The Parties to the tenancy agreement
These are the landlord and the tenant. And perhaps in some cases, the guarantor (although guarantors are looked at later).
Perhaps the most important thing to say is that when you are writing the names of the parties on your tenancy agreement, you need to get them right. Make sure that all spellings are correct, and put the full name – Mr Andrew Smith rather than just A Smith.
You should ideally include all adults living in the property on the tenancy agreement. If their name is not on the tenancy agreement then you cannot sue them for rent if they don’t pay, and their status will be that of guest or lodger of the tenant.
People often ask about adult children. Should they go on? The answer is that it depends. If they are about to move on to college or a flat of their own in a few weeks or months, probably not. However, if they are going to be living at the property permanently and contributing to the rent, probably yes.
Even if they are not on the tenancy agreement as tenant, though, you may want to add the adult children as household members as discussed in the right to rent post on Day 6. And indeed any other occupiers of the property (such as carers) who are not tenants.
What about minors (people under 18) wanting to rent a property? Sometimes 16 and 17-year-olds will want to rent their own place. The main problem here is that people under 18 are legally incapable of owning an interest in land. The grant of a legal tenancy to a minor will take effect as a contract by the landlord to hold the property in trust for the minor.
This is not a really good idea so you should add an adult as a joint tenant (who can also act as a guarantor). Once the minor reaches 18, a new tenancy agreement can be signed in his or her sole name. Note, though, that although they cannot be a legal tenant, a minor can be responsible legally for the rent. So put them on the tenancy agreement but have someone else there as well.
The final tenant type to consider is limited companies. As discussed on Day 4, if the tenant is a limited company the tenancy will be a ‘common law’ one and not an AST. You need to be sure though that it really is a company. You can check them out at the Companies House online services.
Agents name given as landlord – this is sometimes done by agents, often with a view to protecting the landlord, but is generally not a good idea. Certainly not from the agent’s point of view as under agency law, if they are acting for an ‘undisclosed principal’ they will have personal liability to the tenant under the tenancy. Not something, I am sure, that they will want. There is nothing wrong with having the agents name on the agreement, but it should be as agent and not as the landlord.
People sometimes get very concerned where the freehold ownership of land is in joint names and only one of the owners is listed as landlord. However one of joint owners will be deemed to have authority to rent out the property on behalf of all the owners. So this is not a problem and does not (as some tenants hopefully suggest) mean that the tenancy is illegal and they don’t have to pay any rent!
Also, once the tenancy agreement has been signed a tenant is not entitled to challenge his landlord’s title. So even if it were illegal, there would be nothing the tenant could do about it. They are still liable for the rent (sorry!).
This leads on to the rather odd rule that a tenancy granted by a squatter can be perfectly valid – as between the squatter and his tenant that is – while it lasts. However, the real owner of the land will be entitled to evict the squatter at any time in the normal way, which will also end the tenancy (and when the bailiff comes he has the power to evict whoever he finds at the property).
The evicted tenant will then have a claim against the squatter/ landlord for ‘breach of warranty of title’. If of course, they can find them – if this is a scam, the ‘landlord’ will no doubt disappear into the sunset.
Tomorrow we look at matters relating to the landlords’ and tenants’ address.
NB Find out more about my Tenancy Agreement Service on Landlord Law