Tenants rights to see a contract before signing?

lampard

G_M wrote: »

The LL should provide two copies of the contract, each of which should be signed by both parties. Tenant and LL then keep one each.

S21? Invalid if issued before the contract has been signed and the deposit has been protected.

Ah so I should actually keep my gaurd up after i sign the contract and the deposited is paid!

Am I within my rights to refuse to sign an S21? Or is it something I dont have a choice in, and its just served and thats it?

BitterAndTwisted

You don't have a choice. The Notice just signifies the landlord's intention to end the tenancy

tbs624

lampard wrote: »

Ah so I should actually keep my gaurd up after i sign the contract and the deposited is paid!

Am I within my rights to refuse to sign an S21? Or is it something I dont have a choice in, and its just served and thats it?

It's not necessary for a T to sign an acknowledgement for a s21 Notice - the LL has to be able to show that s/he has served it correctly but that can be done by other means, and is of course the LLs concern, not yours.

Experienced LLs send the s21 out a couple of days after the tenancy agreement has been signed, and any deposit has been scheme registered, so that it is *clear* that it was served after both of these events.

Search this forum for "sword of damocles" and FrankLee's many posts on the topic.

What the service of a s21 means is that if you don't move out by your Fixed Term expiry date then the LL can proceed straight to court for eviction:it's a safeguard more than a real statement of intent in many cases.

In practice, if there is a reliable T in place, many LLs are happy for the tenancy to continue either as a new FT, or as a Statutory Periodic running on month to month( if rent paid monthly)

I would alter B&T's wording slightly to say that a s21 notifies the LLs ability to bring the tenancy to an end via the courts, if they want the property back and you haven't shifted yourself. Many s21s are served routinely as a precaution.

theartfullodger

Re lampard's comment

I will read the act now anyway, is there any other acts that may be useful?

Herewith a copy of my personal list of interesting acts... but don't trust this list as the true source, google the act & check (statutelaw..) the revised version of each act...

Relevant Acts, relevant issues..

“Distress for Rent Act 1737”
18 Tenants holding after the time they notify for quitting, to pay double rent
And whereas great inconveniences have happened and may happen to landlords whose tenants have power to determine their leases, by giving notice to quit the premisses by them holden, and yet refusing to deliver up the possession when the landlord hath agreed with another tenant for the same: from and after the said twenty fourth day of June one thousand seven hundred and thirty eight, in case any tenant or tenants shall give notice of his, her, or their intention to quit the premisses by him, her, or them holden, at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the time in such notice contained, that then the said tenant or tenants, his, her, or their executors or administrators, shall from thenceforward pay to the landlord or landlords, lessor or lessors, double the rent or sum which he, she, or they should otherwise have paid, to be levied, sued for, and recovered at the same times and in the same manner as the single rent or sum, before the giving such notice, could be levied, sued for, or recovered; and such double rent or sum shall continue to be paid during all the time such tenant or tenants shall continue in possession as aforesaid.

“Law of Property Act 1925”
section 51 (1), (2), 54(2)
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.

“Conveyance” is defined by section 205 (1) (ii) of the Act as including, amongst other things, “lease”.

Section 51 (2) sets out the exceptions to section 51 (1) of the Act and includes in paragraph (d):

leases or tenancies or other assurances not required by law to be made in writing.

Finally we go to section 54 (2) of the Act 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.

The effect of the above is that:

1. You cannot create a tenancy for a term exceeding three years except by deed; and
2. Any term for a tenancy of three years or less (at the best rent etc.) not created by deed can only be created by the tenant going into possession.

An entirely separate question is whether you can have a contract to create a tenancy of three years or less (at the best rent etc.). You certainly can and the agreement can be oral or in writing. Like any other contract it is enforceable as soon as made.

So, the effect of both parties entering into a tenancy agreement (whether oral or written and whether for an AST or any other kind of tenancy) is that both parties are bound, that is the landlord is bound to grant the tenancy and the tenant is bound to take it. However, no tenancy arises until the tenant goes into possession. This explains why tenancy agreements are called tenancy agreements and not leases. In legal terms they are executory agreements, that is agreements under which all or some of the parties' obligations remain to be performed.

For the record we can consider the position if a tenancy agreement is executed as a deed. Strictly, a tenancy agreement ought to be just that – an agreement by the landlord to grant and the tenant to take a tenancy. Accordingly, if so phrased and executed as a deed the tenancy will still not start until the tenant goes into occupation. However, if the wording is such that the landlord actually grants the tenancy, then the tenancy starts as soon as the deed is completed or, if later, the day on which the agreement says it starts and irrespective of whether the tenant take possession.
Law of Property Act 1925 (c.20) - Section 196 - Regulations respecting notices.

sections 52 to 54 of the Law of Property Act 1925 ---- when there is a tenancy agreement for a term of three years or less, the tenancy does not start until the tenant goes into occupation.
“Allotments Act 1950”
Section 12
12 Abolition of contractual restrictions on keeping hens and rabbits

(1)Notwithstanding any provision to the contrary in any lease or tenancy or in any covenant, contract or undertaking relating to the use to be made of any land, it shall be lawful for the occupier of any land to keep, otherwise than by way of trade or business, hens or rabbits in any place on the land and to erect or place and maintain such buildings or structures on the land as reasonably necessary for that purpose:

Provided that nothing in this subsection shall authorise any hens or rabbits to be kept in such a place or in such a manner as to be prejudicial to health or a nuisance or affect the operation of any enactment.
“Accommodation Agencies Act 1953”

Illegal fees etc. by agencies..
(1)Subject to the provisions of this section, any person who,
(a)demands or accepts payment of any sum of money in consideration of registering, or undertaking to register, the name or requirements of any person seeking the tenancy of a house;
(b)demands or accepts payment of any sum of money in consideration of supplying, or undertaking to supply, to any person addresses or other particulars of houses to let; or
(c)issues any advertisement, list or other document describing any house as being to let without the authority of the owner of the house or his agent,
shall be guilty of an offence.
“Torts (Interference with Goods) Act 1977”
Stuff left behind

“Protection from Eviction Act 1977”
Section 1
Unlawful eviction and harassment
s.1(3A) (as was amended by the Housing Act 1988) which states:
"the landlord of a residential occupier or an agent of the landlord shall be guilty of an offence if he does acts likely to interfere with the peace or comfort of the residential occupier or members of his household."
The individual carrying out any inspection will be personally criminally liable, and could face arrest by the police on the above charge. Likewise the agency as a corporate entity may face criminal investigation.
Also any attempt to enter the premises without your consent will treated as, as a matter of civil law:
a. trespass; and
b. a breach of the quiet enjoyment clause under the tenancy agreement.
Section 5
- NTQ - At least 4 weeks, in writing

"Landlord and Tenant Act 1985"
"Section 1"
Full name & Address of Landlord
If the tenant does not receive a reply within the 21 day period, s/he can inform the Tenancy Relations Officer (TRO) at the local authority. The TRO will investigate the case and can prosecute the person who has not provided the information.
Section 4
Rent books

Section 8 Implied terms as to fitness for human habitation
(1)In a contract to which this section applies for the letting of a house for human habitation there is implied, notwithstanding any stipulation to the contrary—
(a)a condition that the house is fit for human habitation at the commencement of the tenancy, and
(b)an undertaking that the house will be kept by the landlord fit for human habitation during the tenancy.
(2)The landlord, or a person authorised by him in writing, may at reasonable times of the day, on giving 24 hours’ notice in writing to the tenant or occupier, enter premises to which this section applies for the purpose of viewing their state and condition.
Section 11
Repairing obligations, short leases. In particular sub-clause (6)

(6)In a lease in which the lessor’s repairing covenant is implied there is also implied a covenant by the lessee that the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours’ notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair.

“Landlord & Tenant Act 1987“
Section 48
Address for serving notices...& on change of ownership.. No address in E&W then rent is not due...
Section 49 – Can serve notices to LL's last know address.
Section 54 - Notices
(1)Any notice required or authorised to be served under this Act—
(a)shall be in writing; and
(b)may be sent by post.

“Housing Act 1988
Section 5a
Six months before LL can chuck out T...
(5) Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than—
(a) in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and
(b) in the case of a replacement tenancy, six months after the beginning of the original tenancy.

Section 5, 3(d)
- Period (of periodic) is that for which rent was last payable under the fixed term. (ie Pay 12 months rent in 1 go – period is 12 months..) - this seems open to debate ...
Section 8
Notice for proceedings for possession default (2 months if monthly) (Periodic & Fixed)
Section 13
Change of rent, Form 4b
Section 20 –
(1) Subject to subsection (3) below, an assured shorthold tenancy is an assured tenancy—
(a) which is a fixed term tenancy granted for a term certain of not less than six months; and
(b) in respect of which there is no power for the landlord to determine the tenancy at any time earlier than six months from the beginning of the tenancy; and

Section 21
Recovery of possession on expiry or termination of assured shorthold tenancy
NB re serving S21 on day tenancy etc is signed – from lawcruncher, LLZ..
1. The combined effect of sections 52 to 54 of the Law of Property Act 1925 is (ignoring detail that need not detain us) that when there is a tenancy agreement for a term of three years or less, the tenancy does not start until the tenant goes into occupation. Until a tenancy starts there is neither landlord nor tenant.

2. Section 21 requires the notice to be served by the landlord on the tenant. If there is neither landlord nor tenant when the notice is served the notice must clearly be invalid. Any doubt as to whether "landlord/tenant" includes "person who is to be the landlord/tenant" is removed by referring to section 20(2)(c) where that phrase is used to make it clear that notice is to be served before the tenancy begins. Since the sections use "landlord/tenant" in one context and "person who is to be the landlord/tenant" in another there has to be a difference in meaning. The difference is that "landlord/tenant" does not include "person who is to be the landlord/tenant".

It would be nice to be able to get all the paperwork done and dusted at the same time, and in particular to hold a receipted copy of a section 21 notice. However, it is not possible without risking that the tenant takes the point that the section 21 notice was served too early. Since there is no great rush to serve a section 21 notice there is no point in running the risk.

Section 29 (as revised) Harassment (Quiet enjoyment)
29.
Offences of harassment.
— (1) In section 1 of the 1977 Act (unlawful eviction and harassment of occupier), with respect to acts done after the commencement of this Act, subsection (3) shall have effect with the substitution, for the word “calculated”, of the word “likely”.
(2) After that subsection there shall be inserted the following subsections—
"(3A) Subject to subsection (3B) below, the landlord of a residential occupier or an agent of the landlord shall be guilty of an offence if—
(a)
he does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or
(b)
he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence,
and (in either case) he knows, or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises.
(3B) A person shall not be guilty of an offence under subsection (3A) above if he proves that he had reasonable grounds for doing the acts or withdrawing or withholding the services in question.
(3C) In subsection (3A) above “landlord”, in relation to a residential occupier of any premises, means the person who, but for—
(a)
the residential occupier’s right to remain in occupation of the premises, or
(b)
a restriction on the person’s right to recover possession of the premises,
would be entitled to occupation of the premises and any superior landlord under whom that person derives title."

Section 5(3)d.. [5 is “Security of Tenure”]
The statutory periodic tenancy (SPT) is, ahem, statutory- so the 1988 Act defines its ambit.
Period is that of rent(payment). If the fixed-term rent was monthly, so is the SPT; each month is a new tenancy period. Obviously, it ends monthly too. T can therefore leave at any month end without necessarily giving any notice to L.
L's termination rights, however, are just the same as during fixed term: s.8 or s.21, as appropriate.

Tolerated Trespass
The term “tolerated trespasser” was coined by Lord Browne-Wilkinson in a House of Lords case (Burrows v Brent LBC [1996]) - subject to possession order but omplying with terms of “suspended possession order”. Now no longer in operation (some case law..)


[Section 2 (3) of the Law of Property (Miscellaneous Provisions) Act 1989]

In the case of a deed the signatory must sign in the presence of the witness:

An instrument is validly executed as a deed by an individual if, and only if—
(a) it is signed—
(i) by him in the presence of a witness who attests the signature

Protection from Harassment Act 1997

“Unfair Terms in Consumer Contracts Regulations 1999”
Section
- OFT Guidance of unfair terms in tenancies, OFT356.

“Housing Act 2004”
Section 1
HSRRSS (or whatever)

Section 213(1)
Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.

Section 213(6) & 214
Deposit within 14 days & 3xfine.
Section 215
S21 not valid unless deposit deposited & prescribed info provided....
can't find source but,
The amount of the deposit should be a maximum of two months' rent. If the deposit is more than this amount it could in theory count as a premium and may give the tenant an automatic right to assign the lease without the landlord's consent.
This eventuality of assignment should be precluded by the terms of the tenancy agreement anyway, but as a precaution the deposit should be kept below two months' rent.
One month's rent is a common figure, though some landlords avoid this as it could encourage the tenant to substitute the deposit for the last month's rent - 5 or 6 weeks may be acceptable. (LLZ)


“The Housing (Tenancy Deposits) (Prescribed Information) Order 2007”
Housing and Regeneration Act 2008:
COMMENCEMENT OF SECTION
315: CIRCUMSTANCES WHEN LOCAL CONNECTION MAY BE ESTABLISHED
UNDER SECTION 199 OF THE HOUSING ACT 1996
. The effect of the amendments is that someone serving in the Armed Forces will be
able to establish a local connection with a district through residence of choice or
employment there, in the same way as a civilian person.

Schedule 11 (6, 2) Security of tenure on assured tenancies continues ...
“(1) An assured tenancy cannot be brought to an end by the landlord except by—
(i) an order of the court for possession of the dwelling-house under section 7 or 21, and
(ii) the execution of the order

Grounds for Possession - Assured Shorthold Tenancies

The Housing Act 1988 as amended by the Housing Act 1996 lays down certain circumstances (grounds) under which a landlord may successfully apply to court for possession.

The grounds for possession fall into two categories: mandatory, where the tenant will definitely be ordered to leave if the landlord can prove breach of contract, and discretionary, where the court can decide one way or the other.

These grounds for possession apply to tenancies entered into after 15 January 1989. The terms of your tenancy agreement must make provision for termination on these grounds.

Mandatory Grounds for Possession:
But note HA 1988.. Section 6
(6)The court shall not make an order for possession of a dwelling-house to take effect at a time when it is let on an assured fixed term tenancy unless—
(a) the ground for possession is Ground 2 or Ground 8 in Part I of Schedule 2 to this Act or any of the grounds in Part II of that Schedule, other than Ground 9 or Ground 16; and
(b) the terms of the tenancy make provision for it to be brought to an end on the ground in question (whether that provision takes the form of a provision for re-entry, for forfeiture, for determination by notice or otherwise).
.. so only a few grounds apply during fixed term of tenancy.....

Ground 1 - This ground can be used where a landlord (or his spouse) has occupied the dwelling as his only or principle home at some time, and having given notice of his intention to return, now wishes to do so. Successors in title may also use this ground provided they did not purchase the dwelling.
Ground 2 - This ground is used by a mortgagee wishing to gain vacant possession in order to exercise a power of sale. Notice will need to have been given to the tenant. The mortgage must have been taken out before the tenancy began and the the tenant warned about this contingency within the tenancy agreement.
Ground 3 - This ground applies to premises which within the last 12 months have been the used as holiday lets and have currently been let on a fixed term of up to 8 months, usually for the winter period. Notice must have been served that the property is to be returned to holiday let use, usually for the summer period.
Ground 4 - This ground applies to student accommodation owned by educational institutions. Whilst students are normally licensees, this ground applies where the institution has let for a fixed term of up to 12 months.
Ground 5 - This ground applies to properties owned by religious bodies, where, for example, the property was occupied by one of their ministers and is now required for another.
Ground 6 - This ground is similar to one established in commercial leases (Landlord and Tenant Act 1954) where recovery of possession is allowed where a landlord wishes to demolished or substantial reconstruct or redevelop the building.
Ground 7 - This ground concerns inherited or succession rights rights to a tenancy. It allows the landlord to claim possession where proceedings are started within one-year of the tenant's death (or later if the court allows) irrespective of whether rent was accepted or not. The ground cannot be used against a surviving spouse.
Ground 8 - This ground has been changed by the Housing Act 1996 and concerns arrears of rent. Arrears must exceed 8 weeks if the rent is paid weekly or fortnightly, 2 months if paid monthly, one full quarter if paid quarterly or 3 months if paid yearly. The maximum arrears in each case must exist both at the notice of proceedings and at the hearing itself. The ground must be clearly stated so that the tenant knows what he is responding to.

Discretionary Grounds for Possession:

Ground 9 - The landlord seeks possession because he has offered the tenant suitable alternative accommodation. The tenancy must be on the same basis, for example if the old one was furnished, the new one must be, and the landlord can be asked for removal expenses. If the tenant contests it is often on the basis of what is suitable alternative accommodation.
Ground 10 - This ground covers arrears of rent being in arrears less than the times specified in mandatory
ground 8. This ground also, with the consent of the court, allows rent recover by distress.
Ground 11 - This ground covers persistent delays in rent payment. However, being a discretionary ground the court will take into account factors outside the tenant's control, for example, delays in housing benefit payments
Ground 12 - This ground covers tenant's in breach of their contractual (lease or tenancy) agreement conditions, other than rent payments.
Ground 13 - This ground covers waste, neglect or default concerning damage to the tenant's accommodation or common parts. This ground also covers the acts of sub-tenants, lodgers, tenants family or visitors.
Ground 14 - The landlord can seek possession where a tenant, sub-tenant, lodger or visitor is causing a nuisance to neighbours or is using the property for illegal or immoral purposes. The ground also covers cases of domestic violence where one partner has left and is unlikely to return.
Ground 15 - This ground covers cases where landlord's furniture has been ill-treated.
Ground 16 - This ground covers cases where the tenant was an employee of the landlord and has since left his employ. This case is rarely used as most resident employees are licensees and therefore not covered by the housing acts.
Ground 17 - This final ground was introduced by the Housing Act 1996 and covers cases where the tenancy has been created as a result of a false statement knowingly having been made by the tenant or someone acting on his behalf. It is worth noting here the importance of a Tenancy Application which seeks factual information from the tenant. See also Tenant Screening.

There is also one other overriding reason for seeking possession, and that is where it can clearly been shown that the tenant is no longer using the accommodation as his principal home.

All claims for possession during the fixed term must be preceded by correctly serving a Section 8 Notice.

Claims for Rent Arrears

For Rent Arrears, perhaps the most common claim, the landlord relies on either one or a combination of grounds 8, 10 and 11.

* Ground 8 - the tenant owes at least two months' rent (monthly tenancy) when the notice was served and at the date of the court hearing. Where rent is payable weekly, quarterly or yearly this ground requires that there are rent arrears of eight weeks, three months and six months respectively.
* Ground 10: the rent was overdue when the landlord served notice and when he began court proceedings
* Ground 11: the tenant has been persistently late in paying his rent.

Periods of Notice Required - Serving a Section 8 Notice

You must serve notice seeking possession of the property on the tenant before starting court proceedings. You need to give the following periods of notice :

Grounds 3, 4, 8, 10, 11, 12, 13, 15 or 17 – at least 2 weeks
Grounds 1, 2, 5, 6, 7, 9 and 16 – at least 2 months
For ground 14 – you can start proceedings as soon as you have served notice.

Where the tenancy is a contractual periodic or statutory periodic tenancy, the notice must end on the last day of a tenancy period.

Serving Notices Seeking Possession

Section 8 and section 21 notices can be served in person or by mail. Courts will accept proof of postage or a recorded delivery as proof of delivery on the day, though it's advisable to allow sufficient time to arrive.

If served in person, ideally this should be witnessed. Personal service is preferable, with proof of postage being the next option recommended. Sometimes respondents refuse to accept and sign for recorded delivery letters which causes delay..

Re ASTs (source LLZ
http://www.landlordzone.co.uk/forums/showthread.php?t=2591
)
There is no maximum length but it is meant to be for a relatively short period otherwise why would it be called an Assured Shorthold Tenancy?

These are the defining lengths of the term where matters can change:-

1. For a term of 3 years or under it does not have to be witnessed and can be drawn up by a landlord & tenant quite simply.
2. Over 3 years then it does have to be signed as a deed and witnessed.
3. If you want to grant a tenancy of more than 7 years then you should use a tenancy at common law as you could make a tenant responsible for all repairs if you wanted to! (quite common in commercial tenancies). You would need to ensure it does not come under the Landlord & Tenant Act 1954 or you could be stuck with the tenant.
4. For tenancies over 21 years then different rules apply.

Any errors in the above, kindly let me know...

Cheers!

Artful