How to change AST agreement when one tenant leaves?

greatcrested

An AST is a type of tenancy. A Deed is a type of legal document.

An 'Assured Shorthold Tenancy' can be any length from one day to 7 years.

If it is less than 3 years, an AST can be created very simply, either verbally, or in writing with the two parties simply signing the tenancy agreement.

If it is over 3 years, the law requires the AST to be 'Executed as a Deed', with each signiture being witnessed.

You are right that when created no one can forsee whether the original Term (length) of the tenancy will be extended (either by a further fixed period or on a periodic/rolling basis) but it is the original Term that determines whether it is more or less than 3 years.

Where a guarantor is provided to back up the tenant's obligations, that should normally also be via Execution of a Deed.

Where an Assignment of the tenancy takes place, replacing one tenant with another, that should normally also be via Execution of a Deed.

BartyBoo

How do you know all this!

That's great Greatcrested, and thank you so much. The actual documents are effectively the same, but having the signing witnessed adds that element of 'legality'? 

Looks like we'll have to go the whole hog with witnessed signatures as they also have a guarantor. 

Thanks again. 

greatcrested

Example of Deed of Assignment

Example of Deed of Guarantee

saajan_12

BartyBoo said:

How do you know all this!

That's great Greatcrested, and thank you so much. The actual documents are effectively the same, but having the signing witnessed adds that element of 'legality'? 

Looks like we'll have to go the whole hog with witnessed signatures as they also have a guarantor. 

Thanks again. 

Usually, an AST can be executed as a standard contract. Some things, often where there is an onerous requirement on one side, should be have additional checks such as: 
- stating it is a 'deed' at the top
- being witnessed to ensure the correct parties signed the deed

With a tenancy assignment, you're amending an existing contract, outside the pre-agreed clauses for eg serving notice. A tenant is losing the right to accommodation / other tenants are suddenly getting new housemates who they can't kick out. 
With a deed of guarantee, the guarantor is effectively promising to pay £000s if someone doesn't pay rent, with nothing in return, so its important they know what they are getting into and its verified they are the person that signed. 

BartyBoo

Our existing AST agreement has a section at the end for the guarantor, who is the lady's mum. So we are planning to simply go for the Deed of Assignment to remove the other tenant - her hubby - and there will be no new tenant added. This will then sit alongside the original AST; I really can't face ending the current tenancy and redoing it all including guarantor... 

All to be signed and witnessed. 

Phew. 

Thanks everyone. 

Slithery

BartyBoo said:

Our existing AST agreement has a section at the end for the guarantor, who is the lady's mum.

Was this guarantor executed as a deed originally? If not then it's not legally binding.

theartfullodger

Do NOTHING!   That way both remain EACH liable for ALL the rent.

Why would a landlord go from having 2 people to sue to only having one?? Genuine question, never had a sensible answer...

BartyBoo

Slithery said:

BartyBoo said:

Our existing AST agreement has a section at the end for the guarantor, who is the lady's mum.

Was this guarantor executed as a deed originally? If not then it's not legally binding.

It was a 'guarantee' document completed at the same time as the AST agreement (both docs completed via DirectLine's document service) and signed by the guarantor and also by their witness - is that what makes it a 'deed'?

BartyBoo

theartfullodger said:

Do NOTHING!   That way both remain EACH liable for ALL the rent.

Why would a landlord go from having 2 people to sue to only having one?? Genuine question, never had a sensible answer...

Lol! I've no idea!

But the lady has asked for her hubby - who seemingly moved back to his home city a few months back - to be removed from the AST and we would like to do this for her as she's been an excellent tenant and is very settled in the house. She probably wants the assurance that he doesn't have any further claim to live there.

I'm about the write to her and give her two options; if she thinks her hub will be happy to complete a Deed of Assignment' removing him from the tenancy, then that's fine - I'll go that route. If he's not, then I'll bring the current AST to an end, return her deposit (she's the 'lead' tenant on this) and start a new one with just her (and her guarantor).

(On that note, how do I 'prove' that he's moved out? Will I need an email or something from him? This is getting complicated.)

theartfullodger

Do nothing for 6 months.  If she's been fine on her own , then think about a new AST.  Currently you don't know how she'll manage