Common Law Tenancy ended 6 months ago, Landlord wants to backdate a new agreement

tbs624

jjlandlord wrote: »

Indeed the limit was increased.
My understanding is that when it was your tenancy automatically became an AST. So that you have been on as AST since October 2010, and specifically a statutory periodic AST since June 2011.

I'd agree with that

jjlandlord wrote: »

Edit:
Re. deposit protection, the common position seems to be that it did not need to be protected in October 2010, though as a new tenancy arose in June 2011 it may have had to be at that point.

The OP says they did not sign a new agreement so if they have continued as Ts under a stat periodic why would deposit reg be applicable at that point?

My understanding was that the courts will have to decide when and if deposit reg should have taken place - it seems that LLs whose tenancies fell in that over 25k but under 100k category were advised it would be best to cover their backs by scheme registering from the actual threshold change date on October 2010

N79

I agree with jjlandlord and TBS that the agreement became an AST in October 2010.

However, I am not certain that the deposit needs to be protected - this statutes are not clear on this point and an argument could be made either way. However, my opinion is that the deposit should be scheme registered before relying on S21 as the costs and hassle of registration are far lower than the costs and time of dealing with eviction delays due to a legal challenge to the validity of the S21.

jjlandlord

tbs624 wrote: »

The OP says they did not sign a new agreement so if they have continued as Ts under a stat periodic why would deposit reg be applicable at that point?

Although OP did not sign a new agreement, the SPT is not the original tenancy "continuing", it is a new tenancy.
So I think that whether they signed a new agreement or not does not make a difference and I was pointing out June 2011 purely because of that (though indeed it is not crystal clear whether deposit protection is required in any case).

00ec25

jjlandlord wrote: »

Although OP did not sign a new agreement, the SPT is not the original tenancy "continuing", it is a new tenancy.
So I think that whether they signed a new agreement or not does not make a difference and I was pointing out June 2011 purely because of that (though indeed it is not crystal clear whether deposit protection is required in any case).

the key point appears to be what a court would decide because reading the link you posted above, the gov advice ends up sitting on the fence about whether the AST created automatically in Oct 10 is a "new" tenancy, surely therefore the SPT is not a renewal (or new) tenancy event?

"Landlords with existing common law tenancies which will become assured shorthold tenancies when the rental threshold is increased, ... will, however,need to protect the deposit if the tenancy is renewed on or after 1 October, or if a new deposit is taken. We do not consider that deposits taken before 1 October will need to be protected as these were not taken in connection with a shorthold tenancy and therefore do not meet the criteria for protection specified in the Housing Act 2004. Ultimately, however, it is for the courts to decide when deposits should be protected and we are unable to give a definitive interpretation of the legislation or speculate on how the courts might find in any particular case."

tbs624

jjlandlord wrote: »

Although OP did not sign a new agreement, the SPT is not the original tenancy "continuing", it is a new tenancy.

Sorry, my phrasing has perhaps confused the point I intended to make: "they have continued as Ts" as in they have remained in occupation, rather than this is the original tenancy continuing

jjlandlord wrote: »

So I think that whether they signed a new agreement or not does not make a difference and I was pointing out June 2011 purely because of that (though indeed it is not crystal clear whether deposit protection is required in any case).

But, as we know, where an AST's FT finishes and a stat periodic arises there is *no* requirement for the tenancy deposit to be registered at that point - only applies if a new FT is signed up for.

That said, if I were the LL in this scenario I'd cover my behind :as N79 says, it's easier than having a battle about a subsequent S21

jjlandlord

00ec25 wrote: »

the gov advice ends up sitting on the fence about whether the AST created automatically in Oct 10 is a "new" tenancy, surely therefore the SPT is not a renewal (or new) tenancy event?

I'm not expert enough to comment on whether the increase of the rent threshold created new tenancies or changed the status of existing ones.
However, I am quite sure that the SPT is a new tenancy. It is defined as such by s.5 of the Housing Act 1988.

will, however,need to protect the deposit if the tenancy is renewed on or after 1 October, or if a new deposit is taken. We do not consider that deposits taken before 1 October will need to be protected as these were not taken in connection with a shorthold tenancy and therefore do not meet the criteria for protection specified in the Housing Act 2004. Ultimately, however, it is for the courts to decide when deposits should be protected and we are unable to give a definitive interpretation of the legislation or speculate on how the courts might find in any particular case."

I note a contradiction between "need to protect the deposit if the tenancy is renewed" and "We do not consider that deposits taken before 1 October will need to be protected as these were not taken in connection with a shorthold tenancy".

However, if they think that a new tenancy (there's no such thing as "renewing") requires protection then I do not see why creation of a SPT should not require protection.
Counter argument is obviously that since tenancy was not an AST at the time deposit was received, protection of that deposit will never be required.

tbs624 wrote: »

But, as we know, where an AST's FT finishes and a stat periodic arises there is *no* requirement for the tenancy deposit to be registered at that point - only applies if a new FT is signed up for.

I think that how deposit schemes operate and the law regarding when tenancy deposits must be protected are different issues. Especially, it is up to deposit scheme to decide when to stop considering a deposit as protected.
Also what you say assumes that deposit is already protected when SPT is created.


Anyway, I had just expressed what I thought should be or could be. I'm no lawyer, and certainly even lawyers seem to leave the interpretation of the Housing Act 2004 to courts.

But for sure, in the case of OP, if the landlord were to serve a s.21 notice he should try to defend that the deposit is not protected if he intends to gain a few extra months.

brian_m_3

Thanks for all your replies on this, actually there is one further question I'd like to ask; where do we stand if my LL decides he wants us to stay with a new agreement but not backdate anything? I'm aware we have 2 months' notice for leaving, but if he wants to draw up a new agreement is there a minimum notice period for this?

Johnhowell

It is my understanding that, currently, under a period statutory tenancy - notice periods are the following minimum - the landlord has to give you 2 months notice and you as tenant only have to give 1 months notice. If you sign a new tenancy agreement the notice periods can be virtually anything "as agreed", but not less than the legal minimums.

You do not have to sign an new agreement.

Good luck,
John

tbs624

brian_m wrote: »

Thanks for all your replies on this, actually there is one further question I'd like to ask; where do we stand if my LL decides he wants us to stay with a new agreement but not backdate anything? I'm aware we have 2 months' notice for leaving, but if he wants to draw up a new agreement is there a minimum notice period for this?

If you are happy to sign it, it can run from whichever date both you and the LL agree on. It is usual however for a new agreement to start after the end day of your current rental period .

If you don't want a new FT at all then you have to run the risk of the LL giving you notice of intent to repossess and proceeding to a court order.

If he simply wants to raise the rent you can remain on a stat periodic and he can serve a S13 Notice to do so.

Johnhowell - in Eng/Wales a T may simply leave at the end of a FT without giving any notice , although it is courteous to let the LL know.

dimbo61

It costs £30 to register a deposit with mydeposits.