PDA

View Full Version : 'Contractual'/common-law tenancy outside 1988 Act



fletchj
12-02-2009, 10:07 AM
Hi

I am just going over the rental agreement for my stepson (1 of 4 tenants) and am not quite clear on the implications of a clause.

The agreement started August 08 and is for a fixed period of 12 months with no break clause.

The agreement is headed 'Tenancy Agreement - For letting a furnished dwelling house on a Contractural Tenancy'

and a clause says 'This Agreement is intended to create a Contractual Tenancy outside the Housing Act 1988.'

My question is: Is this an AST or not and if the answer is not what difference does it make?

MrJohnnyB
12-02-2009, 10:27 AM
is your stepson occupying a room where the landlord is in fact a living? The 1988 act exclusions only really apply on very few instances such as lodger agreements, holiday lets or the tenant does not intend to occupy this home as his principal occupance... Oh and if the rent is over 25k...

jeffrey
12-02-2009, 11:01 AM
There are three possibilities.
1. 1988 Act applies, because letting meets requirements in s.1. AST, because no exclusions in Schedule 2A.
2. 1988 Act applies, because letting meets requirements in s.1. Not AST (so SAT), because of exclusions in Schedule 2A.
3. 1988 Act does not apply, because:
a. letting does not meet requirements in s.1; or
b. exclusions in Schedule 1.

fletchj
12-02-2009, 12:46 PM
The letting is a ordinary house where the entirety of the house is let out to 4 named tenants, under a single tenancy agreement i.e. not room by room. The landlord does not reside in the house and as far as I am aware never has.

I have just checked and the yearly rent is just over 25K so i assume that is the reason that it is phrased this way.

I think the practical difference is that in this case there is no requirement to protect the deposit, are there any other major ones?

Q: The agreement says both tenent and landlord have to give 1 months notice - either a month before the end of the term or later. Is this enforcable in this case?

Q: The reason that this all arose is that stepson would like to move out. My initial position is that he is basically locked in for the 12 months, is this correct? The only way to end the tenancy would be to persuade the landlord to release all the tenants early and they move out - the problem being that I cannot imagine why he would do that.

jeffrey
12-02-2009, 13:00 PM
The letting is a ordinary house where the entirety of the house is let out to 4 named tenants, under a single tenancy agreement i.e. not room by room. The landlord does not reside in the house and as far as I am aware never has.
So it sounds like the Act will apply- despite the Agreement saying otherwise- unless Schedule 1 disapplies it.
An example under Schedule 1 is if the rent is at a rate exceeding £25 000 per year.

fletchj
12-02-2009, 14:42 PM
So it sounds like the Act will apply- despite the Agreement saying otherwise- unless Schedule 1 disapplies it.
An example under Schedule 1 is if the rent is at a rate exceeding £25 000 per year.

which it does as the total yearly rent is over 25K

jeffrey
12-02-2009, 14:49 PM
which it does as the total yearly rent is over 25K
OK! So the Agreement is correct. Neither the 1988 Act- not even s.8/s.21 Notice procedures- nor Deposit Protection rules will apply.
The Agreement operates more or less literally except for the impact of:
a. the Protection from Eviction Act 1977; and
b. s.11 of the Landlord and Tenant Act 1985.

Preston
12-02-2009, 21:03 PM
Q: The agreement says both tenent and landlord have to give 1 months notice - either a month before the end of the term or later. Is this enforcable in this case?

Assuming the agreement is drafted properly, then yes.



Q: The reason that this all arose is that stepson would like to move out. My initial position is that he is basically locked in for the 12 months, is this correct? The only way to end the tenancy would be to persuade the landlord to release all the tenants early and they move out - the problem being that I cannot imagine why he would do that.

Yes, as a joint tenant he is jointly and severally liable. At the end of the fixed period, he can give notice to quit and this notice (provided it is properly drafted) will have the effect of ending the tenancy whether or not the other tenants agree. During the fixed period he needs the landlord and the other tenants to agree to end the tenancy early, or all the tenants to agree to an assignment of the tenancy into the names of the remaining three. And the latter option must be permissible under the agreement or the landlord must give consent.

Preston