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Question Title: Short Tenancy
| Question: 288 |
| Could you advise, what is the best sort of tenancy to use for a three month let, without having to expose the landlord to a potential six months ? Could I, for example, use a holiday let instead ?
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| Answer: |
| There is really no easy answer to this problem. The law confers two types of security on residential tenants. Firstly, the security that the tenant (unless a tenant of a resident landlord, or a holiday let) cannot be evicted without a court order (Protection from Eviction Act 1977, s.2). Secondly, that an order for possession cannot normally be brought against an assured shorthold tenant earlier than six months from the start of the tenancy unless the tenant is in default with the terms of the letting. The net effect of the above is that it is indeed possible to grant a three month assured shorthold tenancy but there is no easy way that possession can be enforced if the tenant subsequently wishes to stay on in the property. It is possible to grant a three month holiday letting and subsequently enforce possession. However, landlords who have attempted to circumvent the law with a so-called 'holiday letting' when in fact the letting was not genuinely for the purpose of a holiday (Buchanann v May, 1978) have not been successful. Practitioners have also investigated the use of a 'sting-in-the-tail' type of agreement (where the tenancy agreement makes provision for a substantial rent increase or penalty if the tenant remains in the property beyond the agreed three month term). This method has also been called into question, especially in the light of the recent case of Bankway Properties v Dunsford, 2001 where a substantial rent increase was held to be unenforceable. In law, sums agreed in advance as damages (liquidated damages) are only recoverable provided that the sum fixed was a fair pre-estimate of the likely consequences of a breach, but not if they were imposed as a penalty. Also, the landlord will still have several months' delay in bringing possession proceedings before the tenant can be evicted. In many cases, a tenant holding-over beyond the agreed term is not a problem - the tenant, after all, remains liable for paying rent to the landlord during the extended tenancy. Only if the property is required back for some specific purpose (e.g. landlord returning from abroad, property being sold) does it pose a serious problem. Clearly, the safest course in such circumstances is simply not to undertake any form of letting over such a short period. Otherwise, I believe that the only other practical solution to this conundrum is to explain the circumstances clearly to the tenant prior to the tenancy (preferably in writing) and to individually negotiate a specific term in the tenancy agreement that requires the tenant to pay any reasonable accommodation and storage expenses incurred by the landlord if the tenant fails to vacate on the agreed date.
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References:
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Pages:
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Hyperlinks:
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Letting Update Journal |
Oct 1999 page 20 |
letting-update-journal.html
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Letting Handbook |
Chapter 5 |
letting-handbook-and-factsheets.html
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For more information, discuss on the Forum
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