancy, what notice would I have to give and would it have to end on a rent cycle ie end of the month?

Thanks

You can serve a s.21(1)(b) Notice now. As long as it's served on T at least two months before the first six months of tenancy end, whether or not it's a fixed term, you can claim possession at the end of (or, better, immediately after the end of) the six months.

yursaduian
07-04-2008, 17:31 PM
Thanks for the input Jeffrey

Does this mean then that regardless of the AST being written or infered, I cannot apply for possession until six months has elapsed? (and then of course only after 2 months written notice)

jeffrey
08-04-2008, 08:53 AM
Not quite. You can serve [s.21] during the first six months; but Possession Order cannot operate until (at the earliest) end of six months.

yursaduian
08-04-2008, 08:57 AM
thanks again Jeffrey

This has been a big help

Cheers