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Lat
13-10-2011, 14:48 PM
Hello everyone,

I would be interested in learning other legal view points.

I have 2 tenants living at one property with both names on the AST. When they moved in, a third party full inventory was taken and has been signed off. The deposit is protected with Mydeposits and the prescribed information has been supplied. They are now in a monthly periodic tenancy.

The lead tenant "A" wants to stay at the property and tenant "B" wants to leave. Tenant A has found a replacement (tenant "C") who wants to move in.
The references have come back good for tenant "C".

I am a member of a Landlords association and they have advised me that all I need to to do is use a "Tenancy Deed of Assignment" (DoA). Tenant B relinquishes his contractual responsibilities to tenant "C". I do not touch the existing AST and the Inventory remains as was. I then send a copy of the DoA to Mydeposits. That's it! nothing more!

I phoned Mydeposits up to confirm the above. They say, because the tenancy is periodic they cannot change the name on the certificate. I will have to issue a new AST and raise a new certificate. They go on to say "If the tenancy was still in term then they could change the name on the certificate."

I would prefer not to raise a new AST (6 month minimum contract) and having another inventory done and paying for another certificate.

Who is right?

Lat

oaktree
13-10-2011, 17:05 PM
I wouldn't use a deed of assignment. Let tenant B give notice to end the exisiting tenancy and then create a new tenancy with A & C.

A new AST doesn't have to be a minimum 6 months; you can use the old inventory as a template for a new one, just make sure you deal with any damages caused by A & B.

westminster
13-10-2011, 17:54 PM
I have 2 tenants living at one property with both names on the AST. When they moved in, a third party full inventory was taken and has been signed off. The deposit is protected with Mydeposits and the prescribed information has been supplied. They are now in a monthly periodic tenancy.

The lead tenant "A" wants to stay at the property and tenant "B" wants to leave. Tenant A has found a replacement (tenant "C") who wants to move in.
The references have come back good for tenant "C".
Has Tenant B served written notice to quit? If so, the whole tenancy ends at notice expiry and you have no choice but to grant a new tenancy (or treat Tenant A as a trespasser and apply for possession).


I am a member of a Landlords association and they have advised me that all I need to to do is use a "Tenancy Deed of Assignment" (DoA). Tenant B relinquishes his contractual responsibilities to tenant "C". I do not touch the existing AST and the Inventory remains as was. I then send a copy of the DoA to Mydeposits. That's it! nothing more!
And Tenant C is happy to take on the liabilities for an inventory carried out months before they moved in? Happy, ultimately, to pay for damage already caused by Tenants A/B? More fool them.


I phoned Mydeposits up to confirm the above. They say, because the tenancy is periodic they cannot change the name on the certificate. I will have to issue a new AST and raise a new certificate. They go on to say "If the tenancy was still in term then they could change the name on the certificate."
You have to remember that MyDeposits' staff are not legally qualified practitioners, nor even necessarily in full command of their own T&C, so I suggest you read through the T&C. If you do proceed with an assignment as opposed to a new AST, and MyDeposits are absurdly awkward about the changeover, then simply protect the deposit (for free) with the DPS.


I would prefer not to raise a new AST (6 month minimum contract) and having another inventory done and paying for another certificate.
There is no minimum term for an AST (but you cannot obtain a possession order under s.21 to take effect earlier than six months after the start of a new AST). Nothing to stop you creating a contractual periodic tenancy if you wish.

Snorkerz
13-10-2011, 18:24 PM
Agreed you can assign a fixed term tenancy - but is it even possible to assign a statutory periodic tenancy?

Lawcruncher
13-10-2011, 20:25 PM
Agreed you can assign a fixed term tenancy - but is it even possible to assign a statutory periodic tenancy?

Yes it is.

Lat
18-10-2011, 17:53 PM
For the benefit of other readers and to clarify the position. Mydeposit's will not accept a "deed of assignment" when the tenancy is periodic.

I am forced into providing a new AST. Which initially was not a problem but having listened to the lead tenant "A" who I now find out has fallen out with tenant "B", I am beginning to realise this is not as simple as first expected.

Tenant "B" claims he paid £300.00 into the deposit.
Tenant "A" says no, she paid all the deposit.
Tenant "C" at the moment seems content to accept the Inventory taken a year earlier.

Tenant "A" who is a "drama queen" in my opinion is the person that wants the new contract with tenant "C" is never available for contract signature, is always too busy and is away that week and wants it done ...like tomorrow.

The clock is ticking and the rental period on the original AST is the 26th October.

Can an AST be signed and dated before contract start date?
How would you deal with the deposit issue?
Would it be simpler to issue a S21 and start again with new tenants?

As always,

I look forward to your replies,

Lat

westminster
18-10-2011, 18:43 PM
For the benefit of other readers and to clarify the position. Mydeposit's will not accept a "deed of assignment" when the tenancy is periodic.

I am forced into providing a new AST.
No, you're not. You could protect the deposit with the DPS as I previously suggested. http://www.depositprotection.com/


Which initially was not a problem but having listened to the lead tenant "A" who I now find out has fallen out with tenant "B", I am beginning to realise this is not as simple as first expected.

Tenant "B" claims he paid £300.00 into the deposit.
Tenant "A" says no, she paid all the deposit.
Tenant "C" at the moment seems content to accept the Inventory taken a year earlier.

Tenant "A" who is a "drama queen" in my opinion is the person that wants the new contract with tenant "C" is never available for contract signature, is always too busy and is away that week and wants it done ...like tomorrow.

The clock is ticking and the rental period on the original AST is the 26th October.

Can an AST be signed and dated before contract start date?
How would you deal with the deposit issue?
Would it be simpler to issue a S21 and start again with new tenants?

If you are going to grant a new AST to Tenant A and Tenant C, then you cannot do so before the joint tenancy of Tenant A and Tenant B has ended.

The current tenancy can only be ended either by:
1) you/Tenant A and Tenant B signing a Deed of Surrender
2) either/both Tenant A/Tenant B serving written notice to quit - the tenancy will end at T's notice expiry
3) you serving notice, obtaining a possession order and getting a court bailiff to execute it.

One of these things has to happen before you can grant a new tenancy. When the tenancy ends, you release the deposit to the lead tenant, and it's their problem who gets what. You also take a new deposit from Tenant A and Tenant C and protect it against the new tenancy.

If you instead go with assigning Tenant B's position to Tenant C, with the periodic tenancy continuing, then you'll all have to sign a Deed of Assignment.

There is no ticking clock from your POV, and no pressure to do anything within a certain time. As things stand, the joint tenancy remains in place with both Tenant A and Tenant B liable for rent, regardless of whether Tenant B moves out or not. They are the ones who want things to change, so they will have to either serve notice to quit, or cooperate with whatever is necessary to enable a change in the tenancy (whether that's agreeing a Deed of Surrender, or a Deed of Assignment).

Don't get drawn into their dramas. Just tell them that you are happy either to agree a surrender or an assignment, and will cooperate as and when they are ready to proceed; and that, meanwhile, the tenancy of Tenant A and Tenant B continues along with their liability for rent. I would also advise them that the division of the deposit is their problem.

If you think that there is a possibility that they will not reach an agreement between themselves, then it's probably a good idea to serve a s.21 notice.

N.B. a s.21 notice is not a notice to quit, does not end the tenancy and does not oblige the Ts to vacate; it merely entitles you to apply for possession after notice expiry. In a SPT, the notice must give at least two months, and also expire "after" the last day of a period of the tenancy, e.g. "after [dd/mm/yy"]

You mention 'rental periods'. Note that the SPT begins the day after fixed term expiry, and the length of the tenancy periods is based on the frequency with which rent is payable. Usually, rental periods and tenancy periods will coincide, but not always. It is important to be aware of the distinction. For example, take a six month fixed term AST commencing 15th Jan, with rent payable monthly on the 1st of the month. The SPT will commence on 15th July, with tenancy periods running 15th -14th of the month. A s.21 notice would have to expire "after 14th [mm/yy]" (i.e. not based on the rent due date).

bureaucrazy
18-10-2011, 21:08 PM
I have been reading this thread with interest as I am also in a situation where I am considering assignment of a tenancy.

I would just like one point clarified. Do all existing joint tenants have to sign the deed of assignment or can just one?

In my case, 3 (A,B&C) out of 4 (D) original tenants have left the country without telling me and cannot be traced, the last remaining tenant (D) wants to leave soon. He would be willing to agree to assign the tenancy to the lodgers he brought in without asking me (E&F). I am happy for E&F to live there but I want to preserve my ability to give 2 months notice. I am happy for D to assign to E and F or just E and for F to become lodger of E if that's easier. I don't meant o hijack this thread but rather than start a new one I thought it would be OK to post here to clarify for deeds of assignment in general whether all original tenants must sign the deed before an assignment can take effect.

Lat
18-10-2011, 21:23 PM
The current tenancy can only be ended either by:
1) you/Tenant A and Tenant B signing a Deed of Surrender
2) either/both Tenant A/Tenant B serving written notice to quit - the tenancy will end at T's notice expiry
3) you serving notice, obtaining a possession order and getting a court bailiff to execute it.


Westminster, your time on here is priceless :-x

Can you please clarify point 2 above.
I think you mean..

2) either Tenant A OR Tenant B serving written notice to quit - the tenancy will end at T's notice expiry

westminster
18-10-2011, 22:36 PM
I have been reading this thread with interest as I am also in a situation where I am considering assignment of a tenancy.

I would just like one point clarified. Do all existing joint tenants have to sign the deed of assignment or can just one?

In my case, 3 (A,B&C) out of 4 (D) original tenants have left the country without telling me and cannot be traced, the last remaining tenant (D) wants to leave soon. He would be willing to agree to assign the tenancy to the lodgers he brought in without asking me (E&F). I am happy for E&F to live there but I want to preserve my ability to give 2 months notice. I am happy for D to assign to E and F or just E and for F to become lodger of E if that's easier. I don't meant o hijack this thread but rather than start a new one I thought it would be OK to post here to clarify for deeds of assignment in general whether all original tenants must sign the deed before an assignment can take effect.
I think it'd be best to start a new thread, but the short answer is that, in order to assign a position on the tenancy, Tenants A,B,C & D would all have to sign the Deed of Assignment.

westminster
18-10-2011, 22:38 PM
Westminster, your time on here is priceless :-x

Can you please clarify point 2 above.
I think you mean..

2) either Tenant A OR Tenant B serving written notice to quit - the tenancy will end at T's notice expiry

Yes, either Tenant A or Tenant B may serve notice to quit, and the notice would end the periodic tenancy, but they could both jointly serve a notice to quit, too.