AST - Witness

[Richlist]

Can anyone confirm that AST's do not legally need witnessing ?

I seem to vaguely remember that AST's for less than 3 years do not require a witness signature.......is that right ?

[Grampa]

Only if you want the contract to be a deed which most AST are not.

[Richlist]

Thanks Grampa.

Seems the overiding advantage of executing an AST as a deed is that you have 12 years in which to take the tenant to court for unpaid rents.......after which time the poor tenant may be considerably better off and able to pay any claim. An AST as a contract allows 6 years in which to chase the debtor.

[Grampa]

I didnt know that about the 12 year rule. I knew it was better for the ast to be a deed if signing in advance to put more weight behind it and stop the tenants pulling out. Regarding the 6 year rule isnt that for a ccj?

[Antnkel]

When chasing a tenant for the money can you add every expense incurred?

[Richlist]

WHAT IS A DEED?

Certain documents under English law are known as ‘deeds.’ A deed is a document that has to be signed and witnessed and the document itself should state that it is executed and delivered as a deed.

The differences between a deed and another form of contract include:

The limitation period – i.e. the period within which one party can sue for breach of contract – is twelve years whereas an ordinary contract has a six year limitation period.

Deeds are therefore often used where the contract involves a long term risk. For example, a contract to build a house or block of flats will usually be executed as a deed so that the contractor can still have a liability for latent defects that appear in the twelve years following completion of the work.

[Grampa]

Thanks for that.

There is one other advantage of a deed which is "consideration" which isnt needed.

With a normal contract you need OFFER, ACCEPTANCE AND CONSIDERATION.

[Chestnut]

Googling AST & witness I found a site which listed situations when AST should be witnessed. Not many, but it included when AST for more than 3 years, and when a Guarantor is involved.

[Richlist]

Googling AST & witness I found a site which listed situations when AST should be witnessed. Not many, but it included when AST for more than 3 years, and when a Guarantor is involved.

......and I guess that is the reason why my agents witness every AST raised, executed and signed in their offices. Not all have guarantors but it means there are no mistakes made on that specific point.

The reason I'm asking the question is because I'm raising a new AST for a long term tenant who's partner has moved out permanantly and who now needs a tenancy agreement just in their name. We don't need a deed or a guarantor ........and now its confirmed we don't need to witness the signatures.

[Phebberd]

Hi there , where the tenancy is for a fixed term of more than three years it must be created by deed. Interestingly a fixed term of three years or less may be granted either orally or in writing so there is no need for a witness. Putting it very simple, if the tenant takes possession, pays rent in accordance with the oral agreement you are likely to have a tenancy. If it is more than three years for a deed to be properly executed it should be duly signed and delivered. The procedure is governed by s1 of the Law of Property (Miscellaneous Provisions) Act 1989. There are other provisions if it is a company or corporation. In practice what it means in summary is that you call it a deed on its face and then it is signed and witnessed as a deed. This is what we put at the end of our tenancy agreements:

By signing this Deed you will be entering into a legally binding contract.

You should read it carefully to ensure that it contains everything you want to form part of the agreement and nothing that you are not prepared to agree to. If you do not understand any of the obligations contained in this agreement we strongly suggest that you contact the Citizen Advice Bureau or a Solicitor for the benefit of legal advice before signing.

Signed and delivered by the Landlords in the presence of:-

_________________________________

Signature of witness

_________________________________

_________________________________

Address of witness

Landlords to sign here

Signed and delivered as a deed by the Tenants(or their duly appointed agent) in the presence of:-

_________________________________

Signature of witness

_________________________________

_________________________________

Address of witness

Tenants to sign here

I hope that helps!

Paula

[Carryon Regardless]

My, cynical, view is that there is little legal value to a tenancy contract anyway. Statute dictates most terms within a tenancy and whatever we attempt to dictate by contract will be down to a judge to like or dislike.

For example we generally write in that we have access with 24 hrs notice, when a T says no we only have option to repossess, our term is pointless.

We often write that where rents are unpaid we may repossess without prejudice and we all know how that is governed by statute.

My aim with an AST is to attempt education of T's and 'hope' they comply.

The 12 year advantage is interesting but if we pursue and have judgement 'within the 6 year period' are we not then entitled to pursue enforcement of that judgement indefinitely ?

Antkel we can pursue for out of pocket expenses but not for our own time and effort - that's free.

RL wot no g'tor, that doesn't sound like you.

[Richlist]

RL wot no g'tor, that doesn't sound like you

I don't usually ask for guarantors.

I usually take rent guarantee insurance instead but, on the rare occasions that this isn't possible, then I insist on a guarantor.

This particular person has been a tenant of mine for 13 years. I know what I'm getting so in this particular situation......and this situation only......I feel comfortable without either.

[Carryon Regardless]

My longest serving T, since 2002, sent a letter in February saying he would be gone mid march. Another 14th March saying he did go 28th February, and all because I became active chasing unpaid rents. Previously he had hit £1,700 arrears and cleared them, this time when they hit over £2k I became less than relaxed although i was used to his ups and downs.

Now he and G'tor 'think' they have disappeared to never be found.

It's only £2,798.94 so with the 1p off the beer maybe I'll recover it that way with some concentrated application, ask me how I'm doing later.

[Richlist]

I'm still waiting to hear of a landlord who chases the guarantor for the debt only to find they have no money & only a house as an asset.......and then has to wait 10 years + until the house is sold before getting paid.

Good luck.

[Grampa]

If I had a choice between guarentor or deposit I would take guarantor, but ideally both. When ever I had to chase a guarantor most of the time I have had a result but I have had a couple who were tricky but we all know renting property isnt risk free.

What I like about guarantors is that generally they want to resolve any issues so they arent liable and they will also stick a rocket up the tenants backside where we (landlords or agents) cant I have even had guarantors go round and clean the property or clear rubbish to reduce their liable.

But you do need to ref the guarantor in the same or similar manner as the tenant. We have turned away a couple that although they owned their own property had a number of unpaid ccj's which would mean they would take no notice of any letters or L.B.A. The tenants soon came up with another accepable G though.