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perfecttenancies
10-03-2009, 04:21 AM
Here's a seemingly absurd situation, but it is genuine.

Start with an AST with several joint tenants, approaching the end of its current term.

Landlord (L) does not wish to increase the rent, therefore does not serve notice and expects tenancy to become periodic.

One set of tenants (T1) wishes to move out on the final date of the current agreement, without serving notice.

This takes everyone by surprise. The other set of tenants, T2, is unable to move so quickly.
(Meanwhile, L does not know what to do at all. Look for new tenants? L is not even sure whether the tenancy has formally come to an end.)

=>
One day after the end of the current agreement, T2 are still living in the property whereas T1 are not.

1.) Are T1 & T2 still jointly and severally liable for the rent, i.e. has the agreement become periodic?

2.) Or are T1 within their rights to move out on the final day of the current agreement without serving notice on anyone?
This would leave T2 and L in a position of uncertainty.
It would deprive T2 of the time required to move or negotiate a new agreement.
It would expose L to financial loss because of the time required to find new tenants, which after all is the purpose of statutory notice. And it would leave L in a position where there are people in the property but no tenancy agreement is in place.

Which is it?

jta
10-03-2009, 06:20 AM
I think that when T1 moved out on the final day of the term, as was his right, he then ended the tenancy for T2 as well. T2 and the LL need to agree a new contract. However, I might be wrong. I often am.

Bel
10-03-2009, 08:05 AM
Painsmith had a document on sharers tenancies (which they no longer publish so accuracy not guaranteed) which stated what JTA has written.

The remaining tenants have a new tenancy with you, so are liable to pay all rent.

Paul Gibbs
10-03-2009, 08:42 AM
note that this means T2 now has a new tenancy - therefore it is in the assured period. T2 are bound for 6 months rent, and L cannot serve a s21 that expires within the fixed term.

L can still serve s 8 notice and/or T2 and L can agree a surrender

Krispy
10-03-2009, 11:53 AM
T2 are bound for 6 months rent.

What binds the tenant to 6 months?

Preston
10-03-2009, 11:57 AM
Painsmith had a document on sharers tenancies (which they no longer publish so accuracy not guaranteed) which stated what JTA has written.

The remaining tenants have a new tenancy with you, so are liable to pay all rent.


note that this means T2 now has a new tenancy - therefore it is in the assured period. T2 are bound for 6 months rent, and L cannot serve a s21 that expires within the fixed term.

L can still serve s 8 notice and/or T2 and L can agree a surrender

Hi

Sorry, I'm afraid I don't understand the legal basis for this argument.

At common law, occupation by one joint tenant counts as occupation by the whole. My understanding is that unless they all move out, the tenancy continues, in this instance as periodic tenancy. Any one of the joint tenants can end the tenancy unilaterally during the continuing periodic tenancy by service of a valid written notice to quit.

I would be interested in the authority for the alternative argument if anyone is able to expand?

Preston

Krispy
10-03-2009, 12:26 PM
Painsmith had a document on sharers tenancies (which they no longer publish so accuracy not guaranteed) which stated what JTA has written.

The remaining tenants have a new tenancy with you, so are liable to pay all rent.

From the Painsmith document

"At the end of a fixed term if one Tenant wishes to stay, but the other Tenant wants to leave, then the Tenant who leaves has no further obligations to the Landlord. *Effectively a new tenancy is created with the remaining Tenant*. A tenant does not have to give notice to leave at the end of the fixed term. If the tenancy agreement tries to enforce such an obligation it is likely to be unfair and therefore void."

* Which answers my previous question

Preston
10-03-2009, 12:38 PM
From the Painsmith document

"At the end of a fixed term if one Tenant wishes to stay, but the other Tenant wants to leave, then the Tenant who leaves has no further obligations to the Landlord. *Effectively a new tenancy is created with the remaining Tenant*. A tenant does not have to give notice to leave at the end of the fixed term. If the tenancy agreement tries to enforce such an obligation it is likely to be unfair and therefore void."

* Which answers my previous question

Hi, do they quote any authority for this view?

If there is "effectively a new tenancy", are they arguing that a new AST is created with all that would entail (6 months security for tenant along with 6 months liability for rent, etc)?

Preston

Bel
10-03-2009, 12:40 PM
Preston: I do not know that what Painsmith said is accurate

See this thread below where Lawcruncher argues that a statuory tenancy has begun where both T1 & T2 are liable. And CAB says T can walk away

http://www.landlordzone.co.uk/forums/showthread.php?t=14028

Paul Gibbs
10-03-2009, 14:44 PM
My understanding was that T1 leaving terminates the tenancy - it cannot just be amended to only be between L and T2.

Therefore by T2 staying on and paying rent and L accepting that rent an new tenancy agreement is created and therefore a new assured period.

Its accepted that during the fixed term one T cannot surrender without the consent of all, but here T is not surrendering, he is simply leaving as required by the contract, therefore no notice is required and T1's liabiltiy would cease.

I am not aware of a specific case dealing with this issue, the closest I have found is the provisions where joint tenants fail to deliver up possession at the end of the term. If 1 of them left at the end of the term then it is only the tenant who remains that is liable to L for damages or mesne profits. (Tancred v Christy) - this is an old case and obviously not regarding AST's, however if the above is still good law then the AST requires T to leave at end of term, if T1 does this but T2 does not then I see it as difficult that T1 remains liable and then logical suggestion is that T2 remaining in occupation creates a new AST.

This is just my view, welcome anyone elses thoughts

perfecttenancies
10-03-2009, 18:25 PM
Thank you very much indeed.

perfecttenancies
10-03-2009, 18:33 PM
My understanding was that T1 leaving terminates the tenancy - it cannot just be amended to only be between L and T2.

Therefore by T2 staying on and paying rent and L accepting that rent an new tenancy agreement is created and therefore a new assured period.

Its accepted that during the fixed term one T cannot surrender without the consent of all, but here T is not surrendering, he is simply leaving as required by the contract, therefore no notice is required and T1's liabiltiy would cease.

I am not aware of a specific case dealing with this issue, the closest I have found is the provisions where joint tenants fail to deliver up possession at the end of the term. If 1 of them left at the end of the term then it is only the tenant who remains that is liable to L for damages or mesne profits. (Tancred v Christy) - this is an old case and obviously not regarding AST's, however if the above is still good law then the AST requires T to leave at end of term, if T1 does this but T2 does not then I see it as difficult that T1 remains liable and then logical suggestion is that T2 remaining in occupation creates a new AST.

This is just my view, welcome anyone elses thoughts

Would I be right in saying that, if T2 stays on (or is forced by circumstances to stay on), T2 would then need to pay the full rent, i.e. the rent for which T1 and T2 were previously jointly and severally liable?

Preston
10-03-2009, 19:05 PM
My understanding was that T1 leaving terminates the tenancy - it cannot just be amended to only be between L and T2.

Therefore by T2 staying on and paying rent and L accepting that rent an new tenancy agreement is created and therefore a new assured period.

Its accepted that during the fixed term one T cannot surrender without the consent of all, but here T is not surrendering, he is simply leaving as required by the contract, therefore no notice is required and T1's liabiltiy would cease.

I am not aware of a specific case dealing with this issue, the closest I have found is the provisions where joint tenants fail to deliver up possession at the end of the term. If 1 of them left at the end of the term then it is only the tenant who remains that is liable to L for damages or mesne profits. (Tancred v Christy) - this is an old case and obviously not regarding AST's, however if the above is still good law then the AST requires T to leave at end of term, if T1 does this but T2 does not then I see it as difficult that T1 remains liable and then logical suggestion is that T2 remaining in occupation creates a new AST.

This is just my view, welcome anyone elses thoughts

Hi

I haven't been able to find the authority you quote (is it the 1840 case?) but from what you have said it seems to concern a situation where a tenancy has ended and one or more of the occupants has remained in possession, with the landlord charging mesne profits until their eviction.

In the situation under discussion, though, the tenancy has not come to an end. Section 5(2) of the Housing Act 1988 reads:

(2) If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of—
(a) an order of the court, or
(b) a surrender or other action on the part of the tenant,
then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section.

It is well established that there can be no surrender without the agreement of all the joint tenants, so in the case in question there has not been a surrender; none of the tenants have served a notice to quit; and there has been no court order.

Section 5(3) reads:

(3) The periodic tenancy referred to in subsection (2) above is one—
(a) taking effect in possession immediately on the coming to an end of the fixed term tenancy;
(b) deemed to have been granted by the person who was the landlord under the fixed term tenancy immediately before it came to an end to the person who was then the tenant under that tenancy;

So, the periodic tenancy which arises will have the same landlord and the same tenant as before - and in this case the tenant is a joint tenant.

Section 5(4)

(4) The periodic tenancy referred to in subsection (2) above shall not arise if, on the coming to an end of the fixed term tenancy, the tenant is entitled, by virtue of the grant of another tenancy, to possession of the same or substantially the same dwelling-house as was let to him under the fixed term tenancy

So, if there is a clear grant and acceptance of a new tenancy then there will be no continuing periodic tenancy, but it would be necessary to show that this was the clear intention of all the parties. The mere departure of one of the joint tenants would not be taken by the courts as evidence of such an intention. Further, if, as the OP suggests, there is lack of clarity over such fundamental terms as the rent, I very much doubt that in this case a new tenancy has been created.

So, in summary, if the joint tenants wish the tenancy to end and to prevent the creation of a statutory periodic tenancy at the end of the fixed term then, in my view, they must all give up possession, or they must subsequently surrender the tenancy or one of their number must serve a valid notice to quit. Failing this, the joint tenancy continues.

Incidentally, the original OP doesn't say how many joint tenants there were originally. It would be worth clarifying this because if the number was greater than 4, this may have a bearing and more details would be required.

Preston

perfecttenancies
10-03-2009, 20:03 PM
Many thanks Preston!

T1 = 2 tenants
T2 = 2 tenants.

jeffrey
11-03-2009, 00:04 AM
I prefer:
a. Preston's analysis/advice in post #13; to
b. the advice supposedly proffered by Pain Smith.

Clearly, T can end a fixed-term tenancy by vacating/surrendering without Notice (at end of fixed term only). Here, only some of those comprised in T vacated; so the tenancy continues.

fthl
14-03-2009, 00:05 AM
Does anyone have the PainSmith article? It has been removed from their site. I'd be interested in their reasoning. Was it based on Hammersmith v Monk?

jeffrey
15-03-2009, 21:41 PM
Does anyone have the PainSmith article? It has been removed from their site.
Wonder why -perhaps because it might not have been not wholly accurate?

Preston
15-03-2009, 21:54 PM
Does anyone have the PainSmith article? It has been removed from their site. I'd be interested in their reasoning. Was it based on Hammersmith v Monk?

Hi,

Monk deals with the issue of notice to quit by one party to a joint tenancy and so will not, I think, be the authority for the argument put forward earlier in the thread.

Preston

Paul Gibbs
26-03-2009, 17:11 PM
sorry reviving an old topic!

Was reading up on a seperate issue and found the follow to show I was wrong!!!

"Where the LL's or T's interest is vested in two or more persons it requires the assent of all persons for the tenancy to continue. If no notice is served to determine the tenancy, the necessary assent is assumed to exist*"

*the footnote states this is summed up in the Scottish phrase 'tacit relocation': see Smith v Grayton Estates Ltd 1960 SC 349, in which the nture of a periodic tenancy was held to be the same in Scotland as in England.

(From Hill & Redman 1 A [8386])

I know it does not specifically cover an AST where T can jsut up and leave but it appears to present a good argument!

jeffrey
26-03-2009, 17:19 PM
Was reading up on a sepArate issue and found the follow to show I was wrong!

"Where the LL's or T's interest is vested in two or more persons it requires the assent of all persons for the tenancy to continue. If no notice is served to determine the tenancy, the necessary assent is assumed to exist*"

*the footnote states this is summed up in the Scottish phrase 'tacit relocation': see Smith v Grayton Estates Ltd 1960 SC 349, in which the nture of a periodic tenancy was held to be the same in Scotland as in England.

(From Hill & Redman 1 A [8386])

I know it does not specifically cover an AST where T can jsut up and leave but it appears to present a good argument!
1. That cited reference is to a Scottish case, of no use in construing the law of E&W.
2. Whether L's interest is sole or joint is irrelevant.
3. Either way, any one [or more] of joint tenants can:
a. continue (as periodic) a fixed-term tenancy held jointly; or
b. unilaterally terminate a statutory continuation tenancy.
4. However, during fixed term, only all joint tenants acting unanimously can deal with the tenancy (e.g. assign, surrender, etc.)

Paul Gibbs
26-03-2009, 17:24 PM
[QUOTE=jeffrey;126955]
3. Either way:
a. only all joint tenants acting unanimously can continue (as periodic) a fixed-term tenancy held jointly [QUOTE]

but that contradicts Prestons post #13 (which you agreed with), and which I am trying to agree with now.

jeffrey
26-03-2009, 17:39 PM
[quote=jeffrey;126955]
3. Either way:
a. only all joint tenants acting unanimously can continue (as periodic) a fixed-term tenancy held jointly [quote]

but that contradicts Prestons post #13 (which you agreed with), and which I am trying to agree with now.
True, but I revised post #20- you must have the original (wrong) version. Sorry for confusion.

Preston
26-03-2009, 19:46 PM
[quote=Paul Gibbs;126958][quote=jeffrey;126955]
3. Either way:
a. only all joint tenants acting unanimously can continue (as periodic) a fixed-term tenancy held jointly
True, but I revised post #20- you must have the original (wrong) version. Sorry for confusion.

Hi

Sorry, I am a bit confused on what you are both arguing now!

If you disagree with post 13, what would be the basis for the argument?

Preston

fthl
26-03-2009, 21:07 PM
don;t know about anyone else, I'm fairly confused now. To be honest I wish someone would sue on this and set a decent precedent.

Someone summarise - what is the answer then? AST with four tenants - at the end of the AST only one tenant stays, the other three leave. Am I right in thinking that the prevailing opinion is that the remaining one tenant can effectively bind the remaining three for a further two months?

I say two months as the tenants that leave might not know that tenant 1 has stayed until a day or so later, by then it will be too late to serve notice to determine the PT at the end of the next period as there is less than one period left... i think...

My query re H v M above was because that case dealt with the creation of a subsequent PT following each other. I wondered if the Painsmith article was suggesting that if you needed unanimous consent to start PT number two then was such required for PT number 1? I think the obiter in the case could be read and extrapolated that way.

Paul Gibbs
27-03-2009, 12:45 PM
[QUOTE=jeffrey;126964][quote=Paul Gibbs;126958]

Hi

Sorry, I am a bit confused on what you are both arguing now!

If you disagree with post 13, what would be the basis for the argument?

Preston


I was agreeing with you, and Hill & Redman gave reference to a Scottish case to assist in confirming the position (there being no direct English case on the point).

As far as I can see post 13 is correct, and I think Jeffrey agrees with that.

lawstudent
04-04-2009, 07:35 AM
Suppose one flat sharer A is in a joint tenancy with B. There is no EPC in force as it is an old tenancy.

A wishes to leave, but B wishes to stay on at the same rent. B finds a new sharer C who is happy to agree to the existing tenancy.

Can the landlord simply issue an agreement which removes A from the tenancy and adds C? If he does so, does the original tenancy agreement continue in force without interruption, thus not requiring an EPC?

jeffrey
05-04-2009, 19:42 PM
Suppose one flat sharer A is in a joint tenancy with B. There is no EPC in force as it is an old tenancy.

A wishes to leave, but B wishes to stay on at the same rent. B finds a new sharer C who is happy to agree to the existing tenancy.

Can the landlord simply issue an agreement which removes A from the tenancy and adds C? If he does so, does the original tenancy agreement continue in force without interruption, thus not requiring an EPC?
If L grants new AST, whether to existing T or not, it's new- so EPC seems necessary.
If L does not grant new AST, no AST is necessary. This includes where:
a. an existing AST continues as statutory periodic; or
b. T1+T2 assign an existing AST (with L's consent) to T2+T3, or T3+T4, or some other assortment of people.

lawstudent
06-04-2009, 06:56 AM
Thanks Jeffrey - that's very helpful.

Presumably the rent and or other terms could also be changed at the time of the assignment, so provided that there is continuity of occupation might there never be a need for a new lease or an EPC?

jeffrey
06-04-2009, 09:35 AM
Presumably the rent and or other terms could also be changed at the time of the assignment, so provided that there is continuity of occupation might there never be a need for a new lease or an EPC?
Rent on an existing tenancy can be changed only by:
a. using its own explicit mechanism (if there is one), during fixed term or thereafter; or
b. using s.13 Notice, but only if it's a statutory periodic continuation (i.e. not during a fixed term).

lawstudent
07-04-2009, 07:04 AM
Thanks jeffrey.

13(5) of HA 1988 says 'Nothing in this section (or in section 14 below) affects the right of the landlord and the tenant under an assured tenancy to vary by agreement any term of the tenancy (including a term relating to rent)'

Has this been subsequently changed?

Mars Mug
07-04-2009, 07:35 AM
Woudn't that be Jeffrey's point a. "using its own explicit mechanism"?

lawstudent
07-04-2009, 09:46 AM
Woudn't that be Jeffrey's point a. "using its own explicit mechanism"?
No - I mean in cases where there may be no explicit mechanism

jeffrey
07-04-2009, 19:53 PM
'Vary by Agreement' must mean 'vary by executing a supplemental Agreement'.
Beware of the contractual consideration problem: such Agreement will be unenforceable unless it is in the form of a Deed.
This problem does not arise when using option a or option b in my post #29.

lawstudent
08-04-2009, 06:42 AM
Thanks jeffrey - so you didn't really mean 'only' in your post 29 ?

jeffrey
12-04-2009, 16:27 PM
Thanks jeffrey - so you didn't really mean 'only' in your post 29 ?
'Only' meant 'formally, only', there. Sorry for any confusion caused.

lawstudent
13-04-2009, 22:31 PM
I'm still confused. What do you mean by 'formally, only'? Sorry if I'm missing something obvious!

jeffrey
17-04-2009, 02:02 AM
I'm still confused. What do you mean by 'formally, only'? Sorry if I'm missing something obvious!
Here's a revised version of post #29; happy now?

Rent on an existing tenancy can be changed formally only
by:
a. using its own explicit mechanism (if there is one), during fixed term or thereafter; or
b. using s.13 Notice, but only if it's a statutory periodic continuation (i.e. not during a fixed term).

Informally changing rent (e.g. by L and T agreeing) runs the risk of being ineffective for lack of contractual consideraation.

lawstudent
17-04-2009, 08:44 AM
Thanks Jeffrey. Happy? Delirious :D

Lawcruncher
17-04-2009, 09:45 AM
'Vary by Agreement' must mean 'vary by executing a supplemental Agreement'.

As the old managing clerk I trained under would have said: "What is your authority for that proposition?" Is it not always the case that if a statute does not specify that something needs to be in writing that it does not need to be in writing?


Beware of the contractual consideration problem: such Agreement will be unenforceable unless it is in the form of a Deed.

I think I am going to take some convincing that that is the case. I think there are many who would be surprised to learn that a deed is required to agree an increase in rent under a periodic tenancy. I have to doubt it often happens in practice, though that is not of course conclusive that a deed is not required.

You also seem to be suggesting that, in the absence of some fresh consideration, any variation to any agreement needs to be made by deed, which I do not think can be the case.

If the original agreement is by deed, then the principle "a deed can only be varied by another deed" applies. Further, where the parties have entered into a complex deal and decide to change some of the terms, recording the changes in a deed is a wise precaution. It is a long time since I studied the law of contract, but I cannot remember any requirement that contracts not made by deed can only be varied by deed.

jeffrey
17-04-2009, 09:57 AM
No, the point is that L wants T to pay the increased rent BUT how does T become bound to do so if:
a. there's no [extra element of] contractual consideration; or
b. the variation is not by Deed?

lawstudent
17-04-2009, 11:56 AM
No, the point is that L wants T to pay the increased rent BUT how does T become bound to do so if:
a. there's no [extra element of] contractual consideration; or
b. the variation is not by Deed?
Presumably it's not just the L that wants the T to pay the increased rent but the T wants to pay it too (otherwise he wouldn't agree to it) and why does there need to be an extra element of consideration?

jeffrey
17-04-2009, 12:14 PM
Presumably it's not just the L that wants the T to pay the increased rent but the T wants to pay it too (otherwise he wouldn't agree to it) and why does there need to be an extra element of consideration?
Because, as I thought you knew, a contract unsupported by consideration (and not in Deed format) is not binding.

Lawcruncher
17-04-2009, 14:15 PM
...and why does there need to be an extra element of consideration?

The point I was going to make.

jeffrey
17-04-2009, 14:57 PM
The point I was going to make.
But which you did not need to make, in the light of post #42.

Lawcruncher
17-04-2009, 15:21 PM
But which you did not need to make, in the light of post #42.

But a change is not a new contract. If it were, the consideration would be the same as for the old contract.

jeffrey
19-04-2009, 13:26 PM
But a change is not a new contract. If it were, the consideration would be the same as for the old contract.
The change in rent is a tenancy variation. This is not binding on T unless by s.13 or in a Deed; past consideration is no consideration.

fthl
19-04-2009, 19:58 PM
what about if the rent is put up?

jeffrey
20-04-2009, 09:18 AM
what about if the rent is put up?
That is exactly what we're discussing! Re-read post #46, please.

Lawcruncher
20-04-2009, 09:53 AM
I am perfectly happy to accept the principle that where a lease is made by deed:

(a) the rent can only be varied by deed; but that

(b) equity will allow a variation where the variation is supported by fresh consideration; and that

(c) equity will further intervene in the absence of fresh consideration if an estoppel arises.

(See Central London Property Trust Ltd. v. High Trees House Ltd)

I remain to be convinced that the above principle applies where the lease was not created by deed.

jeffrey
20-04-2009, 10:00 AM
I remain to be convinced that the above principle applies where the lease was not created by deed.
See your previous comment: As the old managing clerk I trained under would have said: "What is your authority for that proposition?"!

Lawcruncher
20-04-2009, 12:08 PM
See your previous comment: As the old managing clerk I trained under would have said: "What is your authority for that proposition?"!

Definitions:

"Proposition 1": Absent fresh consideration or estoppel, a variation of the rent under a lease not created by deed can only be agreed by deed.

"Proposition 2": Absent fresh consideration or estoppel, a variation of any term under a contract not created by deed can only be agreed by deed.

"Proposition 3": A variation of the rent under a lease not created by deed can be agreed without a deed.

"the Established Principle": Absent fresh consideration or estoppel, a variation of the rent under a lease created by deed can only be agreed by deed.

I was not offering Proposition 3. I said I remain to be convinced that Proposition 1 is true.

What is your authority for the proposition that the Established Principle can be extended to include Proposition 1?

If Proposition 1 is true, it would seem to imply that Proposition 2 is also true.

If Proposition 2 is true, Proposition 1 must also be true and Proposition 3 cannot be true.

If Proposition 2 is not true, Proposition 1 (a particular instance of Proposition 2) cannot be true either and Proposition 3 must be true.

I confess I can quote no authority for Proposition 3. Can you quote any authority for Proposition 1 or Proposition 2?

jeffrey
20-04-2009, 12:17 PM
Keeping it simple, the propositions are that rent can be increased by:
a. a Deed between L and T [binding both];
b. a s.13 Notice [served by L and binding T because the 1988 Act says so]; or
c. an informal method [not binding T because there is no consideration from L to T in exchange for T's obligation to pay the increase].

Lawcruncher
20-04-2009, 12:49 PM
Keeping it simple, the propositions are that rent can be increased by:
a. a Deed between L and T [binding both];
b. a s.13 Notice [served by L and binding T because the 1988 Act says so]; or
c. an informal method [not binding T because there is no consideration from L to T in exchange for T's obligation to pay the increase].

I agree a and b, but not that c does not bind tenant.

fthl
20-04-2009, 21:53 PM
Quote:
Originally Posted by fthl
what about if the rent is put up?
That is exactly what we're discussing! Re-read post #46, please.

Sorry, I wasn't being clear. Could the extra rent not be the required consideration?

jeffrey
21-04-2009, 09:54 AM
Sorry, I wasn't being clear. Could the extra rent not be the required consideration?
No. If T agrees to pay it, what does L agree in exchange? That's the missing consideration!

fthl
21-04-2009, 22:19 PM
Ok, With you. so if they agree anything else (eg replacement fridge) then this could stand as the missing consideration?

jeffrey
22-04-2009, 10:41 AM
Ok, With you. so if they agree anything else (eg replacement fridge) then this could stand as the missing consideration?
Yes- you've got it! (Please try to explain it to Lawcruncher)

Lawcruncher
22-04-2009, 11:53 AM
Remember though that a variation in rent following fresh consideration is binding in equity only.

Let me start again. The problem I have is this: it is possible to create certain types of tenancy without a deed, or indeed without writing. I am having difficulty believing that the terms of such a tenancy can only be varied by deed when a deed was not needed to create them. It is quite possible that there is a rule that says:

Except where and to the extent that equity intervenes or statute allows, the terms of a tenancy, whether created by deed or not, may only be varied by deed.

I do not believe this to be a rule, but I am open to persuasion it is a rule if some authority is quoted to support it.

For the record I believe the following rule can be stated, since it is supported by the authority of Central London Property Trust Ltd. v. High Trees House Ltd:

Except where and to the extent that equity intervenes or statute allows, the terms of a tenancy, when created by deed, may only be varied by deed.

I feel I must also ask whether it is being suggested that any contract not made by deed can only be varied by deed if no fresh consideration is available to support the variation?

jeffrey
22-04-2009, 12:19 PM
Why the obsession with whether variation must be by Deed?
Yes, a Deed cures the 'lack of consideration' problem. If a letting not by Deed is to be varied other than by Deed, the variation is binding only if:
a. supported by contractual consideration; or
b. effective under s.13.