Tenant swap and Section 8: 12 month tenancy requirement

Landlord Discussion Legal
1

Hi Everyone

As you may know, the new regs include the provision that a Section 8 notice cannot be issued for the first 12 months of a tenancy.

I’m looking for any information about whether a tenant swap (two existing tenants remain while one tenant leaves and a new tenant moves in) is considered to reset the calendar on the “12 months of a tenancy”. So far I haven’t been able to find an official interpretation.

In the past I have issued a new AST for tenant swaps, as the AST includes both a beginning and end date, and a Section 21 could be used to regain the property after the fixed period of the AST.

My intention now is to issue the new APT for the tenant swap as an amendment to the existing tenancy agreement, thus maintaining the original start date of the tenancy.

Could anyone let me know if they’ve found any source of information which may clarify the Section 8: 12 month requirement in this situation please?

Regards, Dan

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If one tenant leaves then they should have served a notice to quit in writing . If you have accepted this then that T severed the whole tenancy . It does not require a s8 .

The other tenants have to leave , technically . You can’t therefore backdate an APT.

You start a new APT naming three tenants . And you do all the paperwork .

The question is can you charge £50 for writing a new contract .

It has been suggested that in a three bed HMO that you write room contracts, rather than a joint contract , to avoid such a scenario .

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@BrightonDan

Erm the 12 month point relates to grounds 1/1a not all s8 grounds. Not all s8 evictions. See the guidance

It’s there to protect tenants at the start of their tenancies from being evicted because of a LL or their family moving back in (ground 1) or selling the property (ground 1a). If you wanted to do either of those in the next 12 months it wouldnt allow the tenant to have much security (albeit there is 4 months notice and then it would take an average 8 months to seek possession and evict..)

You will have a new contract and at leastv 1 new person on the tenancy so it would be wise to assume it will be seen as new by the courts- because it will be new for the new tenant

There may not be case law on this yet.

‘Might’ be different if you amend tenancy using a deed of variation but my understanding is that Openrent’s process issues a brand new contract if you use their ''Amend tenants" option as they regard change of tenant as a substantial change of the terms. They also seem to insist on a new tenancy contract if the LL changes (even though there is no way legally to force tenants to accept this) which is a mess - see other threads

@David122 may be able to advise further

Good luck

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I assume you mean s8 grounds 1 and 1A as other grounds can be used in the first year.

In theory you can still use a deed of assignment to swap some tenants without creating a new tenancy, but its not recommended for Assured Periodic Tenancies. You would need to consult a specialist solicitor or perhaps a landlord association on the use of an assignment. However, I think that in practice landlords now have little choice but to end the existing tenancy through a deed of surrender and create a brand new tenancy with the new group.

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“My intention now is to issue the new APT for the tenant swap as an amendment to the existing tenancy agreement, thus maintaining the original start date of the tenancy.”

I assume the tenants have an AST. I don’t think your plan works as there will be a new tenancy, an APT, and the 12 month clock will start again. There is probably very little case law on the point as generally ASTs and APTs cannot be assigned. However, as landlord you could agree that tenants A, B and C can assign their AST to A, B and D. You would probably have to draft the deed of assignment for them as this is unusual. The point is that the original tenancy (albeit now a periodic tenancy) will continue to exist. Under the Landlord and Tenant (Covenants) Act 1995 liability for the tenant covenants will pass automatically on assignment to A, B and D. C will cease to be liable.

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Thanks for that information, it is very helpful. I thought the 4 months came after the 12 months, but it’s good to see they can run concurrently.

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Wonderful, thanks Walford and David122. The deed of assignment seems a useful tool.

https://www.sholland.gov.uk/media/6226/Deed-of-Assignment/pdf/Deed_of_Assignment.pdf

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The tenancy is now an APT and assignment is not recommended.

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I believe the drafting of deeds for the conveyance of land is a reserved activity for solicitors under the Legal Services Act 2007.

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@BrightonDan

The 4 months cant expire before the end of the 12 months so partly concurrent

#pedantsrule

Best