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View Full Version : AST format used but rent > £25 000; what is its effect?



ajaytheragun
20-01-2009, 18:49 PM
Hello All,
An interesting dilemna:

The agents issued me a 12 month AST, with 6 month break clause for tenant, and 10 month break clause for landlord.

Here is the thing, the rent is 25K pa+.

So the AST is not valid. instead it should be a common law tenancy or bare contractual agreement.

So now I want the tenants to leave, as I am considering selling the property. They are in say month 4 now.

Apart from trying to offer them an incentive to break the agreement, can I serve them a notice to quit with 30 days to leave?

Or am I bound by the AST.

It says on the AST , that if any parts of this agreement should be found to be not legally enforceable then it will not invalidate the T/a and all the other enforcable parts will be valid.

Any help would be appreciated.

jeffrey
20-01-2009, 19:21 PM
The Tenancy Agreement can still be valid, albeit not as an AST.

ajaytheragun
02-02-2009, 17:03 PM
So I cant give them a notice to quit with 30 days notice even though it is not an AST. I have to follow what is in the T/A. Lets say if they are in breach of the tenancy? like they dont pay their rent or not all of it. Then can I issue them a notice to quit?

jeffrey
02-02-2009, 17:08 PM
You CAN serve a Notice to Quit. The point is merely that the Act's protections for AST/SAT tenants do not apply.

ajaytheragun
02-02-2009, 17:16 PM
I have got that, thank you. Ast/sat protections dont apply on this tenancy.

But what about if the Agreement actually states that the landlord can only give written notice for the tenants to leave after and not less then 8 months and that with a two month written period on top of that.

So yes that AST/SAT regulations dont apply on this agreement, but will that clause in my agreement be vaild?

And if it is valid, could i argue that the tenant is in breach of his terms if she has not paid her rent/or not paid all of her rent? Would I then be able to serve the notice to quit regardless of me not completing the 8months minimum add two months notice period.



It says on this site:

Notice by Landlord

To end a shorthold tenancy the landlord must give at least two months' notice under Section 21 of the 1988 Housing Act. For notices - see Agreements & Forms

The notice cannot take effect for at least six months or until the original agreed term has expired.

Where the tenancy has become a periodic one the notice given must expire on the last day of a rent period. For example, if a monthly periodic tenancy rent day is the 20th of the month, the two month notice period must end on the 19th of the month in question.

There is nothing to say you cannot give more than two months' notice. Therefore a landlord could service a two month Section 21 notice soon after the granting of a six month term to take effect at the end of that term.

jeffrey
02-02-2009, 17:29 PM
But what about if the Agreement actually states that the landlord can only give written notice for the tenants to leave after and not less then 8 months and that with a two month written period on top of that.

So yes that AST/SAT regulations dont apply on this agreement, but will that clause in my agreement be vaild?
Yes. The Agreement operates more or less literally.


And if it is valid, could i argue that the tenant is in breach of his terms if she has not paid her rent/or not paid all of her rent? Would I then be able to serve the notice to quit regardless of me not completing the 8months minimum add two months notice period.
Yes. Find the Proviso for Re-entry (reading something like, "Provided that if T does not pay rent within 14 days of due date, L can re-enter..")


It says on this site:

Notice by Landlord

To end a shorthold tenancy the landlord must give at least two months' notice under Section 21 of the 1988 Housing Act. For notices - see Agreements & Forms

The notice cannot take effect for at least six months or until the original agreed term has expired.

Where the tenancy has become a periodic one the notice given must expire on the last day of a rent period. For example, if a monthly periodic tenancy rent day is the 20th of the month, the two month notice period must end on the 19th of the month in question.

There is nothing to say you cannot give more than two months' notice. Therefore a landlord could service a two month Section 21 notice soon after the granting of a six month term to take effect at the end of that term.
All true- but it's applicable only to an AST, which yours isn't.

Paul Gibbs
02-02-2009, 18:04 PM
but a right of re-entry for failure to pay rent within 14 days cannot be exercised without consent of the court

Lawcruncher
02-02-2009, 18:14 PM
There are certain conditions that apply to assured tenancies.

If those conditions are met, the tenancy is an assured tenancy.

If those conditions are not met, the tenancy cannot be an assured tenancy.

In either case this is irrespective of what the parties agree - statute prevails.

If certain further conditions are met, an assured tenancy is an assured shorthold tenancy.

Whilst it is possible for the parties to agree that a tenancy that would otherwise be an assured tenancy is not an assured shorthold tenancy, it is not possible to agree that a tenancy that is not an assured tenancy is an assured shorthold tenancy. This is because for a tenancy to be an assured shorthold tenancy it must meet the conditions for it be an assured tenancy.

So, any tenancy which is not an assured tenancy cannot be an assured shorthold tenancy even if the parties agree that it is an assured shorthold tenancy.

Chapters 1 and 2 of Part 1 of the Housing Act 1988 (which deal with assured tenancies and assured shorthold tenancies) have no application at all to tenancies which are not assured tenancies.

Short term residential tenancies which are not assured tenancies (or of course Rent Act tenancies) are a matter of contract with the common law and statute stepping in as appropriate. If you agree a fixed term, the tenant is entitled to the fixed term. In the absence of a landlord's right to break the landlord cannot give notice terminating the tenancy. It runs to the last day of the fixed term. There is no need to give notice bringing the fixed term to an end because it ends automatically.

If once the fixed term has expired, no agreement having been reached for a continuation or renewal, the tenant remains in occupation, there is a tenancy at suffrance. This is really no more than saying that the tenant is not a trespasser since his presence in the property can be explained by the previous tenancy. However, once the landlord accepts or demands rent a peridodic tenancy will arise which can only be ended by a notice to quit. On the other hand if the landlord objects to the continuing occupation the tenant technically becomes a trespasser, but it still needs a court order to get possession.

Preston
02-02-2009, 23:52 PM
Yes. Find the Proviso for Re-entry (reading something like, "Provided that if T does not pay rent within 14 days of due date, L can re-enter..")


Hi

A re-entry (or forfeiture) clause may also be implied if any requirements in the agreement are clearly identified as conditions, namely, that the landlord will seek possession if they are breached.

Preston