no tenancy agreement

[dylan]

Subject : write tenancy agreement
I am a landlord and I bought a property 9 years ago with sitting tenants .... The tenants say they do not have an agreement and when I bought the property the solicitors did not mention it either - Can I as a landlord write my own tenancy agreement and get it signed by the tenants if they agree - or should I get these ready to buy ones......

[Paul_f]

Subject : write tenancy agreement
I am a landlord and I bought a property 9 years ago with sitting tenants .... The tenants say they do not have an agreement and when I bought the property the solicitors did not mention it either - Can I as a landlord write my own tenancy agreement and get it signed by the tenants if they agree - or should I get these ready to buy ones......

Dylan. There's already plenty on the forum on this very subject but briefly:-


Your solicitor should probably have been more pro-active in finding out about the tenancy beforehand, as it is important that the price you paid for it reflects the occupation by the tenants and the type of tenancy they had. Did you make any enquiries yourself?
If the tenant has been there 9 years he/she will have an Assured Tenancy, with rights of continued occupation unless a S.20 notice was served on the tenant before they took up occupation stating it was an Assured Shorthold Tenancy, or alternatively a Rent Act tenancy.
You are entitled to a market rent but must use the S.13 procedure by serving a Form 4B Notice (freely available from www.odpm.gov.uk/housing) if you want to increase it for an Assured Tenancy only, for which the tenant has 28 days to reply, and can object to your proposed figure.
You can't write a new tenancy agreement, it would be void, even if the tenant signed it. If the tenant demands basic written terms then you must provide them but it will not entitle you to any greater powers of eviction etc., nor can you impose additional terms on them.
You cannot evict the tenant other than on a breach of any of the Grounds in S.8 of the Housing Act 1988, and you will have to go to court if you ever try this route to prove the breach.


I would certainly have made more enquiries before buying such a property.

[oaktree]

You bought a house 9 years ago with sitting tenants - and your solicitor didn't advise you about the lack of a tenancy agreement?? I'd be wanting to know why as it sounds like very slack practise to me; he/she should have spotted that one a mile off.

If there is no agreement then you can pretty much assume that no S20 was served either which makes it an Assured Tenancy. Under the HA 1988 you couldn't grant an assured shorthold tenancy to a tenant who had an assured tenancy immediately beforehand. For tenancies granted on or after 28 February 1997 you could change to an AST if both parties agree.

So you can draft a new tenancy agreement but you can't make it an assured shorthold or give your self any more powers than the original

PaulF beat me to it.

[Paul_f]

Having read again the original post, it's quite conceivable the poster purchased the property with a regulated tenant under the 1977 Rent Act. I wrongly took it that the tenancy was granted 9 years ago but that is probably not the case!

If that's so then you have no chance of gaining possession until the death of the tenant or their immediate successor, and not necessarily even then!

My post about underwriting a new tenancy still holds good! You can't, and despite what oaktree says, trying to get the tenant to agree to a new tenancy without advising him to take legal advice first would be a non-starter, as he would be giving up a great deal to no advantage!

[dylan]

I have all the necessary papers from the solicitors when I bought the house as it was a cash purchase -
But I cannot find anywhere a tenancy agreement - or mention of sitting tenants - BUT I know they are as it is just 5 doors away from me - and I know they have been living there for the last 20 years .....
Where should I look then in these papers ?????

[Paul_f]

I would bet a pound to a penny you didn't tell the solicitor it was a tenanted/occupied property, nor did you have a proper inspection carried out by a Chartered Surveyor beforehand! If you had required a mortgage this would have all come to the surface and you wouldn't have been left in this situation. You probably thought it was a "bargain"!

Your last post tells me you definitely have a tenancy under the Rent Act 1977 but with no written terms. Oh dear!

[dylan]

we had a survey done - and we knew it was a property with sitting tenants
from the Estate Agent ....
They are very old people in their 70's living there - what worries me is that
if their children come in the house and occupy the property although they have both said that their daughter is not interested - and they have also said they will sign a new agreement providing we let them live there until they die.... to this we have said 'YES' ...
But is it legal to write a new tenancy agreement and state that no one else is allowed to stay apart form the tenants named ????.............

[oaktree]

One of the statutory successions of the Rent Act was to allow the tenancy to be transferred, or transmitted, to the tenants family upon death. A clause in a new agreement trying to prevent this would fail as it is a degeneration of the implied terms of the original agreement i.e you're trying to change something they have a statutory right to

It may be possible for the tenant to agree that they are willing, following legal advice, to surrender the tenancy on their death and they don't wish it to be passed on. I'm not sure whether that could be relied on but I'm sure Paul F will tell us ;)

[lawstudent]

I would certainly have made far more enquiries
I think it should be "many more" :)

[dazalock]

snigger ! :p

[dylan]

what do you think I should do ???

[Paul_f]

Oi've been 'ad!

[dylan]

I know looking back at the papers we have - there is a mention on the purchase of the property letter from the solicitors that the sitting tenants are there for life and that the tenancy is for any members of the family who may have interest .............
We asked the old couple and they do not have any children . so they say
but how can you tell -

so to get round this - we asked whether they have any tenancy agreement from previous landlord - and they say they have nothing in writing ....
so we have asked whether they will be prepared to sign an agreement that we make for them - and they have said 'yes' ....as long as they agree what is on the agreement .........
BUT will this be legally binding .....????????????

[Paul_f]

It doesn't quite work like that. There are defined rules of succession, one of which is that any relative who might be eligible must actually be resident at the property for at least two years prior to the death of any exisiting tenant.

It appears therefore that once the the tenants are deceased then you should be able to gain possession without further ado and rent it for a market rent or sell the freehold.

Anyone correct me on this?

[dylan]

i feel a bit relieved - but Do you think I should still see a solicitor ????
and get something in writing ......??????
I am hoping that there are no successors in the family - but how can i find out ??????

its becoming quite crucial - as I will soon be made redundant - and this property is my only savings .....although I know that it would bring a better
price if I sold it without the sitting tenants - I have to wait until both leave or they die ...but hope that noone else takes over ?? but are there any ways of finding out ............................

[lucid]

As far as i am aware, any new agreement signed would be null and void. You cannot reduce the rights which are based in statute, ie. reduce the level of security of tenure. Whatever is signed is worthless and the same rules of family sucession apply as Paul said. So there would be no point in asking them to sign an AST. If you did so and not informed them you knowing their status, ie the papers with the sale from the solicitors, they or their family may have grounds for a counter claim against you, which could be costly. Re. protection from eviction act and or harassment laws.

[dylan]

thanks for the info .....
It seems I have to just wait .....
Should there be any written agreements in the past - or is it just governed by the Rent Act 1977 ....e.g like the tenants rights and landlords rights ...name of tenants etc. etc.
We asked the couple who are our tenants - and they do not have anything in
posession - but they said that I could write an agreement for them ...
which they were willing to sign if they agreed on it ....
But from your post it seems that nothing will hold as its a secure tenancy ...
Is there any way where the history of the tenancy can be found - and its
rules and regulations.....

[martin_n]

I guess you need to read the document through the link below, it gives you better understanding when dealing with Rent Act tenant:

http://www.odpm.gov.uk/stellent/groups/odpm_housing/documents/page/odpm_house_601818-04.hcsp

[lucid]

As said before all new agreements are ASTs so you drawing up an agreement would be a waste of time. You cannot create a rent act tenancy as they no longer exist. All you can do is contact the rent officer service to see if there is an existing registration for the property. If there is that is the maximum that can be charged regardless of what is payed now. [Even if this applies to a different landlord or tenant(s)] If there is an existing registration that is lower than the existing rent you are liable to repay the overpayment going back 2 years. Also if you find that there is an existing registration the maximum fair rents order 1999 applies limiting increases by to the change in the RPI over the last 2 years+5 or 7% i think depending if its the first or subsequent registration after the order came in to effect. On the other hand the local rent service may have a copy of an agreement if there is one.

[dylan]

the rent is not registered - and we are charging them £180 a month -
it has only been increased once by £8 - but the tenants did not object ...
do you think its still worth registering the property at the rent office -
and if so where do I find one ??????

[ngadef]

...i know you've moved on

But I'm amazed you could buy a property without finding out the legal position of the tenants....as someone says it a affects the price so much

My friend was in a similar situation. She helped buy them a retirement home in Spain. They moved out & she sold at a handsome profit £$£$£$£$£ :)

[lucid]

Hi Dylan

heres the link for the rent service office lookup:
https://ebusiness.therentservice.gov.uk/postcode/office_lookup.htm

A point of note is that you say the rent is not registered but you have never contacted the rent service. A registered rent is valid ad infinitum as long as it is not cancelled jointly by landlord and tenant and as long as a regulated tenant lives in the property....so what I was trying to explain in the previous posts is that there may already be a rent registered on the property, that you are unaware of. If you contact them they will tell you. This applies even if it was registered on a previous tenant or landlord.