This is one of the searches that an optimistic Landlord Law Blog reader put into Google before arriving at this site.
The answer is (in most cases) YES.
However it does illustrate a belief that some people have which is that you cannot have a proper tenancy unless a tenancy agreement is signed first.
Which is actually not true.
A tenancy is a type of ownership of land (yes really) and normally you cannot pass title to land without some form of deed or conveyance document. Which is what a tenancy agreement is.
However s54(2) of the Law of Property Act 1925 makes an exception if
- the tenant has actually moved in
- they are paying a market rent
- they have a fixed term of not more than three years, and provided that
- they have not paid a ‘premium’ or ‘fine’
So if you have let John Smith into a flat ‘on approval’ on the basis that you will give him a tenancy agreement (and by implication, the right to stay) after two months if he behaves himself – he ALREADY has a tenancy and the right to stay.
He acquired a tenancy the moment he moved in and paid his first rent payment. So:
Landlords – it is essential that you get tenants to sign their tenancy agreement before they move in – it may be too late otherwise
Tenants – if you don’t have a written tenancy agreement you still have a proper tenancy and cannot use the lack of a written agreement as an excuse for not paying your rent.