How to change AST agreement when one tenant leaves?

BartyBoo

Hello everyone.

We have a house we've been renting out to the same married couple for over 3 years - both their names are on the AST. The lady got in touch with us recently to say they'd sadly split up and her husband had voluntarily moved out shortly afterwards. She wishes to remain in the house with her child (and we'd like her to) and she'd like her husband's name removed from the tenancy agreement.

I called DirectLine for advice, and the guy on there seemed to think all that was needed was a letter from the husband to agree to this, and we could simply amend the original AST doc ourselves with reference to this letter. We'd certainly want to avoid all the 'witnessing of signatures' hassle of a complete new agreement if possible, especially with the C-19 situation (our original witness is an elderly and now-poorly family friend). 

Can anyone confirm how this can be done - as easily as possible, please? And, of course, legally! Is DirectLine's advice ok?

Thank you. 

princeofpounds

You can either vary the old contract, or award a new contract. An exchange of letters is probably enough for a variation.

You will indeed need to have some evidence of the husband's agreement to surrender his part in the tenancy, and your tenants should want some similar evidence that you will accept this surrender. You don't want him chasing you for illegal eviction and they don't want you chasing him for rent.

You don't need the same witness. Technically I don't think you need a witness at all unless you are trying to set up a very long tenancy, a very high value tenancy, or some kind of guarantee or other form of agreement that requires it to be a deed. Some more information on that stuff in the link. https://www.landlordlawblog.co.uk/2012/09/06/does-a-tenancy-agreement-have-to-be-witnessed-and-signed-as-a-deed/

greatcrested

I would do it properly. Either

* end the current tenancy ( check inventory & return deposit from scheme,etc) and create a new tenancy (new inventory, take and protect new deposit etc), or

* Execute a Deed of Assignment from departing tenant to remaining tenant.

flashg67

If you took one, you may need to re-protect any deposit just in the sole tenants name

princeofpounds

flashg67 said:

If you took one, you may need to re-protect any deposit just in the sole tenants name

Very good point. You don't want to get caught out on this. That potentially means issuing new prescribed information too.

macman

If the husband gives notice (even though already gone), then the tenancy will end anyway, for both parties? As above, do it properly with a new AST.
Can she afford to pay the rent on her own?

BartyBoo

Thank you everyone for all your wonderful help.

That 'Deed of Assignment' form you linked to GreatCrested looked ideal until I saw it also expects witness signatures. I am still hoping that between what DirectLine said and that LandLordLaw blog (thank you Prince) the husband's letter will be enough, but it looks as though I'll have to confirm that properly.

I know we don't have to use the same witnesses, but even with this one rental property and handling it all ourselves (after a dreadful experience with a so-called professional outfit) it's surprisingly difficult to find someone who'll act as a witness! The reason is simple and you might find it peculiar, I don't know; we just don't want folk we know to also know our business. And we can't go back to the close family friend we used before as sadly he is very unwell and we certainly wouldn't impose on them in these C-19 times.

Yes, we have a protected deposit, and I hadn't thought of that, so thank you FlashG :-)

The lady assures us she's actually no worse off now her hubby's moved out; she's had promotion at work, and she has one less mouth to feed. She also has her mum as guarantor on the AST.

They have been the best possible tenants, making it truly their home, and we allowed them to choose things like the carpets and kitchen fronts when they moved in (after the previous tenants wrecked them!). It is also probably the cheapest rent for a 3-bed house in the area, and we haven't increased it at all - and have no intention of doing so; we are very fortunate in having someone who looks after the place so well. She seems very philosophical about her change of circumstances, and I hope it works out for her and her child. I think it will - she's a strong & practical person. 

Thank you everyone. 

 

greatcrested

An Assignment needs to the Executed as a Deed to be properly legal. And a Deed needs the signitures to be witnessed.

Each signiture can be witnessed by a different person if that helps, and all they are witnessing is the signiture- they do not need to read or know what the content of the document is.

They can be almost anyone.

I've used my neighbour to witness my will. You could use a professional (bank manager,solicitor) if you want but they often want paying, or ask your local corner shop owner, colleague at work, or the person you play squash with.

As for Direct Line etc suggesting a letter, well, yes, that's fine when all goes well, but if some issue ends up in court, you are then dependant on a judge agreeing on who is actually "The Tenant".

Some judges might accept the letter as proving the intention of all parties, and accepting the ex is no longer a tenant, but you are dependant on the judge's discretion rather than the strict determination of the law.

Your choice.

BartyBoo

Thanks GreatCrested. Very good points. 

saajan_12

Legally, you're either amending the current tenancy or creating a new one. 
AMENDING: That requires a deed of assignment, signed by all parties (you, wife, husband) and each signature witnessed. It can be a short 1 pager and everything else re deposit, inventory, etc continues as is. 

CREATING NEW: You need to properly end the current tenancy, either by the tenants serving you notice or by signing a mutual surrender. Return the current deposit (else husband could come back to claim it years later). 
Then sign a new tenancy agreement with just the wife. Take a new deposit, protect it, issue documents (PI, how to rent booklet, EPC, EICR, GSC). Redo inventory (as when the wife moves out, you won't be able to claim for damages from a prior tenancy so you need proof of the condition now). 

The latter sounds like much more work to me, than a deed of assignment. I suppose you could try to amend the tenancy without bothering with the witnesses - as long as no one claims it didn't happen or wasn't them who signed away their rights to the deposit / accommodation etc, you're fine. If they do, it depends on who the relevant judge believes. 

BartyBoo

Thank you Saajan. That confirms what's already been said, and is very clear.

What is the difference between an AST and a 'Deed'? When Googling this I see that 'deeds' should be used when the tenancy will be over 3 years duration, but how would anyone know how long it could be when it starts? How do they differ?

Thank you.