What's My Position?

[frankief]

So, I took on the rental of a place a few months ago, private landlord, I was in a bit of a rush to find somewhere near my new job.

Was a bit of a relaxed arrangement ‘stay as long as you like, just give me the one month’s notice if you want to leave’. This after I’d mentioned I might be looking to buy in the near future if prices came down!

I did sign an ‘agreement’ for an AST – but it’s basically a one page form from the internet only giving our names / addresses and signatures and stating the monthly rental and deposit. The term isn’t even defined and the form wasn’t filled in correctly as it says ‘1 month’. Start date yes, no finish date given.

BTW the cash deposit is not in a secured scheme – I got a signed handwritten receipt!

Now the LL has started to worry me, his nephew can’t find a suitable place and needs to move next month, and I had said I was maybe not staying that long anyway etc. have you found a house to buy yet etc?

I cut the conversation short and said don’t worry I would give a month’s notice when I am ready to leave, not before.

Anybody know where I stand if he wants me out? Two months written notice from next rent day surely, at the very least?

Please provide me with some ammo if he carries on with this – he's not been a bad LL but I don’t want to be in a position of moving in a hurry to somebody else’s deadline.

[StainlessSteelCat]

I have been in a similar position. If he tells you he wants you out - insist on two months notice in writing - and tell him it's a legal requirement. I did this under similar circumstances and the landlord accepted it (probably because they didn't want any attention from the authorities).

Regarding your deposit, you have a few options.

1. You might drop some hints about which tenancy deposit scheme it is in - and gently point them in the direction of the relevant pages on gov.uk. I did this, and my landlord simply returned my deposit immediately (several months before I was due to move out) to avoid "hassle".

2. Hope for the best. I, or rather the missus, did this with a previous landlord who was nice as pie throughout the tenancy - and then turned into an absolute **** claiming all kinds of damage that we hadn't caused (but with no inventory) and confiscated the lot. Frankly, he gambled I wouldn't take him to cleaners for not using a TDS or returning my deposit - and gambled correctly as I couldn't be bothered with the hassle. I can only wish a "professional" bad tenant on him next time.

3. Don't pay the last month. He'll likely moan - but given the above, likely do nothing.

4. Take them to court etc if you don't get the deposit back. Could be rather painful for the landlord given they have not used a TDS. Again with regards notice - you can push the point and simply wait for them to evict. It'll take more than two months, and likely be fairly expensive for them.

Personally, I would assume the worse - and that you will not see that deposit again, but might well get the full two months notice - and prepare accordingly. The only thing worse than a letting agent is a clueless landlord with £££ in their eyes (and that's most of them).

At the very least, if they give you hassle - shop 'em to HMRC as there's a good chance they are unaware of an tax obligations too.

Edited August 10, 2015 by StainlessSteelCat

[moesasji]

@frankief: it is definitely worth looking at the stickies in this forum-section regarding non-protection of your deposit and in this one is hilarious reading.

Assuming that your position counts as an AST (and I think it does) your landlord is obliged to protect your deposit. As he hasn't done so they are liable for 3x the deposit and moreover can't actually evict you. Non-protection of a deposit automatically invalidates an S21.

Edited August 10, 2015 by moesasji

[This time]

I believe that in the absence of a proper rental agreement that you are automatically on a standard six month AST with all of the standard rights and responsibilities under the Housing Act.

[nickincash]

OP - it sounds as though you have an Assured Shorthold Tenancy (AST). I'm assuming you are in England or Wales.

You say that the contract incorrectly says ‘1 month’. Was this given as the duration of the tenancy? This would be perfectly valid. It is important what it says in writing - the landlord can't argue that it's wrong.

In any case the landlord cannot get a possession order in the first six months.

He needs to serve you a Section 21 notice if he requires possession which must give at least two months notice and then must obtain a possession order through the courts.

I don't understand why 'This time' thinks you haven't got a proper rental agreement.

[This time]

"I did sign an ‘agreement’ for an AST – but it’s basically a one page form from the internet only giving our names / addresses and signatures and stating the monthly rental and deposit. The term isn’t even defined and the form wasn’t filled in correctly as it says ‘1 month’. Start date yes, no finish date given."

Doesn't sound like a proper rental agreement to me.

[This time]

He also can't issue a section 21 unless your deposit is protected.

[spacedin]

I have been in a similar position. If he tells you he wants you out - insist on two months notice in writing - and tell him it's a legal requirement. I did this under similar circumstances and the landlord accepted it (probably because they didn't want any attention from the authorities).

Regarding your deposit, you have a few options.

1. You might drop some hints about which tenancy deposit scheme it is in - and gently point them in the direction of the relevant pages on gov.uk. I did this, and my landlord simply returned my deposit immediately (several months before I was due to move out) to avoid "hassle".

2. Hope for the best. I, or rather the missus, did this with a previous landlord who was nice as pie throughout the tenancy - and then turned into an absolute **** claiming all kinds of damage that we hadn't caused (but with no inventory) and confiscated the lot. Frankly, he gambled I wouldn't take him to cleaners for not using a TDS or returning my deposit - and gambled correctly as I couldn't be bothered with the hassle. I can only wish a "professional" bad tenant on him next time.

3. Don't pay the last month. He'll likely moan - but given the above, likely do nothing.

4. Take them to court etc if you don't get the deposit back. Could be rather painful for the landlord given they have not used a TDS. Again with regards notice - you can push the point and simply wait for them to evict. It'll take more than two months, and likely be fairly expensive for them.

Personally, I would assume the worse - and that you will not see that deposit again, but might well get the full two months notice - and prepare accordingly. The only thing worse than a letting agent is a clueless landlord with £££ in their eyes (and that's most of them).

At the very least, if they give you hassle - shop 'em to HMRC as there's a good chance they are unaware of an tax obligations too.

Personally I would leave the deposit and just move out. Once you've moved out, take them to court to recover the deposit. If the landlord hasn't protected it he won't have a leg to stand on.

However if you raise the non-protection of the deposit issue during the tenancy, he can pay the deposit back I think and that removes his liability. You'd basically be doing him a favour.

Regards notice, the notice period starts from the day of the month that you paid the deposit, so if that date has already passed, it'll be the date on the next month. E.g. it's the middle of Jun. You paid the deposit on 8th January, the notice therefore must start on the 8th of July.

[nickincash]

"I did sign an ‘agreement’ for an AST – but it’s basically a one page form from the internet only giving our names / addresses and signatures and stating the monthly rental and deposit. The term isn’t even defined and the form wasn’t filled in correctly as it says ‘1 month’. Start date yes, no finish date given."

Doesn't sound like a proper rental agreement to me.

It does to me.

What do you think is missing from it that makes it not proper?

The OP undoubtedly has a tenancy. The bit of paper isn't important anyway.

[This time]

It does to me.

What do you think is missing from it that makes it not proper?

The OP undoubtedly has a tenancy. The bit of paper isn't important anyway.

It doesn't have some of the information that should be in a tenancy agreement e.g. end date of tenancy:

https://www.gov.uk/tenancy-agreements-a-guide-for-landlords/what-you-should-include-in-a-tenancy-agreement

I also assume, since it hasn't been mentioned, that the agreement does not state that it is not an AST and that there has been no official notice that it is not an AST, that the OP has not rented the property as a company, that the rent is not below £250 (£1,000 in London) or above £100,000 per year, that the landlord does not live in the proerty, and that the tenancy does not predate 1989.

Anyway, we both agree that it is an AST and that therefore the OP has security of tenure for six months and has a right to two months notice to expire on the date that the rent is due.

[nickincash]

It doesn't have some of the information that should be in a tenancy agreement e.g. end date of tenancy:

https://www.gov.uk/tenancy-agreements-a-guide-for-landlords/what-you-should-include-in-a-tenancy-agreement

I also assume, since it hasn't been mentioned, that the agreement does not state that it is not an AST and that there has been no official notice that it is not an AST, that the OP has not rented the property as a company, that the rent is not below £250 (£1,000 in London) or above £100,000 per year, that the landlord does not live in the proerty, and that the tenancy does not predate 1989.

Anyway, we both agree that it is an AST and that therefore the OP has security of tenure for six months and has a right to two months notice to expire on the date that the rent is due.

OK - I'm glad we agree on something.

To cover your other points:

the OP has not rented the property as a company

I think that's a fair assumption.

the rent is not below £250 (£1,000 in London) or above £100,000 per year

I think this is unlikely.

the landlord does not live in the proerty

I was assuming not but if he is then it won't be an AST.

the tenancy does not predate 1989

We know this - the OP said "I took on the rental of a place a few months ago".

It doesn't have some of the information that should be in a tenancy agreement e.g. end date of tenancy

No it doesn't but it may or may not state the duration. The OP said "The term isn’t even defined and the form wasn’t filled in correctly as it says ‘1 month’. Start date yes, no finish date given.". So is 1 month the duration?

Without knowing the complete text of the document it's impossible to say but an AST doesn't have to be for a fixed term and could be a contractual periodic tenancy from the start.

Making the above assumptions are we agreed that the landlord cannot gain possession in less than two months?

[This time]

The point I was making is that if the agreement doesn't specifically state that it is not an AST, and does not fulfil any of the criteria I mentioned, then without a specified end date it is a standard six month AST. But yes, the OP is at least entitled to two months notice to expire on the date the rent is paid.

[Damocles]

The point I was making is that if the agreement doesn't specifically state that it is not an AST, and does not fulfil any of the criteria I mentioned, then without a specified end date it is a standard six month AST.

Not quite. The position is as set out in section 21(5) of the Housing Act 1988:

Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than—

(a) in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and

(b ) in the case of a replacement tenancy, six months after the beginning of the original tenancy.

That means that the landlord is not entitled to possession until six months after the tenant first goes into occupation. The tenant, however, is not bound to a six month month tenancy if a tenancy for a shorter period is granted.

Edited August 23, 2015 by Damocles