What is the status of this tenancy?

[Grampa]

I have a landlord who has just inherited a tenanted property and given it to me to manage but the set up isn't straight forward. 

The AST on file is in the name of Mr Smith and started in 2012.and the rent was £650 pcm (no deposit). At sometime later on approx 2014/15 another person Mr Jones moved in as well so there was 2 people sharing and I dont think a new AST(S) were signed. But the rent was increased to £700pcm with each person liable for £350. Mr Smith is on HB which paid the £350 and the council were also aware of the sharing set-up.

Mr Jones has now moved out so Mr Smith has sole liability again and the rent changed back to £650pcm. The landlord is reluctant to grant/draw-up a new tenancy as there is a question mark over the quality of the tenant.

So is there a new (verbal) tenancy in place from the time Mr Jones moved out?

Or could the landlord rely on the original 2012 tenancy if notice had to be given.

Ideally I hope the tenant turns out to be ok and I get the go ahead to draw up a new up todate AST.to tidy things up.

 

[Richlist]

Here's what I think.......IANAL so will just try to take a logical approach.

Presumably the original AST was for 6 or 12 months and became an SPT with Mr Smith as tenant.

Mr Jones, never named on a tenancy agreement, was therefore not a tenant, just a guest of Mr Smith. Responsibility for the full rent payments therefore always remained with Mr Smith.

It therefore seems to me that irrespective of the fact that Mr Jones has left the properly, the original 2012 AST is still valid (as an SPT ) and any notice should refer only to Mr Smith and that current SPT.

I know very little about housing benefits but it seems unlikely that HB will be paid at the full £650 when Mr Smith could get a smaller /cheaper rental. I thought there were limits on the amount of HB that will be paid under new recently introduced rules.

[Grampa]

The council wont pay the the full £650 and there is a top for the tenant to pay. So hopefully that will come in regularly and on time and I can draw up a new tenancy in a couple of months to remove any question mark over the status.

I will have to try to find out if there was a AST given to Mr Jones.

The thing is if I did try to serve notice on Mr Smith the first thing he will do is go to the council for advice who may/could ague and take the line that a new verbal tenancy started when the rent changed and Mr Jones moved out which could then be used as a defence in any eviction hearing. 

Thanks for your thoughts.t

ps: i just had to google  IANAL so now know what it means. 

[Mortitia]

So Mr Smith who has been a tenant since 2012 is now doubted on payment by the landlord - why does he not evict under S21 and start again?  Mr Jones was granted a tenancy but needs to surrender it by Deed.

Mr Smith has a periodic tenancy so where is the problem?

[Grampa]

Suppose it could be argued a number of ways.

1. Mr Smiths Original AST is valid as Mr Jones was a lodger

2. Mr Jones moving in could be argued as either a joint tenant of Mr Smith or they had new separate AST's. Either of these invalidates the original 2012 AST.

3. Mr Smith taking on the whole property by himself again with a rent increase could be argued as a new tenancy.

I wouldn't be keen to evict because you only need a cute shelter rep or legal aid solicitor to argue the opposite of whatever route you took.

I know if I was advising the tenant I could have some fun muddying the waters.

The trouble is that when the court fee was only just over a 100 quid you could take a punt but with it 300 quid + now you want to get it right. 

[Richlist]

No 2.....I don't agree with Mr Jones being a joint tenant.   I see little difference between Smith & Jones and an unmarried couple with just one name on the AST. In both cases all parties contribute to rent but only one name is on the AST and responsible for payment. Perhaps there is existing case law but, in the absence of that, I think there is a strong argument that Smith is the tenant and Jones is a guest.

No 3......The scenario for no 3 only exists if the original AST is not valid.....personally I think the original AST is valid, so rent increases, agreed by both landlord and tenant (which they were in this case) are valid. A new AST is not required for a rent increase.

How sure are you that Mr Smith will be able to pay the difference between the HB contribution and the £650 rent ?

How big is the shortfall likely to be ?

Where is Mr Smith going to find the money from ?

He sounds like an accident waiting to happen........he already needed help with the rent from 2014/15. Is that likely to happen again ?

[Grampa]

12 minutes ago, Richlist said:

 

He sounds like an accident waiting to happen......

I dont disagree with that so you can see my reluctance to give him a new contract now. The shortfall is apparently going to be paid by family.

[Mortitia]

The original tenancy is still in force as it was not surrendered before or after  the lodger moved in.  That's the way I'd argue it.

[Grampa]

I see where you are coming from Mortitia but there are too many unknowns for me such as what have the council been told or documented regarding the tenancy and Mr Jones moving in and are there any more historic AST's floating around that I havent seen that could rear their heads when you least want it.

If I was pushed and needed to evict I would probably try my luck and  take the same view as you Mortitia. After all only a small percentage of S21 served do go all the way to the court. 

[Carryon Regardless]

Mr Jones was a T as he paid rent (well had it paid on his behalf), and it was accepted by the LL. As minimum he was a party to an AST agreement. This wasn't a sub let as Mr Jones had full rights as T. He has left and we assume no surrender was provided. There is a risk of him popping his head up but that sounds like very minimal.

To clarify Jones status I would be tempted to demonstrate his living status now. I wouldn't want his situation clouding a repossesion.

With Smith I would favour providing a new 6 month AST. He becomes sole T and in 6 months Jones now looks like nothing other than history. Any losses due to reduced rent can be justified by the single attempt at repossession.