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Not sure of validity of Tenancy Agreement

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Not sure of validity of Tenancy AgreementMy tenant signed a new AST in 2003 with me as new landlord as they had a previous agreement with my father since 1994.

Although they signed the new assured tenancy agreement in 2003 with myself as Landlord I instructed them to still pay the rent to my father as they had done previously.

At the end of 2007 I requested tenant to start paying the rent to me as my father went into a home.

Questions are:-

Was the 2003 AST valid as I was named Landlord on the agreement but rent was still paid to my father as it had been in their old tenancy agreement?

Or

Did I only become Landlord when they started paying the rent directly to me?

Also their deposit was never placed into a scheme as they initially moved in 1993 and then signed new AST in 2003 but as they started paying rent to me in 2007 was I supposed to place deposit in government scheme then.

Any advice would be gratefully appreciated.

Thanks

Leisel

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Comments

  • Hi Liesel

    Who the rent is/was paid to is not relevent. The landlord is the owner of the property, presumably still you father?

    The very last opportunity you had to protect the deposit was April 2012. There is nothing you can do about that now, you are risk of being fined three times the deposit plus the return of the deposit and you will not be granted possession if you need it under section 21 unless you refund the deposit prior to applying for possession.

    It’s not given that the tenant will sue you though. If I were in your shoes I would arrange to visit the tenant and explain the full situation, father being in a home etc. I would exoplain that a mistake has been made and in view of this mistake and your tenants having been long term tenants that you are happy to refund their deposit in full now.

    If they do ever cause damage to the property or fall into rent arrears you will still have the right to claim against them through the small claims Courts. If that is ever a requirement though you will need to take a commercial view as your tenants are in a position to counter claim for up to six years for their deposit not having been protected.


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  • Liesel Howard says:

    Hi Mark

    Many thanks for your reply, just to clarify a bit in case it makes any difference. I said my father (have always called him that) but I actually meant my father-in-law. My father-in-law rented his house from 1994 to tenant, in 1999 transferred deeds of the property to my husband. Then my husband in 2003 got the tenant to sign new AST with him as Landlord but still paying rent to his father, then in 2007 requested tenant to pay rent to my husband as his father went into home. Unfortunately my husband died 2010 and tenant still paying the rent into same bank account since 2007 and haven’t updated any tenancy agreements and just left it as it has been. So is the tenancy agreement the tenant had with my husband still ‘legal’ even though he has since passed. My father-in-law is still in a home if that has any bearing on it.

    Also hate to be a curse but one other thing, my father-in-law initially rented the house to the tenant back in 1994 he had a Letting Agent arrange it but fell out with them a couple months after renting out the property. Then having met the tenant continued it as it had been. Having a look now at the old tenancy agreement 1994 there isn’t any address of the Landlord nor Agent just of the property and just the Tenants and Landlords name and the Agents and Tenants signature, is this a problem as I have been thinking of selling the house and been told I may need all tenancy agreements ‘all present and correct’ if I want to get a possession order and obviously the AST 2003 is between the tenant and my deceased husband as Landlord.

    Also yes I will joining The GOOD Landlords Campaign, think I will be needing all the advice I can get!!!

    Kind Regards

    Liesel


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  • Hi Liesel

    Wow that’s quite a lot of curve balls you’ve thrown in there.

    There are several reasons here which might prevent you selling the property even if you do manage to get possession.

    Was probate grated?

    Is there a mortgage on the property?

    The sad fact that your husband is deceased and is/was the legal owner of the freehold of the property is a twist I don’t feel comfortable advising you on.

    Obviously your husband can’t be fined for not protecting the deposit as he is deceased, however, his estate may be liable but I don’t know for sure which is another reason I recommend you to seek professional advice.

    Please check out this member profile >>> http://www.property118.com/member/?id=190


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  • Hi Liesel

    I can answer some of the questions both you and Mark have posed, and hopefully point you in the right direction to move this forward.

    Firstly, in order to determine exactly what type of tenancy the tenant has I would need to look at the paperwork. Hopefully we will be able to establish that the 2003 Agreement is valid. If it is not valid, there may be a risk that the tenant has an assured tenancy which means it will be more difficult to obtain vacant possession.

    If the 2003 agreement is valid, then the executors of your late husband’s estate are the current landlords (unless the property has since been transferred in accordance with his Will).

    If the Rent Deposit has not been properly protected then the executors of the estate would be liable for any fines – which would be 3 times the value of the deposit. If the deposit was given back in 2004 this may not amount to very much. However in order to obtain vacant possession you will need to serve a section 21 notice. Before you serve the notice, you will need to return the deposit to the tenant.

    If you would like to discuss this further please contact me at justin@lawdepartment.co.uk


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  • Thanks for commenting Justin.

    Note for Liesel – Justin is a business Partner in Landlord Action and also a fully qualified solicitor. The profile I linked you to above was for Paul Shamplina, he is Paul’s business partner. Having thought it through I perhaps should have linked to Justin in the first place as he is qualified to advise on a wider range of legal issues.


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