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Ash
Ash, Solicitor
Category: Property Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I am one of four tenants living in a property in London, UK,

Customer Question

I am one of four tenants living in a property in London, UK, let through an agency. We have a joint and several fixed-term assured shorthold contract (12 months, with a six-month break clause on 1 April requiring a two-month notice period, and two-month's notice to be given during the second 6 months). The contract has been renewed on the same basis on 1 October every year since 2010 and I have lived in the property since April 2011 when the contract was assigned from the four joint-tenants at the time to three of those tenants plus myself.

On four occasions since then changes of tenant have been effected through completion of a License and Deed to Assign. On most occasions this was for one of the joint-tenants to leave and a new tenant to join the remaining three. At the end of 2013 the letting agency was bought-out by another agency, but are still trading under their former name, etc.

Our contract contains a clause stating that we must "not to assign... all or part of the premises [to] any other person without the Landlord's or the Agent's prior consent, which will not be unreasonably withheld." The process for assigning the tenancy to new tenants is set out in the agency’s handbook for tenants. This gives instructions on what tenants need to do to assign part of the tenancy to new tenants specifically in the circumstances of one party of a joint tenancy wants to move out and assign their portion of the contract to a new tenant.

We recently contacted the agency to notify them that one of the tenants would like to move out and requesting permission to assign the tenancy to another person (plus three of the current tenants.

The agency replied that “the Landlord will allow this subject to conditions including but not limited to [the new tenant] having completed our referencing process and signed both a tenancy agreement produced by us and an inventory addendum. We must have received a correctly signed deed of surrender by the previous tenancy.”

When I queried whether we could complete a License and Deed to Assign, I was informed that “the procedure is now different and the Deed of Surrender will need to be signed in order to ‘surrender’ the tenancy so that a new agreement can be drawn up and signed.”

Given the guidelines in the agency’s handbook, the past precedent for changes in tenant to have been effected through a License and Deed to Assign, and the contractual clause that states that the Landlord's or the Agent's prior consent to assign will not be unreasonably withheld, I would like to know whether we have any grounds to fight for a License and Deed to Assign rather than signing a Deed of Surrender, and I’d be grateful to know what tenant rights may be lost or gained through each option.

Many thanks,

Jeff Steer
Submitted: 3 years ago.
Category: Property Law
Expert:  Ash replied 3 years ago.

Alex Watts :

Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.

Alex Watts :

Just to be clear the contract has been re-assigned before without any issue please?

Customer:

Thank you Alex,

Customer:

The contract was reassigned on numerous occasions, including some occasions prior to my joining the tenancy in April 2011, e.g.:

Customer:

February 2011 - two new tenants replaced two of the existing tenants.
April 2011 - I moved in, replacing one of the existing tenants
September 2011 - two new tenants replaced two of the existing tenants
April 2012 - one new tenant replaced one of the existing tenants
September 2012 - one new tenant replaced one of the existing tenants
February 2013 - one new tenant replaced one of the existing tenants

Alex Watts :

Ok - then my view is that you can fight this.

Alex Watts :

You have a history of the agreement being reassigned without any issue

Alex Watts :

Further given you have had the contract for some time and it has been renewed and tenant changes then the agent insisting on this deed could be considered unreasonable.

Alex Watts :

This is because you have had previous assignments and the contract for so long

Alex Watts :

Therefore I am of the view you should be able to assign rather than surrender.

Alex Watts :

It helps because of the previous assignments and length of tenancy

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

Thank you, XXXXX XXXXX useful to know. Is it possible to follow up this answer in due course once we have further made our case to the agency?

Alex Watts :

Of course. The question does not close and you can ask additional follow ups

Alex Watts :

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.


Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.


 


Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/

Customer:

Thank you very much Alex, this has been very reassuring. I will follow up with further questions if required, or just to let you know of the positive outcome (which I hope we'll have).

Alex Watts :

Yes. All the best

Ash, Solicitor
Category: Property Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
Ash and other Property Law Specialists are ready to help you
Customer: replied 3 years ago.

For Alex W:


 


Hi Alex,


 


Further to our earlier discussion about managing a change of tenant via a deed of assignment rather than a deed of surrender, could you advise the best approach.


 


Should we approach the agency or the landlord directly?


 


Should we simply state our case that we don't accept the need to complete a deed of surrender but request a deed of assignment based on the points made in your answer (i.e. past precedent, length of contract, no previous issues, contractual clauses, etc) and that ultimately we deem their requirement 'unreasonable'?


 


Thanks,


 


Jeff Steer

Expert:  Ash replied 3 years ago.
Yes you should write and set out your position. Say you have not done so historically and no reason to now.

Alex

Customer: replied 3 years ago.

Thank you.

Expert:  Ash replied 3 years ago.
Happy to help!

Customer: replied 3 years ago.

For Alex:


 


Further to our correspondence yesterday, I am forwarding you the response from the Agency and would be grateful if you advise on next steps. Collectively, we would much prefer to effect the name change by a Licence to Assign rather than a Deed of Surrender.


 


"Dear Jeff,


 


We are not denying the change of names on the tenancy. The process of changing the names to the tenancy are now different to those set out by Temples.


 


Now that Gordon & Co have bought Temples, we are operating under their terms and processes.


 


You are entitled to continue with the tenancy as it is which would mean that you are all joint and severally liable for rent but this would mean that the new occupier is not added to the tenancy and has no rights to the deposit at the end of the term.


 


If you are planning to continue with the name change as planned, the new occupier will need to pass referencing and sign a new agreement once the old agreement has been surrendered by the old collective of tenants by signing the deed of surrender.


 


Please let me know how you wish to proceed."

Expert:  Ash replied 3 years ago.
You need to say you are not and have no intention to surrender

You want to simply assign.

Alex

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