Is modifications in a standard AST legally binding for non payment of rent ? **RESOLVED**

[Aequitas]

Information on the other forum is that the lease is for 5 years but not granted by deed. That means the lease is void. What the tenant has is probably a periodic lease on the same terms as set out in the lease. That should help the OP sort the problem.

Edited January 15, 2022 by Aequitas

[Aequitas]

7 hours ago, stu007 said:

@ Aequitas you need to read the other forum correctly as nowhere does it states it is a Lease yes they state AST and 5 years but nowhere do they state it is a Lease that is your opinion which is wrong. the Home Office.

 

There is a confusion of terminology here. When it comes to documents granting tenancies they are either described as "tenancy agreements" or "leases". However, though the former is generally used to describe an instrument granting a tenancy for three years or less and the latter to describe an instrument made by deed granting a tenancy for more than three years, they are not "terms of art", that is words or phrases with set meanings. The word "lease", though perhaps primarily used to refer to a document. also refers to an interest in land so that "lease" and "tenancy" mean the same thing, that is a leasehold interest.

 

Any purported grant of a tenancy for a term exceeding three years is void as provided by section 52(1) of the Law of Property Act 1925:

 

All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed.

 

By way of clarification:

 

Section 205(1)(ii) says:

 

“Conveyance” includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of an interest therein by any instrument, except a will

 

Section 52(2) says:

 

This section does not apply to [...] leases or tenancies or other assurances not required by law to be made in writing

 

That is clarified by section 54(2) which says:

 

Nothing in the foregoing provisions of this Part of this Act shall affect the creation by parol of leases taking effect in possession for a term not exceeding three years (whether or not the lessee is given power to extend the term) at the best rent which can be reasonably obtained without taking a fine

 

(For your information I post as Lawcruncher on LLZ)

 

[Aequitas]

I have a text book entitled "Introduction to Land Law" published by Butterworths, a recognised legal publisher. In an introductory chapter under "Terminology" it says:

 

As regards the granting of a lease, the term "to demise" is sometimes used as an alternative to "to lease". Similarly, as regards the interest granted, a lease is sometimes termed a "demise". A lease may also be termed a "tenancy". Generally "tenancy" is used in connection with a shorter period (e.g. weekly or monthly tenancy); "lease" for a longer period (e.g. a seven-year lease). But a lease, a demise and a (leasehold as opposed to feudal) tenancy are in law all the same creature.

 

The first paragraph of a later chapter headed "Leases" - note "leases" not "tenancies" -  says:

 

L grants T the right to occupy land in return for an agreed sum of money. Provided that certain conditions are satisfied, the right which L has granted T is a lease.

 

I think the above makes it clear that, when talking about the interest granted, a tenancy and a lease are the same thing. If you are not convinced, Section 52(2)(d) refers to both leases and tenancies. So, even if you insist that the OP granted a tenancy and not a lease, it must apply.

 

 

[Aequitas]

Two points of clarification for axi123:

 

Whether a tenancy is an AST depends entirely on whether the statutory conditions are met. You cannot make a tenancy an AST by saying in the tenancy agreement that it is an AST. Equally, a tenancy can be an AST without the tenancy agreement saying it is, though it is possible to provide for a tenancy not be an AST by including in it a statement to the effect that it is not an AST. The agreement with Mears could not have led to an AST because the tenant under an AST must be an individual.

 

If A grants a tenancy to B, B can grant a tenancy of the same premises or part of them to C so long as the term is shorter than the term granted to B. the second tenancy is subtenancy.

[Aequitas]

The status of the tenancy, whilst not strictly relevant to the rent problem, is otherwise relevant. If the grant of the tenancy was void it does rather pull the carpet from under Mears' feet.

 

Legal opinion is divided on what the position is on the purported grant of a tenancy for more than three years not made by deed. The possibilities advanced include:

 

· There is no tenancy at all.

·  If the tenant goes into possession there is a periodic tenancy. (There is a question mark in this case as to whether Mears are in possession.      Possession includes collecting rent from a subtenant, but is it not clear if Mears grant tenancies to the asylum seekers.)

· The purported grant operates as an agreement to grant a tenancy.

 

Whatever the position, Mears have a bit of a problem.

 

Apart from the above, Axil23 does not want to be asking any questions as he may give a hostage to fortune by implying that he agrees he owes something. He should write to Mears saying:

 

1. The agreement is void to grant a term of five years as it was not made by deed.

2. I do not owe you anything as, apart from anything else, you have not followed the procedure set out in the agreement.

3. If you do not pay the outstanding rent forthwith I shall terminate the arrangement.

 

Nothing else needs to be said. Important rule in correspondence: Never say more than you need to.

[Aequitas]

If you have already written imposing a time limit then wait for a reply or until the time limit has expired. If they reply and concede then all is well. If they do not reply or maintain their position, write and say that since writing your previous letter you have taken legal advice and been informed that the agreement is void to grant a term of five years and otherwise as suggested in post 46.

[Aequitas]

Why is it necessary to read the sections as enacted? What is relevant is the law at the time the document was signed. There have been no changes to the sections since the document was signed. In any event such changes as have been made do not affect the question of whether a deed is needed for the grant of a tenancy exceeding 3 years to be valid at law.

[Aequitas]

Post 37 was addressed to 

6 hours ago, stu007 said:

These were referred to in the post stated in my post and to clarify to the OP that they need to read both the Enacted version and the Revised version of the Sections that were referred to in the Law of Property Act 1925 that you stated as I prefer to provide actual website links so the OP can read these for themselves to make there own informed decision on how to proceed.

 

 

 

Post 37 was addressed to you rather than the OP as in post 36 you said I had read the thread on LLZ incorrectly and that my opinion was wrong. I have no problem with that as I am sure it was what you believed to be the case. Post 37 was to persuade you that I had read the post correctly and that my opinion was sound. I set out what I believe to be a cogent argument that the law was as I said it was. You expressed the view that I was confused and I responded with further clarification to which you have not responded, which of course you have no obligation to do. If you still believe my opinion is incorrect then I refer you to this article in the New Law Journal written by a barrister and professor of law.

 

The status of the lease is something of a side issue, but still important. If it is the case that Mears do not have a lease valid at law it has to be worth the OP mentioning it to them. One would hope they would back off if they realised they had an invalid lease.

 

Ignoring the status of the lease:

 

Without doubting your good intentions and with respect to you and others who have commented, you have not homed in on the key issue and have made suggestions which are inappropriate. The key issue is that Mears have not followed the procedure set out in the lease they drafted and therefore nothing is payable. That is all that needs to be said, at least to start with. If you ask for invoices to justify the amount demanded you are in danger of conceding you owe something. At a later stage, if Mears come up with an arguable case, it may be appropriate to query the amount, but if you do you need to do it carefully so that it is clear you deny you owe anything.