Change of tenancy agreement - Transferring deposits

G_M

cjprimrose wrote: »

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.
well done.

Document for reference (the one I have a time limit to sign): goo.gl/XienaX
This makes clear that a new joint tenancy is NOT being created. You are taking over the existing one (it is being assigned to you).
However the document itself is not a Deed of Assignment.

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
Good. There should also be a Deed of Assignment
and I have the deposit to departing tenant.
I hope you got a signed written receipt?
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
OK

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?
Yes you are correct.
But no that is not what doc No. 1 is.
As previously suggested, use google to find examples of deeds.
To be a valid deed, it should
* have the word 'Deed' on it!
* be signed by all tenants and landlord
* all signatures should be witnessed


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?

If you are also asked to sign a new AST, that would be a nonsence. There cannot be 2 ASTs running simultaneously. Either
* the existing AST continues, assigned to you, OR
* the existing AST is surrendered and a brand new one created
It cannot be both.

The doc No. 1 makes clear the intention here is assignment, in which case, in addition to the need for a Deed:
* a new depsoit is not needed - the LL simply retains the existing
* ew depsoit protection is not required
* no fee should be charged for deposit protection

If on the other hand a brand ew AST is created, then you should not be giving a deposit to the departing tenant. The LL should return the deposit he holds (since the existing tenancy is ending) and a new deposit taken by the new joint tenants for the new tenancy - and it should then be protected.

And in that case the doc No. 1 would be a load of codswallop!

G_M

marksoton wrote: »

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.

Not convoluted or risky providing it is properly done.

But yes, charging for re-protection of the deposit is a rip-off as the deposit is already protected.

cjprimrose

Thank you G_M!! Can't thank you enough, very helpful indeed.

That's exactly what I needed to know to have this negotiation with the L/A & L/L.

I'll let you know how it goes.

G_M

Here is a pretty decent Deed of Assignment:

http://housing.london.ac.uk/cms/uploads/media/Assignment_-_revised_draft__18_5_12__ver3__2___3_.pdf

(though I note it is copyrighted)

cjprimrose

So, I went on the attack today armed with your knowledge. This is how it went down, all on emails of course so there is a written trail.

I sent this email today to the L/A;
"Can you tell me exactly what contract/document I will be signing after the agreement of the legal obligations letter and payment to [departing T] of the deposit. I have to be honest and I have looked for outside advice on this and I am being informed by more than one advisor that unless all parties involved (myself, the existing tenants, the departing tenant and the Landlord) sign a Deed of Assignment to transfer liability and the deposit to my name from [departing T's] then i shouldn't be handing over any funds to [departing T] privately.
The other information I have been given is that if as you suggest above that myself, [Remaining T 1] and [remaining T 2] will be signing a new Assured Short term Tenancy agreement then that legally ends the previous AST as it's not possible have 2 concurrent AST's on the same property. The deposit for the new AST must be secured as a new deposit and I shouldn't be paying the deposit privately to [departing T]. I'm also told that this would mean if a new AST is put in place then the legal obligations letter is not applicable as I am only entering into a new AST as a joint tenant from the 19th."

They're response to this was basically shut up and go home - see response below

"Please note: the legal obligations letter is not an agreement. As mentioned in my previous email, after signing the legal obligations letter you will transfer the deposit over to [departing T] and she will sign the deposit release letter. Only after all of this is completed, I will produce the AST tenancy for all tenants excluding [departing T] to sign.

We have been conducting successful change of occupancies for a number of years and for every case, it is mandatory that the legal obligations letter is signed. Without the signing of the legal obligations letter and handing over your deposit to [departing T] privately, then I am unable to complete the procedure and as a result you will not be able to move into the property.

On the one hand, I do understand your concerns and hesitation of handing over the deposit to [departing T] however, she will be signing a deposit release letter for a name change on the deposit protection scheme. We are unable to get involved with the handling of money when tenants are transferring deposits during a change of occupancy.

You state in your email that: ‘The other information I have been given is that if as you suggest above that myself, [remaining T 1] and [remaining T 2] will be signing a new Assured Short term Tenancy agreement then that legally ends the previous AST as it's not possible have 2 concurrent AST's on the same property.’

While the above statement stating that it is not possible to have 2 concurrent AST’s on the same property is true, at no time will there be 2 concurrent AST’s on the property. The change of occupancy is being conducted in line with the renewal date.
The existing tenancy comes to an end on 18/11 and the new tenancy is starting 19/11. The tenancy agreement you, [remaining T 1] and [remaining T 2] will sign will state that the tenancy will be commencing on the 19/11/2016 until 18/11/2017.

The procedure is still classified a change of occupancy. The reason for this is because [Departing T], [remaining T 1] and [remaining T 2] all entered into a joint tenancy and [departing T] wanting to leave at any point of the tenancy, regardless if this is line with the renewal, it is a breach of the agreement as [remaining T 1] and [remaining T 2] are wishing to remain for another 12 months. Please note: A change of occupancy is not outlined in the agreement, it is a procedure conducted under the landlords discretion. As they are renewing with [departing T] leaving and you being her replacement tenant, this is classified as a change of occupancy and not a brand new tenancy as a check-out has not been conducted. Due to the reasons mentioned, you will not be entering into a ‘new AST as a joint tenancy from the 19th’ as this is classified as a change of occupancy.

As you will be entering into the tenancy, you are correct in saying that the deposit needs to be re-protected. However, this does not change the fact that you have to pay [departing T] privately. As mentioned earlier in my email, it is our company policy that we do not get involved in the deposit handover between tenants. All we recommend is that is conducted after referencing."

What do you think? Is this the correct and legal procedure? What should I do from here?

45002

cjprimrose wrote: »

Hi, First post here as situation merits it.

I'm moving into a houseshare with 2 existing tenants and a 3rd is leaving (mid tenancy). I am taking her room. They have a joint tenancy agreement and the 3rd girl is leaving before the end of the tenancy with me to replace. 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 am happy to do this if I can have in writing something from the agent or landlord to state that they are happy that no potential loss of the deposit has been incurred up to this point. I.e. if the leaving tenant has damaged her bedroom then she is not entitled to her full share of the deposit. They have refused to do this and have said it's my responsibility to make a private arrangement with the leaving tenant to agree how much of her deposit share she is owed.

I do not know the leaving tenant very well and i'm sure they're honest but if they have caused any damage why would they disclose it to me or have any obligation to come to an agreement with me about the value of the deposit. Its not in their financial interest to do so why would they? I have raised this with the estate agent who are refusing to budge on this and have given me a time limit to sign the document and make the private agreement with the leaving tenant.

Can anyone advise me what to do? Is this even legal by the estate agent? Should the deposits not go through the estate agent, instead of dealt with privately.

I don't want this to fall through because I spent ages finding these housemates and the room and they're perfect but at the same time I don't want to be liable for something for which I have absolutely no control over. For all I know they're could be holes in the wall behind the bed and massive stains in the carpet under the furniture.

Thanks

For reference

http://www.landlordzone.co.uk/forums/showthread.php?76326-Change-of-tenancy-agreement-Transferring-deposits

G_M

What do you think? Is this the correct and legal procedure? What should I do from here?

No.

They intend to bring the existing tenancy to an end (on 18/11). Therefore at that point the property should be inspected for damage, and proposed deductions agreed, and the deposit returned to the current 3 tenants (which of course includes the outgoing tenant)

They then intend to create a brand new tenancy (on 19/11). So at that point they should take a new deposit from the 3 new tenants and protect it.

You should under no circumstances enter into a private arrangement with the outgoing tenant, with whom you have no contractual relationship.

Just as examples:
* what if damage occurs between now and 19/11? The outgoing tenant will not care, or take any responsibility, despite still being a joint tenant
* what if (for any of 26 possible reasons) the new tenancy is not created on 19/11? How will you get your deposit back from the outgoing tenant?

I realise that the difficulty here is that the agent holds the power - they can and are saying: 'do it like this or not at all'. !which leaves you with hobson's choice, unless you can persuade them to change their mind.

But my strong advice is not to pay the outgoing tenant directly unless the tenancy is assigned to you at the same time.

If you ignore this advice, I shall open a Book and accept bets on how long it is before you return here asking how you can get your deposit back from 'Jacko Smith' who has left the property, and the counyry, and who you have no contract with.

G_M

Out of interest, if they are asking/telling you to pay the deposit to the outgong tenant now, but the existing tenancy will continue to 18/11, where will you be living until 19/11?

Is it envisaged (by you? by the landlord?) that you will move in immediately? If so, what will be your status since the existing tenancy continues with the original names?

Are you expected to pay rent? If so, to who? The landlord/agent (with whom you have no contract yet)? Or the other tenants, meaning you are their lodger?

cjprimrose

No I won't be moving in until 19th as the leaving tenant is still in the house.

I'm still renting my current flat until 13th and then i'm staying with a friend until the 19th.

The departing tenant agrees with me completely about how ridiculous this is and she's willing to write a contract between ourselves to say that even though i'm paying her the deposit money soon (monday probably) she is still liable for any damages until 19th. So despite what i'm forced to sign with the letting agent I will have something in writing between me and the departing tenant to give me some claim to my deposit until the money in the DPS is allegedly changed to my name on the 19th.

marksoton

G_M is i have no doubt correct.

But this just sounds like a mess with a troublesome agency.

Personally i consider my time more important than the aggro.