Changing Tenants under a Periodic Tenancy

by Readers Question

12:47 PM, 21st December 2015
About 5 years ago

Changing Tenants under a Periodic Tenancy

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Changing Tenants under a Periodic Tenancy

I have a 3 bed property which was rented under an initial 12 months AST to 3 friends. One of the friends now needs to depart to London with his job.friend

The 2 remaining tenants have found a suitable substitute sharer, and asked me to remove the departing tenant, and replace him with the new sharer.

My inclination is to end the existing periodic tenancy, and replace it with a new AST however, the existing tenants have asked me to keep the existing periodic tenancy, and just swap over the names.

A) Is this possible?
B) What needs to be done to ensure its legal?

Any advice would be welcomed.
Cheers,
Jim


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Comments

Jim Fox

13:51 PM, 23rd December 2015
About 5 years ago

That's interesting Romain. I was always under the impression that an AST had to be set up for a minimum period of 6 months, and up to a maximum period of 12 months?
Cheers,
Jim

Romain Garcin

16:39 PM, 23rd December 2015
About 5 years ago

Reply to the comment left by "Jim Fox" at "23/12/2015 - 13:51":

Hi Jim,

There are no such restrictions. It is not that uncommon to grant an AST for a term of 2 years, and it is possible to go beyond.
And periodic ASTs are the norm, even if the vast majority are statutory.

Chris Byways

18:28 PM, 23rd December 2015
About 5 years ago

I am puzzled by this. Before coming onto this ever so helpful forum, I asked a solicitor

"After a period of more than 6 months, on an AST, CAN the 2m notice be given to quit for ANY reason ie the landlord does not get on with tenant, even if he has not and does not need to live in it? The model DCLG tenancy agreement seems to say this is no longer possible, After 1/10/15."

The reply I got was

"It is no longer an AST because the original has expired and it has rolled over onto a periodic agreement then notice can be given for any reason that the landlord or the tenant likes unless it is a discriminatory reason and so void under the Equal Opportunities Act.

All a landlord has to do to end a periodic is give two months notice using a S21 notice on or before the rental date. He does not need to give a reason.

Sorry if that is bad news."

MY REPLY
No, as the landlord that seems like good news. Although hoping it won't happen, I was concerned the changes made it harder to terminate a poor tenant.

HER REPLY

"Not substantially.

He is entitled to proper notice but you don't have to put up with a non payer or for any other reason a bad tenant.

Usually they make allegations of some form of discrimination though or, what seems to be popular, some form of sexual harassment. Quite interesting how many young ladies seem to think that if they say their landlord has a sexual interest in them they can live there rent free for life!"

IS THIS CORRECT, that it is no longer an AST AFTER 6m but a Statutory Periodic instead?

The DCLG ARE PROMOTING 2 or 3 year ASTs but say their model AST can be used for only 6m ASTs

Romain Garcin

18:51 PM, 23rd December 2015
About 5 years ago

Reply to the comment left by "Chris Byways" at "23/12/2015 - 18:28":

Hi Chris,

The status of a fixed term AST does not change after 6 months. It changes at the end of the term, which may of course be more than 6 months.

In any case, a statutory periodic AST is still an AST, just not a fixed term AST.

s.21 applies to all ASTs, however if the AST is a fixed term AST then possession may not be recovered that way before the end of the term.

There is no 'reason' under s.21 so discrimination, legal or not, has no bearing on the issue, I would think.

Jim Fox

7:34 AM, 24th December 2015
About 5 years ago

Once again, very interesting and useful information Romain, so thanks for that.
Cheers,
Jim

Chris Byways

8:41 AM, 24th December 2015
About 5 years ago

Thanks Romain. This was assuming there was no question of discriminatory or retaliatory eviction at all, but this extract on p27, followed by the other two reasons for eviction of mortgage repossession or selling I thought indicated you break at 6m or not at all, IE the "probationary period"
(However I now think this refers to AST over 2 years only)

"Guidance Note: Landlord’s one off break clause.
Clause F3 gives the landlord a one-off chance to end the fixed term tenancy at 6 months by giving the tenant at least two months’ written notice. This would enable the landlord to recover possession after the first six months. This means the first few months of the tenancy can serve as a probation period. If so, provided he gives at least two months’ written notice, the landlord can ask the tenant to leave the property on the date which falls six months after the start of the tenancy. If the break clause is not exercised within the strict time-frame it falls away.
This clause could, for instance, be used by the landlord if the tenant’s behaviour causes the landlord to be concerned to such an extent that the landlord would not wish to continue with the tenancy in the long term.
The exercise of a break clause by the landlord does not affect the Tenant’s right not to be evicted without a court order. Landlords should be aware that in order to be able to regain possession of the property through the courts after the date specified in the break notice, the break notice served on the tenant under this clause will also need to comply with the requirements of section 21 of the Housing Act 1988 or, alternatively, a separate section 21 notice will also need to be given to the tenant."

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/465605/151002_Model_Tenancy_Agreement_pdf.pdf

Seething Landlord

9:45 AM, 26th December 2015
About 5 years ago

The model agreement is designed to be used principally for tenancies with a fixed term longer than the customary six months. The concept of a probationary period and break clause at six months is presumably intended to reassure landlords that they will not be stuck with an unsatisfactory tenant for an extended period. If tempted to grant such a tenancy be sure to check that you will not be in breach of your mortgage or insurance conditions.

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