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Uncertainty About Tenancy Agreements Approaching 1 October

We have been asked a lot of questions recently about how to draw up a tenancy agreement in the run up to 1 October.

The short answer is that it does not really matter. Tenancies that will become ASTs on 1 October will become ASTs on that date irrespective of what the actual agreement says. Equally, they will not be ASTs before that date irrespective of the wording on the agreement.

Therefore agents can draw up these tenancies on Common Law Agreements now and accept that the agreement will misdescribe itself from 1 October or they can draw them up as ASTs now and accept that the agreement will misdescribe itself until 1 October. Alternatively, the agreement can state that it will change to an AST on 1 October or a new agreement can be issued on that date. All of these are reasonable approaches and each agent and landlord should decide what works best for them. Anyone purporting to sell some form of agreement that will deal with the situation is really just taking money for old rope and this is the reason that this firm has chosen not to produce a special tenancy agreement to cover the transitional period.

What will be necessary for members of The Dispute Service will be to make sure that the prescribed clauses required by the scheme are incorporated into the Agreement after 1 October. This can easily be done by sending the tenant a letter setting out the clauses and stating that they will be incorporated into the agreement. It would be wise to ask the tenant to sign and return a copy for recording purposes.

Don’t forget that when the deposit is registered a copy of the registration certificate, the information required by the Housing (Tenancy Deposit) (Prescribed Information) Order and the appropriate scheme leaflet must also be sent as well.

4 Comments

  • Peter Smith 1st July 2010 at 6:02 pm

    “and the appropriate scheme leaflet must also be sent as well” Why? Surely the Prescribed Information is sufficient. Unless the scheme insists that the leaflet goes too – which is bureaucracy and excessive paper for its own sake.

    I’m sure My Deposits doesn’t insist in this.

    • PainSmith 1st July 2010 at 8:36 pm

      Section 213(5) of the Housign Act 2004 requires the landlord to give the tenant and any relevant person such information as “may be prescribed”. That information is set out in the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 and Paragraph 2(1)(b) of requires that “any information contained in a leaflet supplied by the scheme administrator” is given to the tenant. Both the insured schemes (MyDeposits and The Dispute Service) supply such a leaflet.

      As we have commented before on this blog this leaflet is frequently not supplied and a failure to do so raises the possibility of the tenant or relevant person making a claim for the usual penalties.

  • Red Clam Ltd 21st July 2010 at 12:34 pm

    Are company lets subject to the same changes

    • PainSmith 21st July 2010 at 12:49 pm

      No. Company lets are not lets to individuals and the tenant also does not occupy the property as their principal home. They therefore fall outside the Housing Act 1988. This is not changing.

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