Legal Advice

[lesley252@hotmail.com]

My brother & girlfriend has rented out their house and moved into her parent’s new house.

Her Dad arranged everything and when I was there yesterday I looked at the tenancy agreement, they had her Dad as the Landlord (rather than my brother & girlfriend) and he agreed the terms.

I said I think that the tenancy agreement is void as he is not the owner & cannot impose possession/etc.

My brother didn'’t know whether the Dad or Letting agent had made the mistake. When he queried it with the agent they said that it was void unless he signed a Power of attorney – although I dispute that if this was the case then it still would be void .

What are the legal implications if it is void and what can be done to correct it?

[Preston]

Hi

It is not true to say that your Dad would have needed a power of attorney for the tenancy agreement to be valid. If everything has been done with the owners' (your brother and girlfriend) consent then a tenancy has been created. (In fact, agents often sign tenancy agreements on behalf of their clients and I suspect very few of any of them have a formal, legally effective power of attorney in place - I wonder if the agent to which you refer ever does this?) The only problem would be if the tenant claims the contract is void because they were mislead. This seems unlikely though - presumably they wanted and still want the property? And the owners can easily sort this issue by having a fresh copy of the tenancy agreement signed with the correct landlord information and with the original tenancy start date. Just in case you are wondering, by doing this they would not "backdating" a tenancy, but simply confirming in writing with the tenant the terms and conditions of a tenancy that has already been created. The tenant would not then be able to claim at a later date that the tenancy had never existed.

Doing this should also mean you have complied with section 48 of the Landlord and Tenant Act. It says that unless you give the tenant an address in England where notice of proceedings can be served on the landlord then the rent is not lawfullly due. A properly drafted tenancy agreement will contain this information - which will presumably be your brother's address?

Hope all this makes sense.

Good luck.

Preston

[lesley252@hotmail.com]

Thanks I didn't think POA would make any diffeuence.

the issue was is that the agent has drawn up the TA with the Dad as the Landlord rather than my brother & girlfriend who own the property. Are you saying that this is OK as they have given permission?

What if the tenant doesn't pay the rent and you go possession - the landlord on the TA is not the owner? (so can you use the correct notices??)

The adress for the landlord is correct it is just the name which is wrong.

Is it best just to have a new TA done?

Thanks

[SPEEDTWIN]

You can leave the original contract in place and send a letter to the tenant stating you are the landlord and give a address (in england or wales) where notices can be served and everything will be above board and you have complied with s48 as stated in the earlier post. This is what some agents do when taking over a property from another agent if they dont wish to do a new contract.

Or you just go round to the tenant and do a new contract

[Preston]

Hi Ziggy

Yes, I am saying that if the agreement was entered into with the owners permission then it is perfectly valid. You are right, though, that any errors on the paperwork can create confusion at a later date, so its best to sort them out now if you can, just to minimise the risk, albeit a very small risk in this instance. You could do as Speedtwin suggests and send a letter to the tenant. This is a good idea, but I would prefer to go a bit further and get something signed from the tenant. The easiest way to do this is for them and the correct landlord to sign a new tenancy agreement with the tenancy start date exactly the same as the old one or alternatively for the old document to be corrected and for all parties to sign the corrections. The effect of this is simply to confirm what is already the case and it will mean that the tenant will not be able, at some future date, to claim that the paperwork errors have voided the agreement.

Just by way of background, it might be helpful to bear in mind that an assured shorthold tenancy can be created (and very often is) without a written contract. If the tenant is given exclusive possession of the property for a rent over a given period such as a week or a month and there is an intention on the part of both landlord and tenant to create a legal relationship, then a tenancy is created regardless of the presence - or otherwise - of a written tenancy agreement and, indeed, irrespective of any technical errors in that agreement.

So, the owners cant claim at some point in the future that there is no tenancy if, by their actions (in this case, by allowing their Dad to negotiate on their behalf) they have already demonstrated their intention to create one. Equally, a tenant cannot deny the existence of a tenancy in the future if they clearly demonstrated an intention to enter into such an arrangement - unless they can claim that the agreement was void because they were mislead on some fundamental term. It is this latter point that you will be covering by getting the paperwork sorted out. But I have to say that in any event the risk is very small. The tenants will have a very difficult job trying to void the agreement, particularly if they remain in possession and continue paying the rent after they have been made aware of the landlord's true identity, even if the paperwork isnt corrected.

Sorry if this is getting a bit long winded. In a nutshell, I really wouldnt worry. But just to make absolutely sure, I'd get the paperwork tidied up.

Hope this helps

Preston