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Has the tenancy agreement been given to the tenant to date? Has the tenant paid any rent or a deposit please?
The tenant has had the agreement via our agents but having read it in more detail the contract which I signed has been written by BMW, the tenants employer. We haven't as yet received any deposit but the tenant does have the keys but as yet hasn't moved in yet.
Can you kindly clarify please - what do you mean it has been written by BMW? Do you mean the tenant is BMW?
My apologies, yes the tenant is an employee of BMW. He is in the country for 3 years and BMW are paying for his accommodation here in the UK
Thanks - I had read between the lines to that extent. Sorry for not being clear. What I was hoping is that you could clarify what you mean by BMW has written the agreement? What aspects in particular are you unhappy with re the agreement you signed?
The agreement doesn't really protect me as the landlord, there are service agreements in there, ie, we are to provide gardening equipment, lawnmower and also maintain the grounds. There is also a clause where by if the tenant reports a problem and we do not act immediately then he has the right to deduct money from us at a rate of £10 per day until such time that the fault is addressed. The tenant hasn't moved into the property yet and is already demanding that we clean all the carpets in the house and if this is not done then he will arrange for professional cleaners to carry out the works and deduct this from the first months rent.
Thanks. Did the agents advise you that the agreement was prepared by the tenants employer and therefore you should check it carefully? Why has the tenant been given keys before he has signed the tenancy agreement and paid a deposit?
Finally do you know if the agents used the phrase "subject to contract" prior to negotiations and for the avoidance of doubt they have passed your signed part of the contract to the other party?
We were aware of the contract being written by BMW but our letting agents legal department only drew our attention to 1 item which they thought should be omitted, which we have since realised, they hadn't. It does not say subject to contract and yes they have passed the signed contract onto the tenant
Thanks. based on what you say I regret this is likely to be very difficult to withdraw from I fear. It is possible to withdraw from a contract prior to it being finally exchanged if the agents have used the phrase "subject to contract" on correspondence with the tenant but the fact that your signed part has been sent to the tenant and that they have provided him with the keys can both be evidence to show that a contract has come into being. It would be brave in deed to believe that a court would not enforce this contract I fear at this stage.
You may contact the tenant and advise that you no longer wish to rent the property to him or wish to agree an alternative tenancy agreement but if he refuses he is likely based on the above to be able to enforce the terms of the tenancy I regret
If he does, he must pay any deposit and rent as required under the tenancy or you have a claim against him. In terms of the clauses you have identified, a tenant can as a rule not expect better from a landlord than he can achieve as a homeowner - e.g. if a boiler breaks down a landlord cannot be expected to perform better than anyone else in having it repaired but if a specific clause has been agreed regarding compensation this may be recognised by the courts.
If the agents were advising you in respect of the agreement, you may raise the issue with them as a complaint as their actions appear to have potentially prejudiced your position. Normally a landlord would expect 1) the tenant to sign the contract first and 2) would not give the keys to a tenant before receiving a deposit.
If they are a member of an ombudsman you may consider raising a complaint with the agents and then of the Ombudsman if you are unsatisfied.
Finally, we have since learned from the building society to which the property is mortgaged that we are not allowed to use the property for renting as set out in their terms and conditions of borrowing.
If we were to make the tenant aware of this what implications if any do we face?
In deed. You will need a buy to let mortgage product in order to let the property normally. It is a breach of your mortgage conditions to do otherwise. The tenancy is still valid but the lender could ultimately repossess though practically they are unlikely to try if repayment are up to date and a court would be very reluctant to grant possession in such circumstances.
You may consider asking the lender for a switch to a buy to let product to regularise the position particularly if the lender is aware you are letting
Is there anything above I can clarify for you any further?
No that's fine. You have been most helpful and I thank you for that.
A pleasure. I hope the tenancy if it goes ahead is smooth and successful.