View Full Version : can we make a backdated tenancy agreement or add a tenant to an existing tenancy?
20-12-2011, 12:17 PM
We originally let our property out to the neighbours son, his partner and kids and the partner's brother. We all signed a tenancy agreement dated 8/8/11, the date they moved in. 2 weeks on, the couple informed us the brother had left after a big row, and asked if their sister could replace him on the tenancy. She moved in on 1/9/11 and we signed a new tenancy agreement on that date. As it happened, the brother moved back in within a couple of weeks and has not paid rent, nor have we chased him for any since his sister was now on the contract. However the couple split in September, and several weeks on the girlfriend and the sister moved out. The girlfriend's Housing benefit claim was closed after her split and not responding to requests for proof of income. The sister never got her act together to even activate her claim. The brother wants to go back on the contract but we are wary to do so with the family's track record of sorting their HB claims. Can we add him to the existing tenancy? If so it would help us by
a)not having to trace the girlfriend and sister to get their wish to come off contract in writing
b)give a possibility of recieving backdated HB for the brother who's lived there all along
c)give us option of issuing a section 21 if the rent doesn't come in...if we do a new contract we would have to wait another 6 months minimum to do this
If anyone can advise us we would be so grateful.
Get them all out now, you don't need this hassle.
and refer to the answers you have on your post
21-12-2011, 20:04 PM
We originally let our property out to the neighbours son, his partner and kids and the partner's brother. We all signed a tenancy agreement dated 8/8/11, the date they moved in. 2 weeks on, the couple informed us the brother had left after a big row, and asked if their sister could replace him on the tenancy. She moved in on 1/9/11 and we signed a new tenancy agreement on that date.
It's hard to keep track so I'm going to call the neighbour's son X and the son's girlfriend Y.
You let the property to X and Y, and Y's brother [YB] on a joint tenancy - let's call this the first tenancy.
Then, you granted a new (?), second, tenancy to X, Y and Y's sister [YS], but did you do this while the first tenancy was still in place? i.e. without first formally ending the tenancy of X, Y, YB, (or instead assigning YB's position on the tenancy to his sister YS by Deed)? Please clarify what happened and whether any Deed was executed to surrender the first tenancy or to assign YB's position.
Then YB moved back in, and Y and YS moved out.
So now X and YB live there?
It's difficult to advise before you have given more information, but broadly speaking it is theoretically possible to add someone to an existing tenancy agreement - however, you need the consent of all parties to the tenancy agreement. You can't do it behind the back of any absent legal tenant. If, as I suspect, you have granted two tenancies over the same property simultaneously, it may create significant complications in terms of trying to obtain a possession order, albeit not insurmountable, so do not despair.
Overall, I think you'd be better off getting rid of this bunch as they don't sound in any way to be desirable tenant material.
22-12-2011, 01:00 AM
westminster, I think you have missed out on the arrival of YBs girlfriend (YBG) when YB returned, YBG on no T.
YS (2nd contract) and YBG ('lodger') have now vacated and YB wants back on the T with neighbour's son, partner & kids ie orig contract Ts
Far too complicated for this bear with little brain. Clean slate required.
If both contracts were for 6 month fixed term, both will have morphed to SPT after 1st Mar and any one T can end the T by giving 1 month notice to take effect after 1 March, pref NS. as only Ts common to both is NS & partner. LL should serve seperate s21s now on all Ts on both agreements, to expire 'after 1 Mar'
OP seems to want continuation of rent and easy life.
The simplest solution could have been having the neighbours son & partner as sole joint Ts. If they couldn't afford the rent, no T.
Who in this spag bol of tenants did the OP/LL credit check, if any?
I fear none!
22-12-2011, 09:36 AM
Thank you very much for all comments. Unfortunately, being new and unexperienced landlords, we didn't do credit checks on Ts. Neither did we terminate first tenancy properly, as we didn't know how / procedure. We have been told getting them out with S8 will be difficult because of this. Yes, it's spag bol- any further advice would be so welcome. Don't know how to contact the sister. Thanks again.
22-12-2011, 12:34 PM
I would not recommend serving two s.21 notices (one for each tenancy) as mariner suggests.
I would proceed as though the first tenancy was surrendered - a surrender doesn't have to be done formally by Deed, it can happen 'by operation of law', which is when all parties act in a manner inconsistent with the tenancy continuing. The brother is saying he 'wants to go back on the contract', which suggests that in his mind, the first tenancy was ended; and the same goes for you, and X & Y. So arguably all parties acted in a manner inconsistent with the first tenancy continuing, and it was thereby surrendered by operation of law.
Therefore, serve a s.21 notice relating to the second tenancy only. You don't need to trace anyone who is no longer living there. You serve the notice at the rental property address, naming all the tenants on the second contract.
The second tenancy commenced on 1st September 2011. How long is the fixed term - six months?
Is rent payable monthly, under the terms of the contract? How much rent is owing and unpaid? Is it at least two months?
27-12-2011, 13:33 PM
Hi sorry for delay replying to your questions-my computer crashed just before Christmas, and I dictated a reply over the phone to my brother who forgot to post it!We now have a new one so here goes!
The first tenancy was 12 months and the second 6 months. We therefore had more to gain and less to lose by putting the brother on the new one...it certainly solves the problem of having taken him off without his consent, and means the 12 month tenancy is now null and void, giving us the option of confidently issuing a section 21 6 months earlier if the tenants don't get their act together with their HB claims. We had issued a section 8 previously but this 2 tenancies complication meant we couldn't confidently go through with it. We have now added the brother to the second contract, and have the ex-boyfriend (x)'s written permission. We have no means of contacting the sisters but I don't believe they will return. We have agreed to give the X and Y's brother one last chance and then can evict them by normal procedures if rent doesn't come in. Can we issue a section 8 if the place was in a bad state when they moved in? That is the other issue, as they approached us while we were still doing the place up saying they needed it urgently and that they would help do it up in return for letting them off the deposit (yes I admit we were so naive!) Of course they never did, and their social worker said that if we were to go to court with a section 8 the judge would look very unfavourably on that and maybe throw it back on us.
thankyou again for all your advice!
27-12-2011, 21:52 PM
The first tenancy was 12 months and the second 6 months. We therefore had more to gain and less to lose by putting the [sister?] on the new one...it certainly solves the problem of having taken him off without his consent, and means the 12 month tenancy is now null and void,
It's not 'null and void' as a point of *fact* - however it's arguable the first tenancy was surrendered. Given that there is uncertainty, it's okay to proceed on this basis, but ultimately, if the whole matter were to come to light, it would be up to the court to decide.
...giving us the option of confidently issuing a section 21 6 months earlier if the tenants don't get their act together with their HB claims.
You can serve a s.21 notice at any time after a tenancy has started; what is relevant is the length of notice and the date of expiry.
We had issued a section 8 previously but this 2 tenancies complication meant we couldn't confidently go through with it. We have now added the brother to the second contract, and have the ex-boyfriend (x)'s written permission. We have no means of contacting the sisters but I don't believe they will return.
Unless the brother was added to the second tenancy by way of a Deed, executed as a Deed, which included the written consent of ALL the joint tenants named on the second tenancy (not just one of them), then the 'addition' of a new joint tenant isn't a fait accompli.
Trying to argue that the second tenancy was surrendered as well as the first is asking for trouble - so I think you're better off keeping things simple, and proceeding on the basis that the first tenancy was surrendered and the second one remains in place, with the tenants as named on the second contract.
As I said before, any notice your serve should be served on the tenants named on the second tenancy contract, at the rental property address. Doesn't matter if the actual occupants have changed meanwhile.
Can we issue a section 8 if the place was in a bad state when they moved in?
There is nothing to stop you serving a s.8 notice, if you think there are grounds upon which to do so. The grounds are in Schedule 2 of Housing Act 1988 (http://www.legislation.gov.uk/ukpga/1988/50/schedule/2). Nos. 1-8 are mandatory grounds, and the rest are discretionary (meaning that the court has no option but to make a possession order if you prove 1-8, but for 9 onwards it must be convinced that the circumstances justify making an order).
One of the discretionary grounds - No 13 - mentions "The condition of the dwelling-house or any of the common parts has deteriorated owing to acts of waste by, or the neglect or default of, the tenant or any other person residing in the dwelling-house". So it makes no difference if the property were in a 'bad state' at the start, if it has 'deteriorated' since then due to the T's actions.
their social worker said that if we were to go to court with a section 8 the judge would look very unfavourably on that and maybe throw it back on us.
Translation: If you serve a s.8 notice citing ground 13, you will need very good evidence to convince the court that the damage caused by the T is serious enough to merit making a possession order. You may also find that the T counterclaims against you (e.g. not uncommon for 'bad' tenants to invent spurious counterclaims about non-existent disrepair - the court tends to be willing to listen to such claims, even if unsupported by evidence).
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