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View Full Version : Is tenancy agreement invalid under s.48 of LTA 1987?



moonshine
20-10-2009, 13:39 PM
I have just seen my sollicitor. I am trying to evict my tenant for not paying the rent. However, the sollicitor told me that my assured shorthold tenancy agreement will not be recognised in court because my address as a landlord is not in England and Wales and in the agreement it says that this is the address where under section 48 the tenant can serve notices to me.

I asked my sollicitor if I can notify the tenant of a new address to serve notices (for example the address of my sollicitor) but he said that I would need to change the tenancy agreement and include it in there. Clearly, the tenant will not agree to this if he is aware that I will not be able to evict him under the current contract.

HELP HELP HELP!!!

jta
20-10-2009, 13:49 PM
Do you have anyone in E&W who acts as your agent? Even if it's only organising repairs when needed.

Krispy
20-10-2009, 13:52 PM
Your solicitor is wrong, grab a form here (http://www.landlordnetwork.co.uk/documentstore.htm) (under tenancy agreements).

moonshine
20-10-2009, 13:54 PM
My sollicitor said that I can use his address. However, he said that it will only be valid if I get the tenancy agreement changed - I don't think I have any hope in getting a signature from the tenant on a new agreement. Please help, does it really mean that because of this error the tenant can live indefinitely rent free?

dominic
20-10-2009, 14:01 PM
I agree with Krispy. I think your solicitor is incorrect. s.48 of the LTA 1987 states that the LL must provide T with an address for service within E&W. There is no requirement that this forms part of the AST, it is only convenient that it is included there.

Therefore, you need to serve on you T a formal notice as advised by Krispy informing him your E&W address. At that point T will be entitled to use that address for all correspondence in any eviction proceedings.

westminster
20-10-2009, 14:23 PM
I also think the solicitor is wrong. The address for notices does not have to be included in the tenancy agreement, it can be given to the tenant separately.

See
http://www.landlordzone.co.uk/landlord's_address.htm

Get a new solicitor. This one sounds hopeless.

theartfullodger
20-10-2009, 14:35 PM
I agree with Westminster, and I am a "foreign" Landlord (for England & Wales) being domiciled in bonnie Scotland. My understanding is that the tenancy can give the LL's addresses anywhere but there must be a separate notice under section 47/48..

(It took over 2 years to get my letting agent to appreciate the point... ).

By the way your tenant has missed another point: Without an E&W address the rent is not due and he didn't need to pay you since the tenancy started!

I also agree the solicitor sounds useless (on tenancy maters). Find another who understands property law as regards tenancies...

Cheers!

Lodger

moonshine
20-10-2009, 15:09 PM
Thanks all for your comments and advice. Just been to the sollicitor again. He says that the problem is that I included in the tenancy agreement my address which is not in E&W and underneath that it says:

Note: Under s 48, Landlord and Tenant Act 1987, notices can be served on the Landlord at the above address

He says that although I can now send the form as mentioned by Krispy (thanks a lot, Krispy :)) but that this does not change the fact that this sentence about s48 is still included in the tenancy agreement. He does not think that informing the tenants of the new address for service of notices will necessarily supersede what has been included in the Tenancy agreement.

Does he have a point?????

jta
20-10-2009, 15:28 PM
I think he's talking nonsense. What would you do if you did live in E&W and wanted to change houses? You would simply send the form to the tenant, he does not have to sign it. Keep proof that you have sent it, do not ask him to sign for the letter but send it twice from different post offices with a free certificate of posting from each. That way you will be complying with the law.
Make sure all correspondence with him in the future has the 'new' address on it.

westminster
20-10-2009, 15:47 PM
Thanks all for your comments and advice. Just been to the sollicitor again. He says that the problem is that I included in the tenancy agreement my address which is not in E&W and underneath that it says:

Note: Under s 48, Landlord and Tenant Act 1987, notices can be served on the Landlord at the above address

He says that although I can now send the form as mentioned by Krispy (thanks a lot, Krispy :)) but that this does not change the fact that this sentence about s48 is still included in the tenancy agreement. He does not think that informing the tenants of the new address for service of notices will necessarily supersede what has been included in the Tenancy agreement.

Does he have a point?????

Nope, I still disagree. The s.48 notice is not an intrinsic part of the tenancy agreement. The s.48 can be a separate document and doesn't need the tenant's signature to validate it. AFAIK, there is nothing in the statute to say the address cannot change (and it wouldn't make sense if it did - addresses can change, people move, companies go bust...).

Read it yourself:

http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1987/cukpga_19870031_en_10#pt6-l1g68

Nothing in there to support what the solicitor is telling you - ask him if he's read it...

moonshine
20-10-2009, 16:27 PM
Thanks very much all of you. Sollicitor has now agreed that it is possible to change the address. I can use his UK address (he also has an office in London) for the tenants to serve notices to.

Is it correct that for all the months the tenants didn't pay rent, I won't have any legal rights? Also, the tenants did pay the first three months rent (they paid that upfront) - surely, the law won't work in such a way that I would have to pay that back, would it? Again thanks for your help.

johnboy
20-10-2009, 16:37 PM
Once again another sorry story of a solicitor not specilising in housing law just muddling his way through.

jta
20-10-2009, 17:41 PM
Is it correct that for all the months the tenants didn't pay rent, I won't have any legal rights?

No, that's not true. The tenant would be within his rights to withhold the rent if he did not have your correct address, but that does not mean he gets out of paying it. as soon as you are sure you have given him the new address, start chasing him for the entire amount. If he does not pay issue a S8 grounds 8,10,11. Follow that through and you should get a CCJ to enforce.

In the meantime, collect as much info as you can in order to trace him after he's done his moonlight flit. (Wot? me? cynical?)

westminster
20-10-2009, 18:22 PM
Is it correct that for all the months the tenants didn't pay rent, I won't have any legal rights? Also, the tenants did pay the first three months rent (they paid that upfront) - surely, the law won't work in such a way that I would have to pay that back, would it?

Following on from jta's post above, no, you won't have to pay back the rent already paid. Just get on with serving the s.48 notice asap, and GET PROOF OF POSTAGE.

The best way, esp. if the tenant is awkward and therefore likely to refuse to accept any signed-for service, is to post first class & get a (free) certificate of posting from the Post Office. Do this twice (i.e. send two copies of the notice from two different post offices, and get two certificates of posting) and this is all the proof you need that the notice was delivered.

As soon as the T receives the notice, all rent arrears immediately fall due.

dominic
20-10-2009, 19:11 PM
You might also want to put one through his door, as no doubt the Postal Strike will feature as an excuse.

Lawcruncher
20-10-2009, 20:55 PM
The solicitor is plainly wrong.

PaulF
23-10-2009, 14:26 PM
I'd be ditching this solicitor and retaining another firm; how long will it be before he makes another 'lemonentry' error?