Incorrect tenancy type

[ChrisRo55]

What are the implications of a landlord issuing an AST agreement for a rental which should actually be covered under a common law (contractual periodic tenancy)?

Cant the terms be upheld, or is the agreement null and void?

This is in relation to a deposit issue (obviously not covered by protection scheme even after the recent changes)

[MrShed]

Just for some background, what are the reasons that the rental should only be covered under common law?

And, what terms in particular are we talking about? In general, the terms can be upheld, as it is a contract supplied over and above the statutory rights of the tenant. However, this may vary in certain circumstances, hence asking the question

[Aequitas]

If you are in a situation where:

1. You have had exclusive occupation of property

2. Have been paying money for the occupation

3. The landlord is not resident on the property

4. It is not a "family" situation

then, there is almost certainly going to be a tenancy of some kind. Even if there is no tenancy, you are still bound by the terms of any contract.

Whether or not the tenancy is an AST depends upon whether the conditions set out in the Housing Act 1988 are fulfilled. The fact that the conditions are not fulfilled does not mean there is no tenancy. This is the case even if the tenancy purports to be an AST in circumstances where it cannot be an AST.

I think you need to let us have more information.

[ChrisRo55]

Originally Posted by Aequitas

If you are in a situation where:

1. You have had exclusive occupation of property

2. Have been paying money for the occupation

3. The landlord is not resident on the property

4. It is not a "family" situation

then, there is almost certainly going to be a tenancy of some kind. Even if there is no tenancy, you are still bound by the terms of any contract.

Whether or not the tenancy is an AST depends upon whether the conditions set out in the Housing Act 1988 are fulfilled. The fact that the conditions are not fulfilled does not mean there is no tenancy. This is the case even if the tenancy purports to be an AST in circumstances where it cannot be an AST.

I think you need to let us have more information.

Thankyou for your response, the situation (as always) is quite complex, and I am investigating on behalf a of a friend.


Basic story;

• Tenancy commenced in joint names (two friends) in late September 2006
• Tenancy agreement presented by the landlord (and agreed by the tenants ) was in the format of an AST
• The total annual rental value was circa £29,000, hence it should never have been presented as an AST (Dodgy / inept Landlord, & inexperienced tenants)
• Notice was served by the tenants in early August 2007
• Tenants left property late September 2007, 12 months after original commencement of contract.
• Tenants withheld last months rental payment as after discussion with a 3rd party who had rented another property from the same landlord they had been informed that the landlord is well known for dodgy practices and withholding of deposits.
• Inventory not presented at start of tenancy, & no queries by either party over damage or loss at the end of the contract, or at any time since during ongoing correspondence.
• Landlords refuses to return deposit
• Landlord has indicated he wishes to deducted “solicitors fees”, “correspondence fees” and “witness costs” from deposit amount (there is no current court case)

In real terms the issue of a claim for the deposit should be relatively straight forward, the pre action protocols have been complied to by the tenants, and 3 LBA’s have been sent and acknowledge by the landlord.

The only question is whether the absence of a correct agreement will in someway effect or jepodise a claim?

Many thanks in adance

[MrShed]

You mention enforceablity of terms above. Are there any terms in particular you mean? Otherwise, no the fact that the tenancy is not an AST should not affect any claim.

[ChrisRo55]

No specific terms, obviously the claim will be for the value of the deposit, minus the withheld last rental payment.

Just wasn’t sure if that by some quirk the fact that the tenant had signed an inappropriate / incorrect agreement type that this would make any, or all of the terms unenforceable.

I presume the court would only look to confirm if a tenancy (regardless of type) existed, and if the deposit has been unlawfully withheld?

[MrShed]

Absolutely correct Chris. The deposit can almost in this situation be taken as a completely seperate contract. IE a contract which states "I give you this money at the start of the (other) contract (ie the "tenancy"), and expect it returned at the end of the contract apart from damages caused". Whether it is actually classed as a tenancy is even irrelevant. The only difference it causes is the eligibility for TDS rules.

[ChrisRo55]

Originally Posted by MrShed

Absolutely correct Chris. The deposit can almost in this situation be taken as a completely seperate contract. IE a contract which states "I give you this money at the start of the (other) contract (ie the "tenancy"), and expect it returned at the end of the contract apart from damages caused". Whether it is actually classed as a tenancy is even irrelevant. The only difference it causes is the eligibility for TDS rules.

Thanks for your help it is very much apreciated