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What happens if you don’t have a tenancy agreement?

What if?Most tenancies are created by tenants signing a tenancy agreement before they go in and almost all tenants have them.

But not all.

What is the situation when a tenant is not given a tenancy agreement?

Here are the main points:

The tenant has a tenancy

You can’t prevent a tenant from having a tenancy just by not giving them a written tenancy agreement.  As soon as they go in and start paying rent, a tenancy will be created under s54(2) of the Law of Property Act 1925 (which sets out the circumstances under which a tenancy agreement is not needed for short lets).

However such a tenancy is inadvisable as it will be harder for you to prove what the terms are.  If you have a written tenancy agreement which says the tenant is paying £900 per month rent – there can be no argument.  But if there is NO written document you may find it hard to  prove that the agreed rent is not something else.

(Note that there may be some situations where a tenancy is not created – eg with some family arrangements)

Landlords are still bound by their statutory duties

In particular landlords are bound by their repairing obligations from s11 of the Landlord & Tenant Act 1985.

Landlords are also bound by the Protection from Eviction Act 1977 which says that they can only evict a tenant if a possession order has been obtained first.

All the landlord and tenant related regulations will also apply – for example

  • The Gas Regulations
  • The Furniture and Furnishings regulations
  • The various consumer safety regulations

Local Authorities will still retain all their powers, for example under the Housing Act 2004 in relation to HMOs and the Housing Health and Safety Rating System.

Landlords will be unable to make deductions from tenancy deposits

A tenancy deposit is money which belongs to the tenant.  So for a landlord to be able to make  deductions from it – this needs to be authorised by a signed agreement, the tenancy agreement.

If there is no tenancy agreement therefore, then there is no authority for the landlord to make any deductions from the tenancy deposit – no matter how dreadful the condition of the property when the tenant moves out.

If he tries to make any deductions, any challenge made by the tenant will succeed at adjudication.

Landlords will be unable to use the Accelerated procedure for possession

This is the more convenient court procedure used for section 21 claims.

However, as it is a paper based procedure it can only be used if the proper paperwork is available.

If there is no tenancy agreement, the landlord will have to use the standard court procedure and attend a hearing so they can explain to the Judge why there is no written agreement.

Tenants will still have obligations

There are a few specific statutory obligations:

  • They should allow landlords inspection rights under s11(6) of the Landlord & Tenant Act 1985
  • They will not be able to assign or sublet the property without the landlord’s consent (s15 Housing Act 1988)
  • They will not be entitled to carry out any improvements or alterations to the property without the landlord’s written consent (s81 Housing Act 1980), and

In  addition, tenants will be under a general duty to act in a ‘tenant like manner’ (as described by Lord Denning decision in the 1954 case of Warren v. Keen).

Conclusion

Although as you can see, there will be a tenancy and the parties will still have rights and obligations – it is not a satisfactory situation.

The main disadvantages are for the landlord, although tenants will experience problems if they want to claim housing benefit.

Landlords should be careful therefore NEVER to allow tenants into a property until they have a tenancy agreement signed by all the tenants.

If you are not sure which tenancy agreement to give them >> click here.



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6 Responses to What happens if you don’t have a tenancy agreement?

  1. Without a tenancy agreement, with the L/L’s address clearly written on it, there may also be a problem with any demand for rent.

    s.48 Landlord and Tenant Act 1987 – Notification by landlord of address for service of notices.

    (1)’A landlord of premises to which this Part applies shall by notice furnish the tenant with an address in England and Wales….’

    (2)’Where a landlord of any such premises fails to comply with subsection (1), any rent or service charge otherwise due from the tenant to the landlord shall …. be treated for all purposes as not being due from the tenant to the landlord….’

  2. ….it should be added, that when an address is eventually provided, then rent does become due….so any tenants withholding rent due to s.48, should NOT spend it but keep it aside ready for a time when the L/L does give his/her address.

  3. Thats very true – although you can serve a separate s48 notice, it does not have to be in the tenancy agreement. But a tenancy agreement is the best and usual place for it.

  4. We are finding quite a rise in the number of “landlords” without tenancy agreements due to the fact there is an increasing number of people who rent to family members / family friends – with an informal agreement for the “tenants” to pay the bills and/or cover the cost of the mortgage. It is a very sensitive situation so by the point we are contacted there is usually a significant amount of debt, in one case 12 years of unpaid rent.

  5. I had forgotten about family arrangements, so have added a line on this in the post.

    Often in family situations a court will find that there is no intention to create legal relations so there will not be a tenancy.

    If you are renting therefore to a family member and WANT it to be a tenancy, it is particularly important that a proper tenancy agreement document is provided.




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About the post author:

Tessa Shepperson

Tessa is a lawyer specialising in residential landlord and tenant law. She runs the Landlord Law website (now in its 12th year) and is a director of Easy Law Training Ltd and Your Law Store. Tessa also sits on the Property Redress Scheme Council. When not working she enjoys reading, cooking and messing around on the computer. You can also find her on Google



The Landlord Law Blog from Tessa Shepperson

Tessa is an English lawyer specialising in residential landlord and tenant law.


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