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tc_kent
10-12-2011, 21:49 PM
My friend is trying to move in to a house-share containing a resident landlord, with an individual contract between tenant and landlord. As well as being terribly written, the contract asserts “this Agreement is intended to create an Assured Short hold tenancy as defined the Housing Act 1998, as amended by the Housing Act 1996, and the provisions for the recovery Of possession by the Landlord in that Act apply accordingly”.

It is my understanding that section 10(1) of the Housing Act 1998 means that the agreement cannot be an AST. Beyond this we are unclear; would the nature of the occupancy in reality be an excluded occupancy, excluded tenancy, a lodger, or do all these terms mean roughly the same thing? To what extent can the terms of the AST be relied upon with respect to notice, deposit, etc. I assume the contract is not void as an occupancy is consideration for the agreement, but would the contract be voidable in favour of the landlord (so as to protect the resident landlord's 'right' to evict everyone from his own home with only reasonable delay and no statutory conditions).

Also, as the landlord believes this to be an AST, bound by s.213(1) of the Housing Act 2004 with regard to Tenancy Deposit schemes, what would be the consequences of having the non-AST security deposit protected by TDS. Would the sum be returned directly to the landlord with no resolution if a dispute were to arise?

If anyone wants a laugh, the attached inventory contains only 6 items, one of which is simply “Garden”. The entries for bathroom and kitchen are just described as “fully fitted”.

(p.s. I did try and search for a relevant thread, and know it has been discussed many times, just not precisely as far as I know).

Snorkerz
10-12-2011, 21:55 PM
You are right, it is not an AST, your friend will be an 'excluded occupier'. However, just because it isn't an AST does not mean it isn't a contract, any contractual obligations on either party still apply.

Still, the landlord seems to be giving your friend far more rights than being an excluded occupier normally confers (ie almost none!) so woohoo!

Any specific reference to notice, deposits etc can be relied upon, but just because it says its an AST does not mean the occupant can rely on clauses in the 1988 Housing Act etc if not specifically mentioned.

tc_kent
10-12-2011, 22:56 PM
Any specific reference to notice, deposits etc can be relied upon, but just because it says its an AST does not mean the occupant can rely on clauses in the 1988 Housing Act etc if not specifically mentioned.

Snorkerz thanks for your reply.

I'm not too sure how specific the references are because they are qualified with "in accordance with..." HA1988, PEA1977 etc. You might look at it that the landlord is agreeing to be bound by the terms in those statutes irrespective of their remit, or that he is simply acknowledging (what he believes is) his statutory duty. The courts would probably view it as the latter wouldn't they. :(:

Anyhow, would the following wording be acceptable as an addendum, and would it spook a reasonable landlord?


"3.4. In any case, and without prejudice to the grounds of Schedule 2 of the Housing Act 1988, and the rights existing under the Protection from Eviction Act 1977, the notice period for termination of occupancy agreement shall be no less than one month."

I realize "occupancy agreement" is probably not a satisfactory term, but to call it a tenancy agreement might invite the argument (?) that there was no standard tenancy only a license, and the tenant could therefore be thrown out on his arse with 'reasonable' haste.

Obviously we're not planning on there being a problem, but I'm just feeling very anxious for my friend that this shoddy contract exists outside AST authority.

tc_kent
11-12-2011, 19:10 PM
This is a bump.

Snorkerz
11-12-2011, 19:20 PM
I think your addendum is too much. What does the 'ast' say about notice?

tc_kent
11-12-2011, 20:05 PM
I think your addendum is too much. What does the 'ast' say about notice?

The tenant's obligation is that he must give one month's notice and find an alternative tenant if during the fixed term.

After re-reading it, there is no obligation of the landlord with regard to notice, at all. There is a term stating that breach of agreement by tenant is grounds for repossession, subject to Sch.2 Housing Act 1988, that this must involve a court order if possession is not surrendered, and that this does not affect the tenant's rights under Protection from Eviction Act 1977.

Verbatim:
"
3- If at any time
3.1. Any part of the Rent is outstanding for 21 days after becoming due (whether formally Demanded or not) and/or.
3.2. There is any breach, non-observance or non performance by the Tenant of any covenant or Other term of this Agreement which has been notified in writing to The Tenant and the tenant? Has failed within a reasonable period of time to remedy the breach and/or pay reasonable Compensation to the Landlord for The Breach and/or
3.3. Any of the grounds set out as Ground 2, 8 or Ground 10-15 (inclusive) (which Relate to Breach of any obligation by a Tenant) contained in the Housing Act 1988 Schedule 2 apply The Landlord may recover possession of the Property and this Agreement shall come to an End, The landlord retains all his other rights in respect of the Tenant's obligations under this Agreement, Note that if possession of the Property has not been Surrendered and anyone is Living at the Property of if the tenancy is an Assured or assured Short hold Tenancy then the Landlord must obtain a court order for possession before re-entering the Property, This clause Does not affect the Tenant's right under the Protection from Eviction act 1977."

Snorkerz
11-12-2011, 20:21 PM
Section 3 seems to be about what will happen if the tenant is a 'naughty boy'. Is there another section about ending the tenancy once the contract is ended? Look for a reference to 'section 21'. If not, I suggest you ask for a clause in line with the 1988 Housing Act


Once the fixed term is over, The landlord may give a minimum of 2 months notice to take effect on the last day of a rent period.

As it does match perfectly with section 21 of the 1988 Housing Act the landlord would have no reason to refuse such a request and it shouldn't ring any alarm bells. Having said that, I'm not a lawyer and I am no expert at drafting, so fingers Xed.

BTW, the real legislation refers to a 'tenancy period' I have changed that to a 'rent period' to avoid any confusion ofer its status as a tenancy or not.

tc_kent
11-12-2011, 20:45 PM
Section 3 seems to be about what will happen if the tenant is a 'naughty boy'. Is there another section about ending the tenancy once the contract is ended?

No, unfortunately there is not. The only other terms relating to ending the tenancy are 1. The tenant cannot normally end this agreement before end of term unless X,Y,Z. 2. If the tenant stays beyond the fixed term, a periodic tenancy will arise.

Paul_f
11-12-2011, 21:55 PM
You should stop referring the guy as the "tenant" as he is only a lodger so any reference to any of the Housing Acts do not apply. There's lots and lots of posts on this subject - just scroll to the bottom of this page.

Snorkerz
11-12-2011, 22:39 PM
You should stop referring the guy as the "tenant" as he is only a lodger so any reference to any of the Housing Acts do not apply. There's lots and lots of posts on this subject - just scroll to the bottom of this page.Most of tc_kent's references to 'the tenant' are quotes from the faux tenancy agreement his/her friend is being expected to sign. As such they are correct.

Do you have a different viewpoint on this situation to the advice already dispensed Paul?

tc_kent
12-12-2011, 00:12 AM
You should stop referring the guy as the "tenant" as he is only a lodger so any reference to any of the Housing Acts do not apply.

So this couldn't be an excluded tenancy? Would it be arguable that a lock on the room door and the contract term "The Landlord agrees that the Tenant may live in the Property without unreasonable interruption From the Landlord..." amounts to exclusive possession of the room? What about if the word property were changed for room. As far as I've read, that would be the distinction between a lease and a license, while the non-technical terms of lodger and tenant don't have any gravitas when operating outside the protected/assured bubble anyway?

I guess I should just hope for a happy occupancy. Part of my fear is legal liability and part because the landlord seems to be a devout Muslim while we're devout homosexuals. Well, a more basic question: presumably if the landlord forces him out and then tries to claim rent using "The Landlord retains all his other rights in respect of the Tenant's obligations under the Agreement", a counter-claim could be made for an equal amount under breach of contract? The breach being of the term "The Landlord agrees that the Tenant may live in the Property without unreasonable interruption From the Landlord".

Thanks for all input.

Snorkerz
12-12-2011, 09:09 AM
Well, a more basic question: presumably if the landlord forces him out and then tries to claim rent using "The Landlord retains all his other rights in respect of the Tenant's obligations under the Agreement", a counter-claim could be made for an equal amount under breach of contract? The breach being of the term "The Landlord agrees that the Tenant may live in the Property without unreasonable interruption From the Landlord". The landlord can't 'retain' anything he hasn't already got. So unless it's in the contract, it's a no-go.
I accept it could be an exluded tenancy but it has 'by rights' the same protection as a lodger - ie almost none!

I do think however that you may want to consider the fairness of taking up the tenancy where there is such a dramatic lifestyle difference. This is the guys home, your friend could make the landlords life almost hell on earth in his own home. It would be relatively easy for your friend to select a property where this would be less of an issue, the landlord doesn't have this option.

Contractual rights or not, I can see this 'tenancy' ending badly - the landlord is hardly likely to be the most friendly and co-operative person in this situation and your friends only redress would be through the courts for any financial loss - ie if the landlord changed the locks the police would not get involved for illegal eviction because they would understand the resident landlord concept.

tc_kent
12-12-2011, 14:21 PM
After bringing up the issue of a resident landlord today, the guy who introduced himself as the landlord said he wasn't really the landlord, that the real landlord was "somewhere else", and that we didn't need to know about him. We left rather quickly.

Snorkerz
12-12-2011, 14:30 PM
My guess....

The person who you thought was going to be the landlord actually rents the place from his landlord. Hence the document he intended using, being a copy of the agreement between those two (which would rightly be an AST).

I am guessing the landlord does not permit 'lodgers'.

Had the deal gone ahead, the person you thought of as landlord, would indeed have been your friends landlord, and the landlords 'landlord' would have been known as the superior landlord. There would be no legal relationship between your friend and the superior landlord.