Agency refusing to give me new countersigned rental contract till the current one expires

SouthLondonUser

The contract for the property I am renting is about to expire. With the landlord, we agreed an extension, by signing an addendum to the existing contract, that basically says: same conditions as the previous contract, but new term of x. The process was managed by the same letting agency through electronic signatures with docusign.

The landlord and I have both signed, but the agency is refusing to give me a countersigned copy of the new contract till the current one expires. They are saying they cannot "execute" it because they cannot have two rental contracts in place at the same time. To me this sounds like total nonsense, because:

• the agency isn't a party to the contract and doesn't execute anything; the landlord and I have already executed the contract by signing it
• there would not be two contracts in place at once because the new one starts when the old one ends. 
• A contract is executed when it is signed; it is perfectly normal to sign a contract now that starts only at a later time (any type, not just a rental contract)
• If we hadn't done electronic signatures, what would they have done? Asked me to go to their office to sign the contract, but then they would have kept it and only given it to me when the new one expires???

The deposit we paid at the beginning is higher than what is allowed now, so the agency will have to refund me the difference when the new contract starts. Maybe this is why they don't want to give me a countersigned copy? Even so, I don't follow: isn't the refund due when the new contract starts, rather than when it is signed?

Am I missing something? Could anyone clarify? Thanks a lot!

greatcrested

You are right. The agent is wrong. No reason the countersigned contract canot be given to you.

However I doubt you need be concerned - when your current fixed term expires, provided you stay, then the next day a periodic tenancy will commence if a new fixed term is not agreed. See

Post 4: Ending/renewing an AST: what happens when a fixed term ends? How can a LL or tenant end a tenancy? What is a periodic tenancy?

That is quite apart from your correct argument that the new contract became valid the moment it was dual-signed, though of course without a copy it is harder for you to prove this.

The deposit does not need to be returned/or partially refunded.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/819634/TFA_Landlord_and_Agent_Guidance_190722.pdf

You do not need to return any amount of tenancy deposit that is over the cap for tenancy agreements that were entered into before the Tenant Fees Act came into force. For more information on this, please read the Tenancy Deposit section.

SouthLondonUser

I originally paid a 6-week deposit. Then a new law capped the deposit to 5 weeks worth of rent.

The deposit does not need to be returned or partially refunded if the original contract was signed before the new cap on deposits became effective. However, the point here is that the old contract is being amended after the new cap on deposits, so I am due a partial refund. I would have thought this partial refund is due only when the new contract starts. Maybe the agency thinks it is due when I receive the countersigned contract??

princeofpounds

For anyone interested in the issue of the deposit cap, read the guidance here (pg29 specifically). This new agreement would seem to be covered as it is a new fixed term rather than an SPT or CPT. I think this is in contrast to what greatcrested suggested above, but to be fair I do not think the guidance is perfectly written on this point, as the extract they posted is accurate. I think the difference is that a new fixed term is legally seen as a new tenancy, not a variation of the old tenancy - despite that being the way it has been effectively implemented.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/819634/TFA_Landlord_and_Agent_Guidance_190722.pdf

"From 1 June 2019, the cap applies to fixed term contracts which are renewed for another fixed term – even if this is at the same property – as they will be a new applicable tenancy. Landlords and letting agents will be required at this point to repay the amount of the deposit held which is over the five (or, where appropriate, six) week cap."

Contracts are valid in theory when it is countersigned, but in practice they are not really valid until they are exchanged (not using the word in the buying/selling sense), because if you don't have the contract, how can you actually know and more importantly prove it was countersigned?

I don't know how the docusign process works, so perhaps you can already demonstrate what was signed and that it was indeed signed. In which case the agent is just being stupid. But that would basically mean having access to the contract anyway.

The guidance also isn't totally clear on when the deposit is to be returned in my opinion:
"this deposit should be returned within 10 days of the tenant and the landlord agreeing on the amount to be returned (minus any deductions for fair wear and tear for example) at the end of the tenancy."
But it very much seems that this is a reference to a standard deposit return request to the relevant protection scheme. So that has to be after the first tenancy has finished.

Yeah, I can't think why the agent is doing this. It's pretty pointless, unless they want to reserve the landlord's ability to decide on another course of action until the last moment. As greatcrested suggested though, don't worry. Your current tenancy doesn't end anyway.

SouthLondonUser

I am not overly worried that the landlord will change his mind: he is a decent person, knows I took good care of the property, plus it wouldn't be easy for him to find someone else willing to pay more right now with covid etc.
The real danger is that, if he wanted to be a ****, he would be entitled to give me only 2 months of notice, whereas, for a number of reasons I won't go into, I need to remain in the property for longer than that, but like I said I am not too worried.

I do not understand why the agency is doing this. Maybe the minion I am speaking to has his own interpretation of the rules. Or maybe the agency came up with this stupid policy and there is nothing the person can do.

BTW, I am not demanding an immediate refund, I am perfectly fine with being refunded when the new contract starts - I am simply demanding a countersigned copy of the contract, as is common practice. On what planet do you sign a contract but not get your countersigned copy for a few months?

princeofpounds

SouthLondonUser said:

I do not understand why the agency is doing this. Maybe the minion I am speaking to has his own interpretation of the rules. Or maybe the agency came up with this stupid policy and there is nothing the person can do.

There are no professional standards to operate as a letting agent and most agents have only a loose grip on the law, because that's not what makes the money in the business - getting punters into boxes does. 

macman

Yes, he could issue you with an S21 giving two months notice, but that doesn't mean you have to vacate in 2 months. At present there are no evictions, so you can stay indefinitely. Even once the courts commence granting possession orders, probably in the autumn, there will be a massive backlog, both in court proceedings and in terms of bailiff action, so I doubt that you could actually be evicted before the start of 2021 at the earliest.

steampowered

The agencies I've dealt with do the same thing - they only release a copy of the signed tenancy agreement when the tenancy starts.

I'm not sure why they do it to be honest. I'm not quite sure what they think they are achieving.

greatcrested

macman said:

Yes, he could issue you with an S21 giving two months notice, but that doesn't mean you have to vacate in 2 months. At present there are no evictions, so you can stay indefinitely. Even once the courts commence granting possession orders, probably in the autumn, there will be a massive backlog, both in court proceedings and in terms of bailiff action, so I doubt that you could actually be evicted before the start of 2021 at the earliest.

If that were done the S21 would be invalid putting the process back even further!

3 months is required! (Coronavirus Act 2020 )

anselld

SouthLondonUser said:

The contract for the property I am renting is about to expire. With the landlord, we agreed an extension, by signing an addendum to the existing contract, that basically says: same conditions as the previous contract, but new term of x. The process was managed by the same letting agency through electronic signatures with docusign.

The landlord and I have both signed, but the agency is refusing to give me a countersigned copy of the new contract till the current one expires. They are saying they cannot "execute" it because they cannot have two rental contracts in place at the same time. To me this sounds like total nonsense, because:

• the agency isn't a party to the contract and doesn't execute anything; the landlord and I have already executed the contract by signing it
• there would not be two contracts in place at once because the new one starts when the old one ends. 
• A contract is executed when it is signed; it is perfectly normal to sign a contract now that starts only at a later time (any type, not just a rental contract)
• If we hadn't done electronic signatures, what would they have done? Asked me to go to their office to sign the contract, but then they would have kept it and only given it to me when the new one expires???

The deposit we paid at the beginning is higher than what is allowed now, so the agency will have to refund me the difference when the new contract starts. Maybe this is why they don't want to give me a countersigned copy? Even so, I don't follow: isn't the refund due when the new contract starts, rather than when it is signed?

Am I missing something? Could anyone clarify? Thanks a lot!

From DocuSign instructions ...
"Once completed, both senders and signers have 24/7 anytime, anywhere access to the document. It’s stored online and can be downloaded and printed as needed."
So if it signed by all parties you should be able download it.  There is no "execute" step.

I know AdobeSign emails all signatories on completion.  Not sure if DocuSign should do that also.

SouthLondonUser

@anselld, that's not what's happened in my case.

I had tried to log in after signing; it doesn't say who signed it or not. The only thing it lets me download is the PDF without any signature; and there is a message saying "you will be emailed when this document is executed". By the way, the landlord has signed, so it has been executed!!

Unless both the estate agent and the landlord are lying (I trust estate agents less than I trust drug dealers, but the landlord is a decent person and I have direct communication with him), we have all signed the document. I can only suppose that the docusign system won't let me access it until and unless the agent says so.