Change of tenancy agreement - Transferring deposits

G_M

cjprimrose wrote: »

......There was an agency fee of £372 to re-let the room and complete the associated admin with changing the name on the agreement from hers to mine. This has been paid and my referencing has been accepted.

The letting agent is now asking me to sign a "legal document" stating that I must pay the leaving tenant her share of the deposit (directly) and that I am accepting all liability for her share of the rent and potential property damage.

I think everyone is missing the point.

* the agent (landlord) is not ending the tenancy nor creating a new one
* so the existing deposit held by the LL (and presumably protected) does not need returning, nor a new deposit need taking, or protecting
* the incoming tenant is taking over the role (including all rights and responsibilities) of the outgoing tenant
* The existing tenancy will continue until it is ended either by the tenants vacating at the end of the existing fixed term, or by them giving notice if the tenancy is periodic, or by the LL serving a S21
* when it ends, the deposit currently held by the LL wll be returned to the 3 joint tenants (ie the 2 originals + the new one [OP]). This may be done via a 'lead tenant' who will distribute it.
* liability for damage will be assssed at that point, and compared against the condiion at the start of the tenancy - NOT at the date of the tenant swop.
* it is therefore for the new tenant [OP] to assess the condition and compare it to the original check in inventory before re-imbursing the outgoing tenant

* ideally this should be managed by a 'Deed of Assignment' signed by all 4 tenants + landlord or agent.

a web chat helper at shelter who said that it's not possible to simply change a name on an AST. Once one person on the agreement has handed notice a new agreement must be written and the deposits re-secured.

I'm afraid this is a load of codswallop!

Google 'Deed of Assignment' and you'll find plenty of examples.

marksoton

cjprimrose wrote: »

marksoton wrote: »

I get that. But by agreeing to their terms you're taking a risk.

But if I win the argument they'll be changing their terms and I won't be agreeing to them. ;-)

Bear in mind you will be entering into a relationship with these people. Albeit by proxy. Too aggresive and expect a hard ride.....


I've since been sent a draft copy of the tenancy agreement and it is an assured short term tenancy (AST). I've also spoken to the TDS who said from their side of things it is possible to amend a name on a protected deposit without a new agreement. They basically said the terms of the agreement are between the agent, the tenant and the landlord. The names on the deposit mean diddly squat and can be changed easily. I found that hard to believe but that's what she said.

You have no contract with the agent, only the LL

That being said I spoke to a web chat helper at shelter who said that it's not possible to simply change a name on an AST. Once one person on the agreement has handed notice a new agreement must be written and the deposits re-secured. Which ties in with what the agent has said on their website "re-protecting the security deposit". If that's true a new agreement would mean I am not liable for any damage that may be present when I move into the property.

And you can only achieve that with a fresh check in/out...

Anyone have any comments on this before I go in hard on the estate agent?

Frankly i'd go hard on this agent regardless. Bunch of idiots.

cjprimrose

Hi G_M

Thanks for the detailed response although it does seam contradictory to everyone elses. I'm not suggesting that your wrong, I genuinely don't know, which is why i was asking. I also have a post an other landlord forum with responses echoing the sentiment that the letting agent in this case is essentially trying to cut corners.

Can I ask what your background is on the subject and how you think yourself to be correct.

I'm just trying to establish all the rules and facts before getting too argumentative with the letting agent.
Thanks

G_M

I understand your doubts! yes, mine was a lonely voice countering the views expressed by nearly a dozen others.

Just goes to show how stupid a Referendum is as a way to determine important policy. There are too many ignorant people around who think they know it all!

(sorry - not helpful. But I feel better!)

What can I say?

* I have a law degree, but I'm not a lawyer.
* I'm a landlord, but I don't know all there is to know about tenancy law
* I've been posting on the forum extensively for around 8 years, usually but not always correctly

But as I suggested, google 'Deed of Assignment' and you'll find legal / landlord websites that explain what it is, some with sample Deeds.

Oh - and take a look at this thread :

Tenancies in Eng/Wales: Guides for landlords and tenants

Maybe I should add new topic: changing tenants on a tenancy agreement

Pixie5740

Good point G_M* it could be that the tenancy is being assigned rather than a new tenancy being created, so which is it OP?
Either way I'd still be wary about giving my deposit to an outgoing tenant and being liable for any of their damage/cleaning.

*G_M knows his !!!! from his elbow much better than I do (and most others on the forum) when it comes to housing law in England & Wales. I'm not sure why his Guide to Tenancies in Eng/Wales isn't a sticky.

G_M

Pixie5740 wrote: »

.....I'm not sure why his Guide to Tenancies in Eng/Wales isn't a sticky.

that's a Q you'd have to ask the mods.

cjprimrose

Haha total agree on the referendum point but hey ho.

Thanks for clarifying. Assuming then you and the L/A are completely correct the thing I still find difficult to accept is that they are asking me to make a private transaction between me and the departing tenant. How do I get assurance and guarantee that has any standing in terms of the deposit now being associated to me? If at the end of the tenancy the full deposit is returned to the lead tenant or the agent (I still don't know as I haven't seen the contract) what is my claim to 1/3 of it? Do I need to draw up a private agreement between me and the departing tenant?

The whole thing just seams incredibly weighted against me in every aspect. Returning to my original post, even if I do everything the agent asks and I find on my move in day a huge hole in the carpet under the bed, where does that leave me?

G_M

If the arrangement is as I've suggested (and as I believe the agents are suggesting), then

* the required document is a D of A, signed, witnessed and executed as a Deed. The agents seem to be suggesting a less formal document (though of course I've not seen it) which you might query.

The courts do often accept less formal documents in place of a Deed, where the intention of all the parties involved is unambiguous, but that cannot be relied on 100% as judges can be fickle!

* the deposit currently held by the landlord/agent, belongs to 'The Tenant'. In this case, 'The Tenant' (a singular noun as it is legally a single entity) happens to constitute 3 people. You will be one of those people (assuming the assignment of the tenancy is properly undertaken - see above)

* at the end of the tenancy, the LL must return the deposit (setting aside the issue of damage deductions) to 'The Tenant'. In practice, it is usually given to one of the 3 people (often designated by the deposit schemes as 'the lead tenant), and so far as the LL is concerned, he has then complied with his obligations.

* it is a matter for the 3 joint tenants what then happens to it. In most cases each will have contributed an equal 1/3rd share, so it will be re-distributed in that proportion.

* Your concern, of course, is that the lead tenant, who you currently don't know (and, god forbid, with whom you might fall out in the coming weeks) might not give you your 1/3rd. This is a risk. Unfortunately it's a downside of joint tenancies especially where it's with strangers.

* you would certainly be wise to get a receipt from the departing tenant (in case the Lead Tenant later claims "Oh but Jacko paid the other 1/3rd - I'll give it to him"). This would add strength to the 'legal document' which the agent has proposed which states " I must pay the leaving tenant her share of the deposit (directly" and would thus prove your entitlement to your 1/3rd

* That 'legal document' as said above should be Deed of Assignment, and a clause on the deposit such as suggested by the agent is wise.

I guess you could also ask the remaining 2 tenants to jointly sign a statement with you saying the £X00 deposit is owed to you each equally ie £Y00 each. That would clarify things, though at the end of the day, a degree of trust is required in any joint tenancy scenario.

If you don't trust them, don't become a joint tenant!

marksoton

G_M wrote: »

I think everyone is missing the point.

* the agent (landlord) is not ending the tenancy nor creating a new one
* so the existing deposit held by the LL (and presumably protected) does not need returning, nor a new deposit need taking, or protecting
* the incoming tenant is taking over the role (including all rights and responsibilities) of the outgoing tenant
* The existing tenancy will continue until it is ended either by the tenants vacating at the end of the existing fixed term, or by them giving notice if the tenancy is periodic, or by the LL serving a S21
* when it ends, the deposit currently held by the LL wll be returned to the 3 joint tenants (ie the 2 originals + the new one [OP]). This may be done via a 'lead tenant' who will distribute it.
* liability for damage will be assssed at that point, and compared against the condiion at the start of the tenancy - NOT at the date of the tenant swop.
* it is therefore for the new tenant [OP] to assess the condition and compare it to the original check in inventory before re-imbursing the outgoing tenant

* ideally this should be managed by a 'Deed of Assignment' signed by all 4 tenants + landlord or agent.

I'm afraid this is a load of codswallop!

Google 'Deed of Assignment' and you'll find plenty of examples.

Fair one. But to my mind a convoluted and risky way for OP to take on?

Especially as the agency are blatantly charging for "re-protecting" the deposit.

cjprimrose

Please bare with me, i think i'm understanding this now but just wanted to clarify a few things.

Okay, i've managed to speak to the departing tenant. She is very understanding of the situation and is being very reasonable. I've arranged to meet her and have a detailed inspection of the room against the original inventory before I sign this document from the L/A.

Document for reference (the one I have a time limit to sign): goo.gl/XienaX

I'm also going to speak to the L/A today to establish what agreement I will be agreeing/signing after the above declaration is signed and I have transferred the deposit to departing tenant. I asked to see a copy of the tenancy agreement and I was sent a draft template AST with no names on it.
Draft AST for reference: goo.gl/YLO22h

It may be - as discussed - that I'm signing a deed of assignment which if i'm correct in understanding should be a separate agreement to say i'm accepting the liability of the departing tenant but MUST be signed by all joint T's and the L/L. Is that correct and if so is that what document No.1 is?
If it turns out that in addition to the above declaration I am also signing into a new AST (i.e. me and existing T's all sign document No.2) then am I correct in asking that the deposit must be a new deposit and the new AST is valid from the point I move in meaning i'm not liable for damages up to that point?