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As soon as they walk in the door and start paying rent, a tenancy will be created under s54 (2) of the Law of Property Act 1925. Even without a written tenancy agreement, landlords are still bound by their statutory duties towards their tenants.
They are also bound by the Protection from Eviction Act 1977 which says that tenants can only be evicted if a court possession order has been obtained. Getting that without a written agreement will be difficult if not impossible.
All the landlord and tenant-related safety regulations concerning gas and electrical appliances, carbon monoxide and fire alarms, furniture and fittings will still apply. Local Authorities will still retain all their powers under the Housing Act 2004 in relation to HMOs.
Without a written tenancy agreement form, landlords will be unable to make deductions from tenancy deposits. If there is no written tenancy agreement, there is no authority for the landlord to withhold anything from the deposit, no matter how awful the condition of the property when the tenant moves out.
Although tenants without a written agreement may experience problems if they want to claim housing benefit, it is the landlord who will be most disadvantaged by this unsatisfactory situation.
Can I evict a tenant without a tenancy agreement?
There is no real difference in the procedure for evicting a tenant with or without a written tenancy agreement.
A well-constructed, written tenancy agreement such as an Assured Shorthold Tenancy (AST) is an absolutely essential document which outlines mutual responsibilities. Access Legal can provide a tenancy agreement template to ensure it is presented in the correct form, accompanied by the correct information as set out in the rules concerning the provision of the required ‘prescribed information’.
However, even without such a written agreement, as soon as a landlord agrees to allow someone to rent their property and accepts rental payment, a verbal contract is formed and a tenancy is created. This verbal agreement is as legally binding as a written tenancy agreement.
The fact that there is nothing in writing does not absolve landlords from their statutory duties and responsibilities and the tenant still has all the legal rights any other tenant would enjoy. A landlord still needs to go through the proper procedure and serve a valid Notice to evict a tenant after obtaining a court order for possession (although they will be unable to use the accelerated possession process).
The tenant is entitled to stay in the property until evicted by a court bailiff (or High Court sheriff) acting under the authority of a court order for possession. If a tenant is evicted any other way, the landlord could be held liable for unlawful eviction.
How is a verbal tenancy agreement created?
For a verbal tenancy to exist it must have three essential elements: an offer, the acceptance of that offer and payment subsequent to that offer (known as the 'legal term consideration’).
If these three conditions are met, then by definition the parties have agreed a verbal tenancy agreement which is a legally binding contract.
Both parties parties must be acting freely and not under duress and agree to be legally tied to the agreement. In addition, both must be over 18 and have the ability to make and understand the agreement (i.e. if either is drunk at the time the agreement was reached or is deemed not to have mental capacity the agreement is not legally valid.)
Even though verbal agreements are legally binding, it is still preferable, and indeed vitally important, that a written tenancy agreement form is used when creating a tenancy. Frankly, a landlord or tenant who agrees to anything without a written contract is extremely foolish and simply storing up problems for the future.
Written contracts exist for the protection of both landlord and tenant. A written AST tenancy agreement form avoids misinterpretation and sets out the key points in the tenancy. By having a well-constructed written tenancy agreement which outlines the tenant and landlords’ responsibilities, any disputes further down the line can be avoided.
More about tenancy agreements
The tenancy agreement is a form of contract and as such it is a very important document. It is a contract between landlord and tenant giving certain rights, principally the tenant's right to occupy the property and the landlord's right to receive rent for letting it.
The Assured Shorthold Tenancy (AST) is now the most common form of short term tenancy agreement. This forms a contract and sets out the obligations of both tenant and landlord. Access Legal can provide a tenancy agreement template to ensure it complies with relevant gas, fire and electrical safety legislation and the landlord's and tenant's repairing obligations.
It's not unusual for the tenant to be given a Section 21 Notice at the outset of the tenancy along with the AST agreement, but the Notice will be valid only if served after any deposit has been lodged in a recognised scheme.
There is no minimum fixed term specified in an AST although the tenant has the right to remain in the property for at least six months. Where the tenancy is for a fixed term of more than three years it must be created by deed otherwise it will be void. An AST can continue as long as both parties are happy for it to do so.
If there is no written tenancy agreement then landlords cannot use the accelerated possession process. It is also more difficult to establish whether a term of the tenancy has been breached because there is no written record of exactly what the rights and responsibilities of the parties are.
What are my responsibilities if no written tenancy agreement is in place?
The fact that there is nothing in writing does not absolve landlords or tenants from their statutory duties and responsibilities and does not reduce or diminish a tenant’s rights.
Even without anything in writing, a landlord (whether renting out their own property or letting a property purchased for that purpose) still has many legally enforceable duties and responsibilities they would not have as a homeowner and which they cannot avoid..
You will still be responsible for all repairs, maintenance and refurbishment to the property. You'll also need to fit smoke and carbon monoxide alarms and ensure the correct and safe operation of water, heating or cooling systems in the rental property.
Any gas appliances will need to be tested by a Gas Safe registered engineer and you need to make sure any upholstered furniture is fireproof. Landlords must also now have an Energy Performance Certificate arranged for their tenants and will still need to register any deposit with an approved Tenancy Deposit Scheme. The local authority can still serve improvement notices or fine you if you fail to respond to a tenant’s reasonable request for repairs.
If you don’t have a written tenancy agreement you can still serve a Section 21 or Section 8 Notice but it will be difficult to bring a claim based on breach of the terms of the tenancy because you won’t have a written document setting out what those terms are.
We would be grateful if you would provide all of the below documents and information as soon as possible.
We also require confirmation that the following documents have been served upon the tenant, the date they were sent and how they were served (by hand / by post / by email / other).
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