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Nov, 2014

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  1. #1

    Unhappy Replacement tenancy issue - new tenant paying rent but won't sign contract

    Hope you don't mind a tenant asking for advice on this situation!

    I am in a joint AST agreement with a clause that I can replace myself on the tenancy. Property managed by an agency.

    Having found a suitable replacement, the reference checks etc were completed but the agents failed to get the contract to the new tenant in time for the agreed date. I had already moved so handed the keys to the new tenant on agreed date as agents assured me the new AST would be sent that day.

    3 weeks later and I have discovered that the new agreement has not been signed so the joint AST with my name on is still in place. New tentant has paid rent though since moving in and paid me my share or the deposit.

    Where do I stand?

    a) Does my joint tenancy stll stand - rendering me liable for rent etc and breaching terms by effectively subletting

    b) Has the new tenant and landlord entered a contract due to rent being paid and accepted

    c) are the agents at all liable for failing to manage the situation and not informing me that the agreement has not been signed

    To further complicate things, I have noticed a number of errors on the agreement I signed, such as the wrong property address and conflicting terms around break clauses, so wonder if this renders the contract invalid?

    Grateful for any advice as it is a complete mess.
    Thanks.

  2. #2
    Join Date
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    Do you have any paperwork to say that your agreement has been superceeded?

    How do you know that the tenancy agreement has not been signed?

    You would not get out of any liablities due to conflicting information on your agreement.
    Stalkers, please go over this comment with a fine tooth comb.

  3. #3

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    Thanks for your reply.

    No paperwork, the new replacement tenancy agreement would superceed the existing one had it been signed.

    Confirmed with agents today that they have not received a signed document.

  4. #4
    Join Date
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    It's not because new person hasn't returned signed agreement that "joint AST with your name on is still in place".
    ⊂ Unsuitable for nut allergy sufferers ⊃

  5. #5

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    Really? Why?

  6. #6
    Join Date
    May 2009
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    14,115

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    Quote Originally Posted by Mouse11 View Post
    I am in a joint AST agreement with a clause that I can replace myself on the tenancy. Property managed by an agency.

    Having found a suitable replacement, the reference checks etc were completed but the agents failed to get the contract to the new tenant in time for the agreed date. I had already moved so handed the keys to the new tenant on agreed date as agents assured me the new AST would be sent that day.

    3 weeks later and I have discovered that the new agreement has not been signed so the joint AST with my name on is still in place. New tentant has paid rent though since moving in and paid me my share or the deposit.
    What does this clause actually say?

    In order to assign your position in a joint tenancy, all parties to the contract should execute a Deed of Assignment, varying the current contract. But you seem to be saying that, somehow, the whole joint tenancy was to be surrendered (did everyone agree to this?) and a completely new tenancy granted - in which case, the LL should have refunded the deposit for the old tenancy, and taken a new deposit for the new tenancy.

    The new 'tenant' has effectively paid his deposit to you. How is he going to get it back, ultimately?
    the new replacement tenancy agreement would superceed the existing one had it been signed.
    It would if the Tenant was the same. But T1/T2/T3 is not the same tenant as T1/T2/T4.

  7. #7

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    Thanks for your response
    Quote Originally Posted by westminster View Post
    What does this clause actually say?

    In order to assign your position in a joint tenancy, all parties to the contract should execute a Deed of Assignment, varying the current contract.
    It says "The tenants agree that with the landlords consent, they can replace themselves at anytime providing there is 6 months remaining on the agreement"
    The agents then issue a Replacement Assured Tenancy Agreement in the names of the remaining and new tenant, to be signed by all (except me) and returned.

    Quote Originally Posted by westminster View Post
    ...in which case, the LL should have refunded the deposit for the old tenancy, and taken a new deposit for the new tenancy.

    The new 'tenant' has effectively paid his deposit to you. How is he going to get it back, ultimately?
    The deposit was not returned by the landlord, the agents prefer us to sort it amongst ourselves, and pay a fee for the existing deposit to be registered in the new tenants name (which I haven't yet done).

    Quote Originally Posted by westminster View Post
    It would if the Tenant was the same. But T1/T2/T3 is not the same tenant as T1/T2/T4.
    I see what you mean, so is the old contract surrendered?

  8. #8

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    Actually the new agreement that gets issued is a new AST, fixed term agreement. The date starts from the date of the new agreement but the end date and end of fixed term period do not change from the original contract.

  9. #9
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    May 2009
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    Quote Originally Posted by Mouse11 View Post
    "The tenants agree that with the landlords consent, they can replace themselves at anytime providing there is 6 months remaining on the agreement"
    And that's all it says? It's very poorly drafted, though one gets a vague idea of what it's aiming at. I'm not sure that it's enforceable, because a single joint tenant cannot act unilaterally like this; what if, say, you decided to 'replace yourself' with a crack addict into heavy metal music and the LL says okay because he passes the credit checks? Obviously not okay to force the undesirable replacement on the other joint tenants.

    The agents then issue a Replacement Assured Tenancy Agreement in the names of the remaining and new tenant, to be signed by all (except me) and returned.
    I wonder, how does the agent expect the old tenancy to end, before they grant a new tenancy?

    The deposit was not returned by the landlord, the agents prefer us to sort it amongst ourselves, and pay a fee for the existing deposit to be registered in the new tenants name (which I haven't yet done).
    The LL cannot pass on his obligation to protect the deposit to you or any of the tenants, if that's what you're saying...?

    If the idea is to grant a new tenancy, then I repeat, the LL should refund the deposit for the old tenancy (okay, he may hang on to your former housemates' deposit and transfer it to the new tenancy, but he should have been the one refunding you your share, if everyone agrees that the old tenancy has ended).

    I see what you mean, so is the old contract surrendered?
    It may, arguably, have been surrendered by operation of law (this is when the actions of parties are inconsistent with a tenancy continuing). But as there is no written agreement to this effect, there's uncertainty. In other words, it's something which could only be decided by a court (in the event, say, that the LL claimed against you for unpaid rent).

    As you say, a complete mess.

    In your shoes, what I'd try is this; prepare two counterpart Deeds of Surrender (see this link). One for you/former housemates (all of you must sign), one for the agent to sign on behalf of the LL. The date of surrender is the date you moved out/replacement moved in. All signatures must be witnessed. You keep the one signed by the agent.

    If these are signed and witnessed, it will firmly effect the end of the 'old' tenancy, and your liability. So you'd then not need to worry about whether the 'replacement' T signs anything or not.

  10. #10

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    Thanks so much for your comments. It's clear that this has not been handled in the right way by anyone.

    I'll prepare the two documents, although I feel the agent will refuse to sign their copy as if the contract is surrendered and a new one not signed, then they are in a difficult situation!

    I have never heard of an old contract needing to be surrendered officially, we have had many replacement tenants in the house and this has never been mentioned by the agents before - but reading around it seems standard practice. I assumed that a new contract automatically rendered the old one obsolete?

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