Girlfriend has "Common Law Tenancy"

arambol

My girlfriend is 4 months into a 12 month lease and is about to give notice and move in with me. There is a 6 month break clause so this should be fine.

However I was just reading through her tenancy agreement and I noticed it was a "Common Law Tenancy Agreement".

Is this different to an AST? What are the differences and should it make a difference? She though she had a standard AST as it was through a high street lettings agent.

Thanks

Premier_2

What is a common law tenancy agreement?
This is a Tenancy Agreement between an individual or individuals and a Landlord which is not an Assured Shorthold Tenacy Agreement

http://www.buytoletadvisors.co.uk/faqs/faqs_main.htm#six

It could be used where the annual rent is in excess of £25k or where there is a resident Landlord (but not a lodger's agreement). Most of the advice given on this forum relates to an ASTA and may not apply to a Common Law Tenancy Agreement.

arambol

Ahhh, thanks Premier. I think you've hit the nail on the head. :T

Her rent is £2123 p.c.m = £25 476 p.a. so yes it's above the threshold.

Oddly then the supplied agreement for our new place is just described as "The Tenancy". There's no mention of AST or Common Law etc.

It's just a private landlords 1 bed flat and we are dealing with it through Foxtons.

Again the rent will be over £25,000 p.a. so is there anything I should be aware of or look out for. I am only used to dealing with AST's.

Than

Premier_2

Some further infirmation for you:

Common law tenancies are any tenancies that are not regulated by statutory law (that is, laws issued by Parliament or the Scottish Parliament). This means the tenant's rights depend mainly on the terms in the tenancy agreement. Students who are joint tenants and who are living in properties with a total annual rent of over £25,000 fall under common law tenancies.

Security of tenure and statutory continuation of the tenancy are the other key differences between Assured tenancies (including Shorthold Assured Tenancies) and Common Law Tenancies.

In an Assured Shorthold Tenancy a landlord is entitled to a possession order at the end of a tenancy provided the landlord has served 2 months notice. The landlord would otherwise have to prove one of the prescribed reasons in Housing Act 1988 legislation if trying to evict a tenant before the end of their tenancy.

In Common Law tenancies, the landlord is entitled to possession of the property at the end of the tenancy, and does not have to serve notice to quit to bring the tenancy to an end. During the tenancy the landlord can bring the tenancy to an end on any grounds specified in the tenancy agreement; the landlord is not restricted to the prescribed grounds set out in Schedule 2 of the Housing Act. Residential common law tenants still have some statutory protection: they cannot be evicted against their will unless their landlord obtains a court order.

Common Law Tenants also still have the protections of the unfair terms in Consumer Contracts Regulations 1999 where they have entered into a standard form tenancy agreement, and many other statutory provisions, such as the landlord’s repairing obligations in the Landlord and Tenants Act 1985, also apply.

I guess the main issue that would probably affect your girlfiend now is the fact that any security deposit paid would probably not be held under any protection scheme as there is no requirement for it to be so.

As rental values continue to increase, unless the law is revised, many more tenants will soon fall outside the safety that the ASTA offer.

arambol

Very interesting info. Thanks.

So with our new tenancy with Foxton's it can't be an AST as the rent is again above 25k p.a.

However in the tenancy agreement it states that the tenancy can be ended:

"if at any time .... if any of the the grounds set out in Schedule 2 of the Housing Act 1988 (as amended) being grounds 1,2,8,10,11,12,13,14,15 and 17 are made out".

Surely with a rent of 25k + there should be no mention of Schedule 2 if I understand correctly? Have Foxton's got them mixed up?

Thing is the "Deposit" is to be held by Foxton's as a "stakeholder" so this would suggest it is a Common Law Tenancy as there is no deposit protection scheme.

These seem like conflicting clauses don't they?

What do you think?

Premier_2

It wouldn't surprise me that Foxtons are making it up as they go along.

To be fair I don't actually know them, but I have seen them mentioned on this site a few times (none complimentary), I remember the BBC exposing them for something or other, and they seem to be involved in quite a few legal cases. A quick google will indicate a number of unhappy customers too.

You are correct that where the rent in over £25k, it cannot be an ASTA. Perhaps what Foxtons are trying to do is use the grounds specified for an ASTA as the same grounds to recover the property in your TA - whether such clause would hold up in court I don't know but at least it seems a fair way to construct the TA - their rights to possession being then no greater than if it actually were an ASTA.

I think because it's not an ASTA, none of the 3 schemes would allow the deposit to be protected, but nonetheless, it is quite normal for them to request one so don't read anything too bad into that - it just means it's back to the original way of getting a deposit back in case of any dispute at the end of the tenancy i.e. in court.

arambol

So it's probably best for me to not mention the conflicting clauses.

Hopefully I won't have any problems but if the tenancy drawn up by Foxton's is flawed then maybe it may help me rather than hinder me.

Thanks, make much more sense now.

tbs624

Premier wrote: »

Some further infirmation for you:

Common law tenancies are any tenancies that are not regulated by statutory law (that is, laws issued by Parliament or the Scottish Parliament). This means the tenant's rights depend mainly on the terms in the tenancy agreement. Students who are joint tenants and who are living in properties with a total annual rent of over £25,000 fall under common law tenancies.

Security of tenure and statutory continuation of the tenancy are the other key differences between Assured tenancies (including Shorthold Assured Tenancies) and Common Law Tenancies.

In an Assured Shorthold Tenancy a landlord is entitled to a possession order at the end of a tenancy provided the landlord has served 2 months notice. The landlord would otherwise have to prove one of the prescribed reasons in Housing Act 1988 legislation if trying to evict a tenant before the end of their tenancy.

In Common Law tenancies, the landlord is entitled to possession of the property at the end of the tenancy, and does not have to serve notice to quit to bring the tenancy to an end. During the tenancy the landlord can bring the tenancy to an end on any grounds specified in the tenancy agreement; the landlord is not restricted to the prescribed grounds set out in Schedule 2 of the Housing Act. Residential common law tenants still have some statutory protection: they cannot be evicted against their will unless their landlord obtains a court order.

Common Law Tenants also still have the protections of the unfair terms in Consumer Contracts Regulations 1999 where they have entered into a standard form tenancy agreement, and many other statutory provisions, such as the landlord’s repairing obligations in the Landlord and Tenants Act 1985, also apply.

I guess the main issue that would probably affect your girlfiend now is the fact that any security deposit paid would probably not be held under any protection scheme as there is no requirement for it to be so.

As rental values continue to increase, unless the law is revised, many more tenants will soon fall outside the safety that the ASTA offer.

Useful info but if you quote verbatim from elsewhere then the source should be credited :
Ref : Tenancy Deposit Protection: The £25,000 Problem
resource.nusonline.co.uk/media/resource/25000update.doc