Question about an assured shorthold tenancy agreement - can we get money back?

dejavufr67

A friend of mine who is a student was planning on going to university for her third year and so went about finding somewhere to live with her friends.

When she found a place she signed an assured short hold tenancy agreement with the leasing agent and then paid over £800 for fees, rent, deposit etc.

After having signed she had some medical issues with rendered her unable to return to university after having missed too much of the first term.

The contract was not witnessed by her guarantor who in the end never signed any contract regarding the property.

Since then the leasing agent has been withholding the money.

My question is: Is the contract binding if she has signed but there is no guarantor? Is she entitled to have her money returned?

theartfullodger

No guarantor is irrelevant to tenant's liabilities -

She is almost certainly liable for all the rent up to whenever whatever notice she gave to LL expires, some date after end of fixed term.

Has she given notice in any formal way??

Was the tenancy a "joint & several one" with her friends - if so EACH of the tenants (& possibly any guarantor what signed correct paperwork) will be liable for ALL the rent for ALL occupants...

It is not clear - did she take up occupation (ie walk in through front door after start date on tenancy) or not?? Her exact legal position changes depending on answer - but what she owes will be v similar...

Cheers!

dejavufr67

theartfullodger wrote: »

No guarantor is irrelevant to tenant's liabilities -

She is almost certainly liable for all the rent up to whenever whatever notice she gave to LL expires, some date after end of fixed term.

Has she given notice in any formal way??

Was the tenancy a "joint & several one" with her friends - if so EACH of the tenants (& possibly any guarantor what signed correct paperwork) will be liable for ALL the rent for ALL occupants...

It is not clear - did she take up occupation (ie walk in through front door after start date on tenancy) or not?? Her exact legal position changes depending on answer - but what she owes will be v similar...

Cheers!

Hiya, thanks for your response - we just have no idea at all about all of this.

1. The tenancy began on the 17th of September. She gave formal notice on or before the 11th October (we received confirmation that knew that she was withdrawing on the 12th via email).

2. She did not take up occupation as they would not give her a key or allow her entry without having a verified guarantor.

G_M

Without knowing the terms of the tenancy it is impossible to advise.

But this post may help you understand.

tbs624

Off OP's topic briefly: G_M - the link you give to your helpful and extensive post could perhaps do with an amendment, so that Ts don't miss out on a useful resource, assuming it to be only for LLs

G_M wrote: »

Landlord Law (Property solicitor’s website for landlords)

LL Law is of course not simply for LLs - Tessa has a tenant section and offers specific T membership as well as much free information The site also has guidance for LAs, Housing Advisors and Solicitors.

Perhaps also worth flagging up that Tessa is a specialist *LL&T* lawyer rather than the general term "property solicitor" ? (There are "property lawyers" who deal solely with property purchase and sale etc & who may have poor up to date knowledge on the finer poimts of LL&T issues):)

dejavufr67

G_M wrote: »

Without knowing the terms of the tenancy it is impossible to advise.

I have uploaded a copy of the agreement here (I've cut out the addresses and names etc):

el.lc/docs/tenancy.agreement.cut.pdf

I understand that i would usually have to pay someone to look through it and advise me so I won't be offended if no one does

theartfullodger

dejavufr67 wrote: »

....

2. She did not take up occupation as they would not give her a key or allow her entry without having a verified guarantor.

Interesting: So LL/agent refused to let her proceed with the contract: It is POSSIBLE that someone (cunning lawyer..) might be able to argue that the signed contract is therefore void (not sure, don't take my word for it, check..)....

What form did their refusal take ?? (email, letter, ..). Depending on what was said there may be hope...

However that kinda leaves the friends in the lurch...

dejavufr67

theartfullodger wrote: »

Interesting: So LL/agent refused to let her proceed with the contract: It is POSSIBLE that someone (cunning lawyer..) might be able to argue that the signed contract is therefore void (not sure, don't take my word for it, check..)....

What form did their refusal take ?? (email, letter, ..). Depending on what was said there may be hope...

However that kinda leaves the friends in the lurch...

It was an email - here's a paste (again without any names):

Hi ***,

Thank you for this. I would need the paperwork before you move in so if you could post it first class recorded delivery to ensure I receive it that would be great.

I am still outstanding payment from *** and Guarantor paperwork.

The property is ready now but until I receive all the payments and paperwork I cannot confirm a date to release keys. As soon as we receive everything from all of you I will call you all to let you know you can collect your keys.

Kind Regards

***

G_M

My opinion would be that :

1) if there is a tenancy agreement, signed by both landlord and tenant, then a contract is formed.
2) the lack of signed guarantor agreement/deed is irrelevant - the LL has signed a binding contract. A sensible LL (or agent) would not sign/hand over a tenancy agreement till the guarantor was vetted, approved, and signed.
3) Given 1 above, by not handing over the keys, the LL/agent is in breach of contract (and could be sued for losses (eg nightly hotel bills since start of tenancy and any other costs)
4) As artful says, it could be argued the tenancy is void - thus all monies should be returned
5) If the tenant does not have a TA signed by the LL, then no contract was formed, and therefore no rent is due. Nor is a security deposit. These should be returned. However a 'holding' deposit and/or credit check fee may be witheld
6) As you have removed the tenant(s) names, the tenancy agreement you've uploaded does not make clear if this is a sole tenancy or joint...!!! This would make a difference. esp if the others have been given keys.
7) I flicked through, and could not see a Break clause but suggest you read it yourself properly

dejavufr67

G_M wrote: »

My opinion would be that :

1) if there is a tenancy agreement, signed by both landlord and tenant, then a contract is formed.
2) the lack of signed guarantor agreement/deed is irrelevant - the LL has signed a binding contract. A sensible LL (or agent) would not sign/hand over a tenancy agreement till the guarantor was vetted, approved, and signed.
3) Given 1 above, by not handing over the keys, the LL/agent is in breach of contract (and could be sued for losses (eg nightly hotel bills since start of tenancy and any other costs)
4) As artful says, it could be argued the tenancy is void - thus all monies should be returned
5) If the tenant does not have a TA signed by the LL, then no contract was formed, and therefore no rent is due. Nor is a security deposit. These should be returned. However a 'holding' deposit and/or credit check fee may be witheld
6) As you have removed the tenant(s) names, the tenancy agreement you've uploaded does not make clear if this is a sole tenancy or joint...!!! This would make a difference. esp if the others have been given keys.
7) I flicked through, and could not see a Break clause but suggest you read it yourself properly

6. haha, i did it to protect peoples privacy - i know for a fact that it is a joint tenancy. There are multiple names on the agreement - it says on the contract:

1.5
Name(s) of TENANT(S):
Lead Tenant: Mr Firstname1 Lastname1
Additional Tenants: Miss firstname2 lastname2, Miss firstname3 lastname3

7. I have read through it myself already. I made this post just in case someone knew off the top of their head the exact answer to the question I have.

Kynthia

If the contract was between the student and the landlord, with no others making it a shared tenancy, and signed by both then there was a contract to create a tenancy. However if the student never received keys and never took occupation of the property, there isn't yet a tenancy. Therefore notice periods aren't relevant and the student can't be held liable for rent until the end of the fixed term. However either party is able to sue for losses when a contract is broken.

Unfortunately I'm not an expert so I'm not clear on who has broken the contract and is liable for losses. Is it the LL for not allowing the student to take occupation? Or is it the student for not providing the required paperwork. However the studnet is unlikely to recieve all of the money back as credit checks and holding deposit are not refundable if the tenant pulls out.