Is modifications in a standard AST legally binding for non payment of rent ? **RESOLVED**

[axil23]

Andy post 16 is News about Mears putting Asylum seekers into hotels. As for the Asylum seekers getting paid rent directly to forward to Mears that is not the case. On my tenancy it states the following in which Mears is the tenant 

 

Quote

2. Tenant Covenants
   The Tenant agrees with the Landlord:

3.1 From the Start Date to pay the Rent monthly on the last working day of the month such rent to be paid 30 days in arrears SUBJECT TO the right of the Tenant to set off against the Rent and other monies due hereunder if any in relation to the Property and/or against any rents or other monies or charges falling to be paid to the Landlord by the Tenant in relation to any other property let by the Landlord to the Tenant all sums paid and costs incurred by it in effecting any repair, rectification of defects and/or maintenance works to or at the Property that the Landlord should do or have done but has failed to do or effect or otherwise as specified in the Notice of Set Off and similarly to offset costs incurred by the Tenant in replacing any fixtures fittings and equipment

 

 

 

Think they may use this but then again they need to prove that they did the work after informing me which they have not. 

Edited January 11, 2022 by axil23

[AndyOrch]

Yes Im aware of that.....I posted it to bring to the attention that Mears are not a Letting Agency/Estate Agent as such ...they are A Goverment Contractor appointed to house Asylum seekers and as such no rent is paid by the sub tenants.

[axil23]

Ah ok. I thought you did. Thanks! 

 

So in this case would a section 8 stand? 

[AndyOrch]

Yes it would stand but you need to do your groundwork first and exhaust the suggestions that I have advised.

 

Have you requested all the original paperwork concerned with the repairs ?

Have you spoken to neighbor's to see if they recall roof work being carried out ? 

 

Once you have covered the above and if no paperwork is forthcoming I would advise them of the rent arrears and put them on notice a section 8 notice is being considered and that they have x days to clear the arrear's otherwise it will be served without notice.

[45002]

4 minutes ago, axil23 said:

Ah ok. I thought you did. Thanks! 

 

So in this case would a section 8 stand? 

 

Not by you.

 

You're not the landlord if the agreement says tenants must pay rent to "Mears Limited"

 

Your dispute would be with "Mears Limited"

[45002]

 

In the agreement you have with Mears Limited, who does it say the rent should be paid to

 

You axil23 or Mears Limited ?

[axil23]

34 minutes ago, 45002 said:

 

In the agreement you have with Mears Limited, who does it say the rent should be paid to

 

You axil23 or Mears Limited ?

 

Agreement states. 

 

Landlord - Me

 

Tenant - Mears

 

The rent is due to me from the tenant Mears. 

[axil23]

43 minutes ago, Andyorch said:

Yes it would stand but you need to do your groundwork first and exhaust the suggestions that I have advised.

 

Have you requested all the original paperwork concerned with the repairs ?

Have you spoken to neighbor's to see if they recall roof work being carried out ? 

 

Once you have covered the above and if no paperwork is forthcoming I would advise them of the rent arrears and put them on notice a section 8 notice is being considered and that they have x days to clear the arrear's otherwise it will be served without notice.

 

I have spoken with the downstairs tenants who can't recall any work having been done. 

 

Requested the paperwork and have heard nothing back. 

 

Have asked them to clarify why did they get the rood fixed without informing me. They only informed me that the flat roof was leaking. According to the terms of the AST they need to inform me and give me 5 days notice. No reply. 

[45002]

From another forum 

Problems with tenant getting work done and not paying me rent - LandlordZONE Forums

TINYURL.COM

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I have rented my house to a {name removed} who use it to house Asylum seekers from a govt contract. In June the flat roof developed a leak and...

 

[Aequitas]

Information on the other forum is that the lease is for 5 years but not granted by deed. That means the lease is void. What the tenant has is probably a periodic lease on the same terms as set out in the lease. That should help the OP sort the problem.

Edited January 15, 2022 by Aequitas

[stu007]

@ Aequitas you need to read the other forum correctly as nowhere does it states it is a Lease yes they state AST and 5 years but nowhere do they state it is a Lease that is your opinion which is wrong.

 

This Landlord has Signed an Agreement with Mears Group to house Asylum Seeker in there Property which the AST has been correctly signed by Mears Group as the Asylum Seekers can't sign that AST it must be the Provider Mears Group

 

Mears Group have the Contract from the Home Office to provide Accommodation to Asylum Seekers.

 

_____________________________________________________________________________________________________________________

 

What we all need to take into account here is this is to do with Mears Ltd who have a Government Contract to house Asylum Seekers.

 

As for the Agreement being Signed by Mears Ltd as the Tenant IMO that would be correct as the actual tenant placed into that property are Asylum Seeker (note: they may be going through the process application to be granted leave to stay in the UK) so they (the actual tenants Asylum Seekers) cannot sign that Agreement it has to be signed by Mears Ltd as they have been placed in that Accommodation under the Government Contract Mears Ltd has with the Home Office.

 

I hope that makes this a bit clearer to understand why Mears Ltd has Signed as Tenant and not the actual tenants (Asylum Seeker) stay in the property.

 

____________________________________________________________________________________________________________________

 

I ask again have you asked the person you employed to inspect and repair the roof to provided you with a letter of their inspection of the roof and the work carried out to repair the roof?

 

___________________________________________________________________________________________________________________

 

As for the Section 8 Notice I still think what I said in post#21 you need to have a good read of as I am airing caution on this

and you still have not explained on which grounds you would use and your reason?

 

___________________________________________________________________________________________________________________

 

I also think before you decide this you need to write to Mears Ltd.

 

Dear Mears Ltd

 

Agreement Reference:  (Insert Reference Number)

 

I now require full Clarification why to date you are withholding Rent Payments to myself as the Landlord of the Property at (insert full Address) and require the following:

 

1.  Clarification why you are withholding these Rents Payment and where it states this in the Agreement I have Signed with yourselves and also the Tenancy Agreement for this property signed by yourselves?

 

2. Clarification why I was not notified of any Roof Repairs being carried out to my Property without my knowledge or consent by Mears Ltd.

 

3. Clarification of what quotes were obtained for these works and to be provided with copies of these.

 

4. Clarification of the Name of the Contractor used to carry out these repairs and a copy of the Final Invoice from this Contractor.

 

5. Clarification If a Scaffolder was employed of that Contractors name and a copy of their Invoice for the works.

 

6. Clarification of the Asbestos Survey Contractors Name and to be provided with copies of the Invoice.

 

7. Clarification of the Party Wall Agreement and to be provided with Copies and Invoice>

 

________________________________________________________________________________________________________________________

 

I think it would also be helpful if you could upload copies of the Agreements you have with Mears in PDF Format redacted. (click on upload to see how to do it)

 

1. The actual Agreement that you as Landlord Signed with Mears to deal with your Property.

 

2. The Actual Tenancy Agreement for your property that Mears has signed as Tenant.

 

A couple of links for you one confirms Home Office gave contract to Mears Group the other is the Home Office complaints procedure in case you need it:

 

New asylum accommodation contracts awarded - GOV.UK

WWW.GOV.UK

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The Home Office has awarded New Asylum Accommodation and Support Services Contracts (AASC) following an open and fair procurement exercise.

 

 

Complaints procedure - Home Office - GOV.UK

WWW.GOV.UK

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If you are dissatisfied with the service you receive from us, you can contact the Home Office.

 

 

 

 

 

 

 

[Aequitas]

7 hours ago, stu007 said:

@ Aequitas you need to read the other forum correctly as nowhere does it states it is a Lease yes they state AST and 5 years but nowhere do they state it is a Lease that is your opinion which is wrong. the Home Office.

 

There is a confusion of terminology here. When it comes to documents granting tenancies they are either described as "tenancy agreements" or "leases". However, though the former is generally used to describe an instrument granting a tenancy for three years or less and the latter to describe an instrument made by deed granting a tenancy for more than three years, they are not "terms of art", that is words or phrases with set meanings. The word "lease", though perhaps primarily used to refer to a document. also refers to an interest in land so that "lease" and "tenancy" mean the same thing, that is a leasehold interest.

 

Any purported grant of a tenancy for a term exceeding three years is void as provided by section 52(1) of the Law of Property Act 1925:

 

All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed.

 

By way of clarification:

 

Section 205(1)(ii) says:

 

“Conveyance” includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of an interest therein by any instrument, except a will

 

Section 52(2) says:

 

This section does not apply to [...] leases or tenancies or other assurances not required by law to be made in writing

 

That is clarified by section 54(2) which says:

 

Nothing in the foregoing provisions of this Part of this Act shall affect the creation by parol of leases taking effect in possession for a term not exceeding three years (whether or not the lessee is given power to extend the term) at the best rent which can be reasonably obtained without taking a fine

 

(For your information I post as Lawcruncher on LLZ)

 

[stu007]

@ Aequitas

 

The one confused seems to be yourself as the OP if you look at this thread and then the other Forum Does Not have a 'LEASE' you need to read both very carefully rather than jump to a conclusion.

 

Oh and the Law you refer to is nothing to do with this matter.

 

Let my clarify it for you:

 

1. The OP has signed an Agreement with Mear Group for the 5 years in which Mear Group have a Home Office Contract to house Asylum Seekers. (This is not a Lease but a Signed Agreement between the Landlord and Mear Group the exact same as a Letting Agent would do)

 

2.  The Asylum Seekers were then placed in the Landlord Property under an AST which is an Assured Shorthold Tenancy (AST) by Mear Group which are dealing with the OP (landlords) property and as Asylum Seekers can't sign that AST due to their status this is then done by Mear Group that is why under 'Tenant' in that AST it states 'Mear Group'. Again this is not a Lease but an AST.

 

3. To be clear the OP has 2 Agreements in place at present for this property (a) The 5 year Agreement they Signed with Mear Group who have the Home Office Contract to house Asylum Seeker which is not a Lease. (b) the Assured Shorthold Tenancy Agreement (AST) after Mears Group placed Asylum Seeker into the OPs (Landlords) Property which as the Provider they signed the AST under 'Tenant' as the Asylum Seekers can't due to their status again this is not a Lease.

 

You seems to be confusing that the AST is for 5 years when the OP has never stated this on either Forum, they pointed out on that other forum in post#27 and I quote:

 

Quote

I know I was sold on the fact it was a 5 year full repair tenancy. They would pay for everything aside from roof repairs.

 

The above quote is nothing to do with the AST Signed by Mears Group for the Asylum Seekers placed into that property but is in fact to do with the Agreement the OP (Landlord) signed with Mears Group to let/Maintain their Property for 5 Years the same as a Letting Agency would have in place with a Landlord.

 

The issue here is not the AST or those residing in that property under that AST Agreement but the issue is to do with the 5 year Agreement that the OP signed with Mears Group under the Home Office Contract to let their property and the repairs they carried out to the roof costing £1800 - £1900 which the OP had no knowledge/never gave consent to carry out.

 

This is why is you fully read my post#36 properly I have asked the OP to post up both the AST & Agreement Signed with Mears Group Redacted to save this confusion as we really need to see both of those and the wording dur to this issue with the roof repairs carried out by Mears Group and that Invoice to the OP ( Landlord) got.

[Aequitas]

I have a text book entitled "Introduction to Land Law" published by Butterworths, a recognised legal publisher. In an introductory chapter under "Terminology" it says:

 

As regards the granting of a lease, the term "to demise" is sometimes used as an alternative to "to lease". Similarly, as regards the interest granted, a lease is sometimes termed a "demise". A lease may also be termed a "tenancy". Generally "tenancy" is used in connection with a shorter period (e.g. weekly or monthly tenancy); "lease" for a longer period (e.g. a seven-year lease). But a lease, a demise and a (leasehold as opposed to feudal) tenancy are in law all the same creature.

 

The first paragraph of a later chapter headed "Leases" - note "leases" not "tenancies" -  says:

 

L grants T the right to occupy land in return for an agreed sum of money. Provided that certain conditions are satisfied, the right which L has granted T is a lease.

 

I think the above makes it clear that, when talking about the interest granted, a tenancy and a lease are the same thing. If you are not convinced, Section 52(2)(d) refers to both leases and tenancies. So, even if you insist that the OP granted a tenancy and not a lease, it must apply.

 

 

[axil23]

It states lease on top of the contract rather then AST. 

[axil23]

6 hours ago, stu007 said:

2.  The Asylum Seekers were then placed in the Landlord Property under an AST which is an Assured Shorthold Tenancy (AST) by Mear Group which are dealing with the OP (landlords) property and as Asylum Seekers can't sign that AST due to their status this is then done by Mear Group that is why under 'Tenant' in that AST it states 'Mear Group'. Again this is not a Lease but an AST.

 

3. To be clear the OP has 2 Agreements in place at present for this property (a) The 5 year Agreement they Signed with Mear Group who have the Home Office Contract to house Asylum Seeker which is not a Lease. (b) the Assured Shorthold Tenancy Agreement (AST) after Mears Group placed Asylum Seeker into the OPs (Landlords) Property which as the Provider they signed the AST under 'Tenant' as the Asylum Seekers can't due to their status again this is not a Lease.

 

 

I have not issued a AST to anyone else in the property. Only contract I have signed is with the the Mears who state they will be putting Asylum seekers in the property. Are you suggesting that Mears then make a separate contract with the tenant and sign it as the landlord themselves? 

 

It says this in the contract

 

Quote

"Occupant(s)"
any person(s) (including, without limitation, Asylum Seekers) permitted by the Tenant to reside at the Property

 

[Aequitas]

Two points of clarification for axi123:

 

Whether a tenancy is an AST depends entirely on whether the statutory conditions are met. You cannot make a tenancy an AST by saying in the tenancy agreement that it is an AST. Equally, a tenancy can be an AST without the tenancy agreement saying it is, though it is possible to provide for a tenancy not be an AST by including in it a statement to the effect that it is not an AST. The agreement with Mears could not have led to an AST because the tenant under an AST must be an individual.

 

If A grants a tenancy to B, B can grant a tenancy of the same premises or part of them to C so long as the term is shorter than the term granted to B. the second tenancy is subtenancy.

[axil23]

Thank you. Will keep you posted. 

[AndyOrch]

Lets not get bogged down here on what type of agreement and with who......they cant withhold rent for whatever reason ...no agreement would ever be drafted that way.

 

Any works and dispute are a separate matter and cannot be offset by withholding rent.

[stu007]

Hi axil23

 

I have to agree with Andyorch 

 

They cannot withhold they Rent Payment due to you the Landlord for any reason nor can they do so with your dispute over the Roof Repairs carried out without you consent/knowledge then been given a bill for £1800-£1900.

 

The Roof Repairs Dispute as said is completely separate issue so they should not withhold rent.

 

Have you asked the person you employed to inspect and repair the roof to provided you with a letter of their inspection of the roof and the work carried out to repair the roof?

 

Have you wrote to Mears and asked clarification on the following:

 

I now require full Clarification why to date you are withholding Rent Payments to myself as the Landlord of the Property at (insert full Address) and require the following:

 

1.  Clarification why you are withholding these Rents Payment and where it states this in the Agreement I have Signed with yourselves and also the Tenancy Agreement for this property signed by yourselves?

 

2. Clarification why I was not notified of any Roof Repairs being carried out to my Property without my knowledge or consent by Mears Ltd.

 

3. Clarification of what quotes were obtained for these works and to be provided with copies of these.

 

4. Clarification of the Name of the Contractor used to carry out these repairs and a copy of the Final Invoice from this Contractor.

 

5. Clarification If a Scaffolder was employed of that Contractors name and a copy of their Invoice for the works.

 

6. Clarification of the Asbestos Survey Contractors Name and to be provided with copies of the Invoice.

 

7. Clarification of the Party Wall Agreement and to be provided with Copies and Invoice.

As I previously asked could you post up a Redacted copy (in PDF Format)  of the Agreement you have Signed with Mears

[Aequitas]

The status of the tenancy, whilst not strictly relevant to the rent problem, is otherwise relevant. If the grant of the tenancy was void it does rather pull the carpet from under Mears' feet.

 

Legal opinion is divided on what the position is on the purported grant of a tenancy for more than three years not made by deed. The possibilities advanced include:

 

· There is no tenancy at all.

·  If the tenant goes into possession there is a periodic tenancy. (There is a question mark in this case as to whether Mears are in possession.      Possession includes collecting rent from a subtenant, but is it not clear if Mears grant tenancies to the asylum seekers.)

· The purported grant operates as an agreement to grant a tenancy.

 

Whatever the position, Mears have a bit of a problem.

 

Apart from the above, Axil23 does not want to be asking any questions as he may give a hostage to fortune by implying that he agrees he owes something. He should write to Mears saying:

 

1. The agreement is void to grant a term of five years as it was not made by deed.

2. I do not owe you anything as, apart from anything else, you have not followed the procedure set out in the agreement.

3. If you do not pay the outstanding rent forthwith I shall terminate the arrangement.

 

Nothing else needs to be said. Important rule in correspondence: Never say more than you need to.

[axil23]

I have already sent them a notice before action asking similar questions  to what is posted by Stu above. Given them 14 days to respond. What should my next step be? Ideally I don't want to get them out as they pay their rent fine otherwise. Should it be a MCOL for the rent? 

[stu007]

Hi

 

It a bit late now as you have sent them a letter before action but I would have waited for their response to those questions especially number 1. and to clarify for you asking these question would not put you in the position of Mears implying that you agree the money is owed as this money for the Roof Repairs is in Dispute with yourself (Landlord).

 

I would wait and see what response you get from Mears.

 

Also have a good look at Mears website and see what other bodies they are registered with

 

In the mean time something else to consider sending Mears is a Subject Access Request (SAR) asking for 'ALL DATA' that simple phrase covers all data they hold whatever format they hold it in whether it be recorded calls, written, emails etc.

 

They then have 30 Calendar Days to respond to your SAR Request, this time limit only starts once they acknowledge your SAR Request.

 

If they completely ignore your SAR Request then you make a complaint to the Information Commissioners Office (ICO):

 

Your right of access

ICO.ORG.UK

 

 

What to do if the organisation does not respond or you are dissatisfied with the outcome

ICO.ORG.UK

 

Make sure and put it in writing and get Free Proof of Posting from Post Office

 

Note: a SAR is now Free there should be no cost involved due to the DPA 2018 & GDPR 2018

 

I know I have asked a couple of times now but is there any reason why you can't post up a Redacted copy of that Agreement with Mears (in PDF Format)?

 

 

[Aequitas]

If you have already written imposing a time limit then wait for a reply or until the time limit has expired. If they reply and concede then all is well. If they do not reply or maintain their position, write and say that since writing your previous letter you have taken legal advice and been informed that the agreement is void to grant a term of five years and otherwise as suggested in post 46.

[stu007]

Hi

 

I would air caution on the above advice in post#49 in the wording of a letter. (note unless you have actually seen a Solicitor and been advised such)

 

We CAG have NOT given LEGAL ADVICE and would never state/advise anyone to put that in a Letter as we are a Self Help Forum.