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Hello,
I'm soon to move into a property with two other Joint Tenants for the next academic year. We have agreed to rent a home under a 12 month Fixed-Term Assured Shorthold Tenancy (1st July 2019-1st July 2020). I would be extremely grateful if a couple of small nuanced points about the agreement could be clarified by the knowledge of this great community - as I believe the Lettings Agent may be conducting itself beyond what is allowed in the eyes of the law as well as breaking our Tenancy Agreement. I think some clarity on these points might benefit a lot of tenants.
My question concerns two related issues. I will include the relevant extracts of the Tenancy Agreement to qualify the point to which I refer.
In the Tenancy Agreement, the opening header describes the lease as an Assured Shorthold Tenancy subsisting for a Fixed-Term of 12 months from 1st July 2019 - 1st July 2020 which accords with the Housing Acts.
ASSURED SHORTHOLD TENANCY AGREEMENT
for letting a residential dwelling
Important Notes for Tenants
- This tenancy agreement is a legal and binding contract and the Tenant is responsible for payment of the rent for the entire agreed term. The agreement may not be terminated early unless the agreement contains a break clause, or written permission is obtained from the Landlord.
- Where there is more than one tenant, all obligations, including those for rent and repairs can be enforced against all the tenants jointly and against each individually. Where the tenancy is subject to deposit protection then joint tenants may have to nominate a lead tenant to act on their behalf with the Landlord or Tenancy Deposit Scheme provider or their alternative dispute resolution service provider.
- If you are unsure of your obligations under this agreement, then you are advised to take independent legal advice before signing.
-This agreement is an offer of a tenancy and becomes a tenancy when the following conditions have been met 1.) Both the Tenant(s) and Landlord have signed the agreement 2.) Possession of the property has been granted to the Tenant(s)
THIS AGREEMENT is made on the date specified below BETWEEN the Landlord and the Tenant. It is intended that the tenancy created by this Agreement is and shall be an assured shorthold tenancy within the meaning of the Housing Acts.
Date: 08 May 2019
Landlord(s): (I've removed this)
Tenant(s): "
Property: The dwelling known as "
Contents: The fixtures and fittings at the Property together with any furniture, carpets, curtains and other effects listed in the Inventory
Term: For the term of twelve months commencing on 01 July 2019 at 12 noon and then monthly thereafter
Rent: £1200.00 Monthly
Payable: by Direct Debit (other payment methods may be mutually agreed in writing)
Payment: in advance in cleared funds by equal Monthly payments on the 1st of each month
1. The Landlord agrees to let, and the Tenant agrees to take the Property and Contents for the Term at the Rent payable as above
(Clauses 2.1-2.4 deal with deposit and contents and chattel inventory so I won't include them )
In the agreement it is agreed between the parties as an express term of the contract that the right to 'USE' and 'OCCUPY' the property is precluded from the Tenants for the first two months of the Tenancy in consideration of payment of only 50% of the rent in these months. Storage of possessions in the property is however premised, and it is a requirement that the Tenants assume responsibility for the utilities of the property for the duration of this 'retainer period'.
There is no contention about this. None of us intend or seek to USE or OCCUPY the property until 1st September, when full rent becomes payable.
As I understand, this part of the agreement is a contractual obligation on us but cannot change the status of the AST in law.
You will observe that storage of possessions within the property during the retainer period is permitted by the contract - this is because in clause 2.5.2 you can see the Landlord's liability for such storage has been limited as well as the terms upon which such items can be stored agreed - (placing them on a bed in one room, labelling them 'New Tennant's Contents' etc.). The agreement makes it clear that liability for any utilities falls squarely on us as the tenants.
It is my interpretation that
1. the existence of an AST, and the legal rights such an AST confers, from 1st July,
2. the ability to store belongings during the retainer period, and
3. the requirement to pay the utilities of the property from 1st July onwards
All qualify the restrictions of clause 2.5.1 not to USE the property in such a way that two specific types of use are permitted, and indeed, required, in the context of storage and bill paying respectively.
To that end, I would argue that in order to use the property for these purposes, we as the tenants should not be unduly prevented ACCESS to the property at any point during the summer months, so long as the keys are returned before each night to ensure we are not occupying the property to live.
Considering the argument above, and also the fact that our landlord will take rent receipts on the property of £1200 during this retainer period, I find it unreasonable, and in my interpretation, unlawful, that the Lettings Agent has declared that each of us may ACCESS the property only on one single occasion during the retainer period, on a date and a time which they must agree or even choose themselves, additionally requiring a £20 deposit to discharge the keys on condition that they are returned the same day during their office hours, else the £20 is forfeit. They are essentially seeking to completely withhold all right of access to the property but for a tiny window that suits them, when they are not entitled to deprive that right.
For example, as the bill payer - I will need to attend on 1st July to take opening meter readings for the utilities and believe I have a right to verify any readings provided by the Agent by physically checking the meters inside the property. However, I will be working all day and only able to access the property outside of office hours for a few minutes. If I agreed an alternative day to access the property, I would fall foul of the landlord by submitting readings that were not taken at the start of the period for which we become responsible. Presuming they insist only to discharge the keys on 1st July, I do not even know that I will able to collect them at all and certainly cannot return the keys on the same day as they insistently are requiring, and I will therefore incur the penalty. Additionally, I will not be able to take any subsequent readings until September or arrange the change in suppliers that the Tenants have agreed on until then. If a supplier requests a reading for any other reason during this retainer period, I will not be able to provide it and will fall foul of my obligation to manage the utility affairs. Further will not be able to set up, install and verify the functionality of the phone and broadband until September when it will be immediately needed, disadvantageous to the household. Nor will I will not be able to access the property at any other time to move possessions in.
One of the other Tenants who lives a fair distance away would like to move in gradually over the summer, rather than carry an inordinate number of possessions on public transport across the country in one go. Only permitted to access the property once, this will prove impossible.
This pettiness by the agent is causing considerable practical problems for us. Problems I think are unnecessary and completely unforeseeable from the Tenancy Agreement. The limitation, and in withholding of access seems to be completely disproportionate and unlawful. They have taken the agreed meaning of the retainer period as precluding all use, occupation and access of the property, when in fact as I have reasoned, and interpreted when I signed the agreement, should only mean that most types of use are precluded, with two forms of use permitted excepted, as qualified in the subclauses, and that while occupation is restricted, access ought not to be as the contract does not expressly preclude access and in fact requires it, if nothing else, for the purpose of dealing with utilities.
Further, as I reasoned at the start, even if in extreme and bizarre circumstances, a Tenancy Agreement did directly and expressly preclude access, the tenants should not in fact be prohibited from that access because it is a fundamental legal right that accompanies Assured Shorthold Tenancy until such time that the Tenancy comes to an end. The restriction would be a restriction in the eyes of contract law only.
In other words, the agent or landlord even then would not be allowed to proactively stop the tenants from gaining access, and would still be required to discharge the means of access to the tenants (the keys), but would be able to take action in contract against the tenants for breaching their agreement, possibly as a civil matter or eviction proceedings.
The second issue concerns the new Tenant Fees Act. I would like to know when the tenancy could be argued to be granted - as to ascertain whether the TFA is immediately applicable to this tenancy. As many of you will be intimately aware, the No. 3 regulations brought the core of the Act into force on 1st June but only applicable prospectively from that point. Therefore, any pre-existing grants of tenancies to which the Act pertains will not enjoy the benefit of the Act until 12 months after that point - 1st June 2020.
The £20 contingent deposit on the keys during our retainer I've just mentioned is an example of something that would be prohibited under the Act, if I am not mistaken. As would be some other charges in our Tenancy Agreement. You will understand our anxiety in the hotly contended housing market of Manchester to secure a home for next year. Therefore, missing out on the alleviation brought forth by the TFA is a risk which I foresaw and was, and am, still prepared to bear if indeed the tenancy proves to be granted before the 1st June.
However, the opening section of the Tenancy Agreement already copied above makes for interesting reading in the context of what I have been discussing. Namely that 'this agreement is an offer of a tenancy and becomes a tenancy when the following conditions have been met 1.) Both the Tenant(s) and Landlord have signed the agreement 2.) Possession of the property has been granted to the Tenant(s)'.
A previous tenant held my place on the agreement which was signed back in September. They however came to other arrangements and paid to exit the tenancy early. Since it was a Joint Tenancy, all three had to surrender the tenancy which was novated and redrafted. Although it can be admitted that the Agreement in this second carnation is dated the 8th May, it was not signed by all parties until 14th May. The initial deposit guarantee was cancelled, and the exiting tenant refunded. I paid in her place; however the two others received conflicting information and were asked to repay their guarantees. It was eventually conceded that they did not in fact have to pay but we received numerous emails during this time stating that 'the tenancy is not secure' until the issue was resolved. We received an email on the 4th June stating the process was sorted and that the tenancy was only then 'completed'.
My question then, I suppose - what exactly does 'grant' mean? You can have at least three different interpretations. Does it mean simply authorised for a future date?, Perhaps it occurs on the the date the tenancy commences? or could it even mean the data that tenants have full right of occupation and possession? I personally err to the second - but you can see how reason alone is unable to differentiate the correct from the wrong. But I've found little case law of statute dealing with this point.
If it means the first, then it will be the agent's contention, if any TFA issues arose, that the lease was granted when both the agreement was signed by all parties, and the final deposit was paid, as full payment of the deposit by all three tenants was the only condition on which the lease was to be granted after we had signed. As I was the last person to pay on the 20th May, they would argue this as the grant date, thus protecting themselves from the TFA. Conversely, I would reason that it was not authorised until we received communication of such on the 4th June. Even if we had all paid before the end of May, we had all received communications warning that the Tenancy was not secure, on multiple occasions, even if this was because of mistakes made in their handling of the novation of the tenancy and the handling of the group deposit scheme.
If granted means the second definition, our lease is to be granted on the 1st July. If it means the latter, I would argue it not to be granted until 1st September because the contract states the lease is granted on condition of occupancy, and the retainer clauses preclude occupancy until 1st September. This distinction is academic as in both cases the grant would be said to take place after the TFA began to apply.
Again, it would be interesting to hear thoughts on this, as I think a firm grasp on when tenancies are granted could be of assistance to tenants, as agents will invariably be trying to define the grant points as early as possible.
For the sake of clarity, I intend to respond to the agent's approach to the main issue with common sense and try to negotiate around it in the first instance, however, considering the attitude of most agents; having some legal clarity or opinion to fall back upon would bolster any argument significantly. This is not an area of law with which I am intimately familiar, and if I have made any mistakes in interpreting it, I am happy to concede as such which is why I first pose the question here.
Many thanks.
I'm soon to move into a property with two other Joint Tenants for the next academic year. We have agreed to rent a home under a 12 month Fixed-Term Assured Shorthold Tenancy (1st July 2019-1st July 2020). I would be extremely grateful if a couple of small nuanced points about the agreement could be clarified by the knowledge of this great community - as I believe the Lettings Agent may be conducting itself beyond what is allowed in the eyes of the law as well as breaking our Tenancy Agreement. I think some clarity on these points might benefit a lot of tenants.
My question concerns two related issues. I will include the relevant extracts of the Tenancy Agreement to qualify the point to which I refer.
In the Tenancy Agreement, the opening header describes the lease as an Assured Shorthold Tenancy subsisting for a Fixed-Term of 12 months from 1st July 2019 - 1st July 2020 which accords with the Housing Acts.
ASSURED SHORTHOLD TENANCY AGREEMENT
for letting a residential dwelling
Important Notes for Tenants
- This tenancy agreement is a legal and binding contract and the Tenant is responsible for payment of the rent for the entire agreed term. The agreement may not be terminated early unless the agreement contains a break clause, or written permission is obtained from the Landlord.
- Where there is more than one tenant, all obligations, including those for rent and repairs can be enforced against all the tenants jointly and against each individually. Where the tenancy is subject to deposit protection then joint tenants may have to nominate a lead tenant to act on their behalf with the Landlord or Tenancy Deposit Scheme provider or their alternative dispute resolution service provider.
- If you are unsure of your obligations under this agreement, then you are advised to take independent legal advice before signing.
-This agreement is an offer of a tenancy and becomes a tenancy when the following conditions have been met 1.) Both the Tenant(s) and Landlord have signed the agreement 2.) Possession of the property has been granted to the Tenant(s)
THIS AGREEMENT is made on the date specified below BETWEEN the Landlord and the Tenant. It is intended that the tenancy created by this Agreement is and shall be an assured shorthold tenancy within the meaning of the Housing Acts.
Date: 08 May 2019
Landlord(s): (I've removed this)
Tenant(s): "
Property: The dwelling known as "
Contents: The fixtures and fittings at the Property together with any furniture, carpets, curtains and other effects listed in the Inventory
Term: For the term of twelve months commencing on 01 July 2019 at 12 noon and then monthly thereafter
Rent: £1200.00 Monthly
Payable: by Direct Debit (other payment methods may be mutually agreed in writing)
Payment: in advance in cleared funds by equal Monthly payments on the 1st of each month
1. The Landlord agrees to let, and the Tenant agrees to take the Property and Contents for the Term at the Rent payable as above
(Clauses 2.1-2.4 deal with deposit and contents and chattel inventory so I won't include them )
2.5. Retainer Payments: Retainer Payments are made to guarantee the tenant the exclusive right to occupy the Property on the terms of this Agreement with effect from the 1st of September.
2.5.1. Where the tenant(s) is reserving the Property over the summer months for the subsequent academic year, a retainer is payable which is a fee equivalent to half the monthly rent stated above for the months of July and August (The first months of the tenancy) The Retainer Payment does not allow the tenant to occupy or use the Property and does not prevent the Landlord dealing with or otherwise occupying or using the Property.
2.5.1. Where the tenant(s) is reserving the Property over the summer months for the subsequent academic year, a retainer is payable which is a fee equivalent to half the monthly rent stated above for the months of July and August (The first months of the tenancy) The Retainer Payment does not allow the tenant to occupy or use the Property and does not prevent the Landlord dealing with or otherwise occupying or using the Property.
As I understand, this part of the agreement is a contractual obligation on us but cannot change the status of the AST in law.
You will observe that storage of possessions within the property during the retainer period is permitted by the contract - this is because in clause 2.5.2 you can see the Landlord's liability for such storage has been limited as well as the terms upon which such items can be stored agreed - (placing them on a bed in one room, labelling them 'New Tennant's Contents' etc.). The agreement makes it clear that liability for any utilities falls squarely on us as the tenants.
2.5.2. If the tenant leaves personal possessions at the property during the summer period, any items left are at the tenants’ own risk. The property will not be checked by the Landlord on a regular basis and be aware that work may need to be carried out and contractors may be attending the property. Personal possessions are to be stored in one room only, on top of the bed once the tenant has checked the mattress and base for faults. All items must be clearly labelled as “NEW TENANTS BELONGINGS”.
2.5.3. The tenant is responsible for bills during the retainer period under clause 3.2 of this agreement.
2.5.3. The tenant is responsible for bills during the retainer period under clause 3.2 of this agreement.
1. the existence of an AST, and the legal rights such an AST confers, from 1st July,
2. the ability to store belongings during the retainer period, and
3. the requirement to pay the utilities of the property from 1st July onwards
All qualify the restrictions of clause 2.5.1 not to USE the property in such a way that two specific types of use are permitted, and indeed, required, in the context of storage and bill paying respectively.
To that end, I would argue that in order to use the property for these purposes, we as the tenants should not be unduly prevented ACCESS to the property at any point during the summer months, so long as the keys are returned before each night to ensure we are not occupying the property to live.
Considering the argument above, and also the fact that our landlord will take rent receipts on the property of £1200 during this retainer period, I find it unreasonable, and in my interpretation, unlawful, that the Lettings Agent has declared that each of us may ACCESS the property only on one single occasion during the retainer period, on a date and a time which they must agree or even choose themselves, additionally requiring a £20 deposit to discharge the keys on condition that they are returned the same day during their office hours, else the £20 is forfeit. They are essentially seeking to completely withhold all right of access to the property but for a tiny window that suits them, when they are not entitled to deprive that right.
For example, as the bill payer - I will need to attend on 1st July to take opening meter readings for the utilities and believe I have a right to verify any readings provided by the Agent by physically checking the meters inside the property. However, I will be working all day and only able to access the property outside of office hours for a few minutes. If I agreed an alternative day to access the property, I would fall foul of the landlord by submitting readings that were not taken at the start of the period for which we become responsible. Presuming they insist only to discharge the keys on 1st July, I do not even know that I will able to collect them at all and certainly cannot return the keys on the same day as they insistently are requiring, and I will therefore incur the penalty. Additionally, I will not be able to take any subsequent readings until September or arrange the change in suppliers that the Tenants have agreed on until then. If a supplier requests a reading for any other reason during this retainer period, I will not be able to provide it and will fall foul of my obligation to manage the utility affairs. Further will not be able to set up, install and verify the functionality of the phone and broadband until September when it will be immediately needed, disadvantageous to the household. Nor will I will not be able to access the property at any other time to move possessions in.
One of the other Tenants who lives a fair distance away would like to move in gradually over the summer, rather than carry an inordinate number of possessions on public transport across the country in one go. Only permitted to access the property once, this will prove impossible.
This pettiness by the agent is causing considerable practical problems for us. Problems I think are unnecessary and completely unforeseeable from the Tenancy Agreement. The limitation, and in withholding of access seems to be completely disproportionate and unlawful. They have taken the agreed meaning of the retainer period as precluding all use, occupation and access of the property, when in fact as I have reasoned, and interpreted when I signed the agreement, should only mean that most types of use are precluded, with two forms of use permitted excepted, as qualified in the subclauses, and that while occupation is restricted, access ought not to be as the contract does not expressly preclude access and in fact requires it, if nothing else, for the purpose of dealing with utilities.
Further, as I reasoned at the start, even if in extreme and bizarre circumstances, a Tenancy Agreement did directly and expressly preclude access, the tenants should not in fact be prohibited from that access because it is a fundamental legal right that accompanies Assured Shorthold Tenancy until such time that the Tenancy comes to an end. The restriction would be a restriction in the eyes of contract law only.
In other words, the agent or landlord even then would not be allowed to proactively stop the tenants from gaining access, and would still be required to discharge the means of access to the tenants (the keys), but would be able to take action in contract against the tenants for breaching their agreement, possibly as a civil matter or eviction proceedings.
The second issue concerns the new Tenant Fees Act. I would like to know when the tenancy could be argued to be granted - as to ascertain whether the TFA is immediately applicable to this tenancy. As many of you will be intimately aware, the No. 3 regulations brought the core of the Act into force on 1st June but only applicable prospectively from that point. Therefore, any pre-existing grants of tenancies to which the Act pertains will not enjoy the benefit of the Act until 12 months after that point - 1st June 2020.
The £20 contingent deposit on the keys during our retainer I've just mentioned is an example of something that would be prohibited under the Act, if I am not mistaken. As would be some other charges in our Tenancy Agreement. You will understand our anxiety in the hotly contended housing market of Manchester to secure a home for next year. Therefore, missing out on the alleviation brought forth by the TFA is a risk which I foresaw and was, and am, still prepared to bear if indeed the tenancy proves to be granted before the 1st June.
However, the opening section of the Tenancy Agreement already copied above makes for interesting reading in the context of what I have been discussing. Namely that 'this agreement is an offer of a tenancy and becomes a tenancy when the following conditions have been met 1.) Both the Tenant(s) and Landlord have signed the agreement 2.) Possession of the property has been granted to the Tenant(s)'.
A previous tenant held my place on the agreement which was signed back in September. They however came to other arrangements and paid to exit the tenancy early. Since it was a Joint Tenancy, all three had to surrender the tenancy which was novated and redrafted. Although it can be admitted that the Agreement in this second carnation is dated the 8th May, it was not signed by all parties until 14th May. The initial deposit guarantee was cancelled, and the exiting tenant refunded. I paid in her place; however the two others received conflicting information and were asked to repay their guarantees. It was eventually conceded that they did not in fact have to pay but we received numerous emails during this time stating that 'the tenancy is not secure' until the issue was resolved. We received an email on the 4th June stating the process was sorted and that the tenancy was only then 'completed'.
My question then, I suppose - what exactly does 'grant' mean? You can have at least three different interpretations. Does it mean simply authorised for a future date?, Perhaps it occurs on the the date the tenancy commences? or could it even mean the data that tenants have full right of occupation and possession? I personally err to the second - but you can see how reason alone is unable to differentiate the correct from the wrong. But I've found little case law of statute dealing with this point.
If it means the first, then it will be the agent's contention, if any TFA issues arose, that the lease was granted when both the agreement was signed by all parties, and the final deposit was paid, as full payment of the deposit by all three tenants was the only condition on which the lease was to be granted after we had signed. As I was the last person to pay on the 20th May, they would argue this as the grant date, thus protecting themselves from the TFA. Conversely, I would reason that it was not authorised until we received communication of such on the 4th June. Even if we had all paid before the end of May, we had all received communications warning that the Tenancy was not secure, on multiple occasions, even if this was because of mistakes made in their handling of the novation of the tenancy and the handling of the group deposit scheme.
If granted means the second definition, our lease is to be granted on the 1st July. If it means the latter, I would argue it not to be granted until 1st September because the contract states the lease is granted on condition of occupancy, and the retainer clauses preclude occupancy until 1st September. This distinction is academic as in both cases the grant would be said to take place after the TFA began to apply.
Again, it would be interesting to hear thoughts on this, as I think a firm grasp on when tenancies are granted could be of assistance to tenants, as agents will invariably be trying to define the grant points as early as possible.
For the sake of clarity, I intend to respond to the agent's approach to the main issue with common sense and try to negotiate around it in the first instance, however, considering the attitude of most agents; having some legal clarity or opinion to fall back upon would bolster any argument significantly. This is not an area of law with which I am intimately familiar, and if I have made any mistakes in interpreting it, I am happy to concede as such which is why I first pose the question here.
Many thanks.
