private landlord selling our house, signed contract till nov. but i forgot to return it!

[lottie85]

hello, im looking for help....our landlord has just told us that they are putting the house on the market, and they will give us two months notice when they have found a buyer, however we signed an agreement at the end of last year to take us up till nov 2011, however i never returned the copies, silly me forgot,she has signed both copies gave them to us to sign,we have signed, but she does not have a copyis it still legal? anyne? many thanks!

[Ed999]

This is not an issue relating to termination of a tenancy, but rather to formation of a tenancy.

 

A tenancy is a contract. In England, to create a contract there must be an agreement: that is to say, an offer, acceptance of it, and payment; or possibly a part performance of the agreement instead (such as taking possession). It is NOT mandatory to have the contract in writing: a contract to grant a tenancy for a fixed term not exceeding 21 years is valid even if oral.

 

It is a question of fact as to whether a contract meets those requirements. The Court might well find that a contract has been formed if rent has been paid by you and accepted by the landlord, if you have been allowed into possession with the landlord's consent.

[Steve__M]

I would have thought that having a copy of the contract signed by the landlady is good evidence of the contract!

 

However, (unless the buyer is another landlord prepared to accept you as tenants,) the solicitor acting for the buyer and for the buyer's mortgage company (often the same person) will almost certainly advise her clients not to proceed unless you have signed the contract to say that you will leave on completion of the sale. I base my knowledge on having recently experienced this twice when selling/transferring properties with someone else still living in them.

 

So in practice, whether or not you have a contract, the landlady needs either to evict you prior to agreeing a sale or to get your agreement to leave before going ahead with the sale.

 

You and your landlady do have the option for negotiating an end to the contract (ie. possibly some compensation for you).

[Ed999]

I would have thought that having a copy of the contract signed by the landlady is good evidence of the contract!

 

 

The enquirer wanted to know whether, by failing to exchange contracts, she had accidentally failed to create a valid tenancy. She is presumably aware of the legal requirement in a land transaction for both parties to sign a copy of the contract, and of the legal rule that no binding agreement is formed until each signed contract is delivered to the other party, known as 'exchange of contracts' - and the equally well known rule that requires a deed to be signed, sealed and delivered.

 

Fortunately, unlike a contract for the sale of land, a contract to lease land need not be in wrtiting. Provided the tenancy is granted for less than 21 years, it is valid even if created orally, provided it is supported by part performance of the agreement: i.e. the payment of rent, or the taking up of occupation.

 

 

The tenant under a fixed term contract, such as there appears to be here, has a legal right to remain until the fixed term ends, i.e. next November. The landlord can only give notice to end the tenancy before that date if the tenancy agreement contains a 'break' clause: an express provision that the landlord can end the letting early by giving a particular period of notice. If there is no such express clause, the landlord can't end the tenancy early.

 

All shorthold tenancies are fixed term tenancies; but the fixed term is usually six months. Any fixed term can be agreed, and here the tenant was lucky to be offered a 12 month fixed term.

 

 

The landlord may commit a criminal offence if he or she tries to evict the tenant without a court order, or harasses the tenant to try to force the tenant to leave early, e.g. by cutting off the gas / water / electricity etc.

 

Read this FAQ - Shorthold Tenancy - posession, eviction and notice

 

 

This advice is applicable only if the rented premises are entirely within England and Wales, and only if you were granted a shorthold tenancy (under which you [and your spouse/partner/children if any] had exclusive use of at least a bedroom, a kitchen and a bathroom, none of which were shared with another tenant nor with the landlord) and were over 18 years of age when the tenancy was granted.

[xoAmyox]

A tenancy with a fixed term of any longer than 3 years must be in writing, as it must be executed as a deed.

[Ed999]

A tenancy with a fixed term of any longer than 3 years must be in writing, as it must be executed as a deed.

 

That may well be so, in fact. Some of the sources still refer to the old 21 year period, but it may have changed.

 

The significance of 21 years is that a lease not exceeding 21 years in duration is not / was not registerable at HM Land Registry, but took effect as a binding overriding interest even though not registered, protected instead by reason of the tenant's occupation of the land.

 

Shorthold tenancies are still NOT registerable because of this rule: thus they are valid even if purely verbal.

 

 

I've never come across a landlord willing to offer a fixed term of more than 12 months, as here, in practice. The point is, so far as shorthold tenancies in England and Wales are concerned, they are in practice ALWAYS going to be valid even if purely oral, unless (on an oral agreement) there is no part performance (i.e. no rent or deposit is paid, and the tenant never takes up the keys, and never moves in).

 

Note that if the agreement is in WRITING then no part performance is necessary: the contract of letting is valid once both copies of it have been signed, and the signed copies have been exchanged by the parties, even if the letting will not begin immediately.

 

An agreement for a future letting must be protected by registration at HM Land Registry, even if it is for less than 21 years, because a tenant who is not in occupation has no overriding interest discernable by inspection of the land; so a buyer of the land is not bound by the letting unless it is noted on the title register. This is the rule even with a 6 month shorthold, because a letting that hasn't started can't be discovered by an inspection of the land.

Edited April 11, 2011 by Ed999