Inserting specific clauses in contracts....

terrydel

We have been up and down recently with our landlord, trying to buy the house from him.
I won't go into specifics but he is now no longer selling, and we are trying to find a place elsewhere.
We are 15 months at the property, we had a contract for the first 12 months which lapsed and was not renewed, so we've been staying there without one since.
I've now asked him for a contract with a specific clause saying that the house will not be sold for a minimum of 12 months ideally, giving us the time and space to look for somewhere else without rushing or panicking as we have been doing over the last few weeks as we wait to find out if he will sell to us or put it on the open market.
I'm happy to have a clause in it saying we will give him 3 months notice of moving out should we find somewhere, so he also has some time to find new tenants if needed.
But given his constant change of mind on selling the house up to now (either to us or others or not at all) I cannot take his word that if I sign a standard contract, he wont have a For Sale sign up within a few weeks from now.
So question is if I insist on that clause that he cannot sell for a minimum of 12 months, and he agrees to it, is it enforceable and does it give us the security we are looking for in the short term? Without it, I have no desire to stay there wondering every day if this is the day we get our notice to move out, I'm sick to death of it and the stress it causes.

Fian

Yes, it is enforceable if he agrees to it. Presumably he will not agree to it though, your offer to give him 3 months notice is not particularly valuable to him and the law allows you to effectively set that clause at naught by seeking his consent to assign the lease.

terrydel

Fian wrote: »

'and the law allows you to effectively set that clause at naught by seeking his consent to assign the lease.'

No idea what that means sorry.

If he doesnt agree to this, I simply cannot trust him not to have the property up for sale in another few weeks or couple of months, and refuse to go on living that way, so I'll be handing him the minimum notice and moving on.

burkey2k0

I'm pretty sure a clause in a contract can't overrule law/legislation. So even if he did sign up to it, it is not enforceable by you.

The first thing a judge would say is that the legislation governing his right to sell the house takes precedence over any civil contract.

I'm in no way an expert however.

terrydel

burkey2k0 wrote: »

I'm pretty sure a clause in a contract can't overrule law/legislation. So even if he did sign up to it, it is not enforceable by you.

The first thing a judge would say is that the legislation governing his right to sell the house takes precedence over any civil contract.

I'm in no way an expert however.

My inclination is that you would be correct.

amcalester

burkey2k0 wrote: »

I'm pretty sure a clause in a contract can't overrule law/legislation. So even if he did sign up to it, it is not enforceable by you.

The first thing a judge would say is that the legislation governing his right to sell the house takes precedence over any civil contract.

I'm in no way an expert however.

The legislation doesn’t grant the ll a right to sell, it merely states that selling is a valid reason for terminating a part 4 tenancy.

If the OP and the all sign a new 1 year lease then unless that lease contains a clause allowing the landlord terminate in order to sell then he can’t do it.

No need to add anything to the lease, just make sure the landlord hasn’t attempted to add that clause.

Just to add, technically the ll could still sell the property if there was a fixed term lease in place, but only with the tenant in situ which he is unlikely to do.

terrydel

amcalester wrote: »

The legislation doesn’t grant the ll a right to sell, it merely states that selling is a valid reason for terminating a part 4 tenancy.

If the OP and the all sign a new 1 year lease then unless that lease contains a clause allowing the landlord terminate in order to sell then he can’t do it.

No need to add anything to the lease, just make sure the landlord hasn’t attempted to add that clause.

I want a minimum of 12 months where the property cannot be sold from under my, given his lack of trustworthiness and constant changes of mind , Im not accepting anything less. If I cant get that I'll move.

If I sign a new lease, surely he can sell once I get written notice (6 weeks - period for tenants between 1 & 2 years)?
What is a part 4 tenancy?

burkey2k0

amcalester wrote: »

The legislation doesn’t grant the ll a right to sell, it merely states that selling is a valid reason for terminating a part 4 tenancy.

If the OP and the all sign a new 1 year lease then unless that lease contains a clause allowing the landlord terminate in order to sell then he can’t do it.

No need to add anything to the lease, just make sure the landlord hasn’t attempted to add that clause.

Just to add, technically the ll could still sell the property if there was a fixed term lease in place, but only with the tenant in situ which he is unlikely to do.

Hmmm, not sure if you're right.

Example: With that reasoning a landlord can put in a lease a clause that you both agree to raise the rent 10% per year. Hence, overruling the RPZ legislation...
if that contract was signed, and then reneged on by the tenant, I don't think that could in any scenario hold water in favour of the landlord in front of the PRTB, let alone a judge.

In general terms when it comes to contracts, all objects/clauses contained are subject to the legality of the jurisdiction that governs them. It cannot overrule them. In the States it can be different, but I don't think here or in Europe.

But again, I do hold my hands up as not being an expert.

Graham

terrydel wrote: »

If I sign a new lease, surely he can sell once I get written notice (6 weeks - period for tenants between 1 & 2 years)?
What is a part 4 tenancy?

A lease would typically give you additional security on top of the rights you have under a part 4 tenancy. For example a 12 month lease would generally mean you are secure for 12 months.

Just check the new lease (better yet get a solicitor to check) to make sure there's no break clause.

amcalester

burkey2k0 wrote: »

Hmmm, not sure if you're right.

Example: With that reasoning a landlord can put in a lease a clause that you both agree to raise the rent 10% per year. Hence, overruling the RPZ legislation...
if that contract was signed, and then reneged on by the tenant, I don't think that could in any scenario hold water in favour of the landlord in front of the PRTB, let alone a judge.

In general terms when it comes to contracts, all objects/clauses contained are subject to the legality of the jurisdiction that governs them. It cannot overrule them. In the States it can be different, but I don't think here or in Europe.

But again, I do hold my hands up as not being an expert.

You’re right that one can’t sign away legal rights, that’s not in dispute.

Where you’re wrong is that the landlord has legally protected right to sell the property. He doesn’t.

The_Conductor

amcalester wrote: »

You’re right that one can’t sign away legal rights, that’s not in dispute.

Where you’re wrong is that the landlord has legally protected right to sell the property. He doesn’t.

The Residential Tenancy Act protects the rights of tenants- and no clauses inserted in a lease, which detract from the right of tenants under the Act- are enforceable.

However- the reciprochal most certainly does not apply.
A landlord can sign away any rights they have under the Act in a lease- the Act will not protect them from self harm.........

In the OP's case- if the landlord is sane- he/she should simply allow the tenancy to continue as a Part IV tenancy- as per the Residential Tenancy Act. Any previous clauses in the now expired lease- continue to apply- however, they are not granting the tenant any additional rights that they do not have under the Act...........

As for the landlord agreeing to a clause forbidding them from selling the property- and they are already seriously considering selling the property- just why would they agree to such a clause? It makes no sense whatsoever to accede to the wishes of the tenant- zero sense. If the tenant leaves- fine- tidy up the property and sell it. Why would they hamstring themselves with an undertaking not to sell- if they are considering selling?

terrydel

The_Conductor wrote: »

The Residential Tenancy Act protects the rights of tenants- and no clauses inserted in a lease, which detract from the right of tenants under the Act- are enforceable.

However- the reciprochal most certainly does not apply.
A landlord can sign away any rights they have under the Act in a lease- the Act will not protect them from self harm.........

In the OP's case- if the landlord is sane- he/she should simply allow the tenancy to continue as a Part IV tenancy- as per the Residential Tenancy Act. Any previous clauses in the now expired lease- continue to apply- however, they are not granting the tenant any additional rights that they do not have under the Act...........

As for the landlord agreeing to a clause forbidding them from selling the property- and they are already seriously considering selling the property- just why would they agree to such a clause? It makes no sense whatsoever to accede to the wishes of the tenant- zero sense. If the tenant leaves- fine- tidy up the property and sell it. Why would they hamstring themselves with an undertaking not to sell- if they are considering selling?

What is a part 4 tenancy? Am I right in saying that if we continue as is (with no contract) he can give us 6 weeks notice of intention to sell? Would a new 12 month lease (without any specific clause) improve things for us?

The_Conductor

terrydel wrote: »

What is a part 4 tenancy? Am I right in saying that if we continue as is (with no contract) he can give us 6 weeks notice of intention to sell? Would a new 12 month lease (without any specific clause) improve things for us?

Yes- it would, unless it had a break clause, mirroring the clauses in the Residential Tenancies Act, inserted in it.

Honestly- the safest course of action for the landlord- would be to leave the tenancy run on a Part IV basis (this is Part 4 of the Residential Tenancies Act)- as the landlord cannot detract from a tenants rights- he/she can however royally screw themselves over- and they would indeed do so- were they to issue a subsequent fixed term lease............

terrydel

The_Conductor wrote: »

Yes- it would, unless it had a break clause, mirroring the clauses in the Residential Tenancies Act, inserted in it.

Honestly- the safest course of action for the landlord- would be to leave the tenancy run on a Part IV basis (this is Part 4 of the Residential Tenancies Act)- as the landlord cannot detract from a tenants rights- he/she can however royally screw themselves over- and they would indeed do so- were they to issue a subsequent fixed term lease............

So to clarify, we continue as is (part 4), he can give us 6 weeks notice of intention to sell?

amcalester

terrydel wrote: »

So to clarify, we continue as is (part 4), he can give us 6 weeks notice of intention to sell?

Yes.

But if you sign a lease, unless that lease contains a break clause allowing the ll serve notice in order to sell, you’re safe for the term of the lease.

Victor

terrydel wrote: »

What is a part 4 tenancy? Am I right in saying that if we continue as is (with no contract) he can give us 6 weeks notice of intention to sell? Would a new 12 month lease (without any specific clause) improve things for us?

A new 12-month contract would mean that you could stay for the 12 months, even if the landlord sells.

terrydel

Victor wrote: »

A new 12-month contract would mean that you could stay for the 12 months, even if the landlord sells.

But from what Ive read, he can still give me six weeks notice of intention to sell within 3 months, new fixed term lease or not?
This is the bit thats very unclear for me.
If I get a new 12 month contract, is it 100% certain that I can stay there for that period, regardless of him wanting to sell, giving me six weeks notice etc?

amcalester

terrydel wrote: »

But from what Ive read, he can still give me six weeks notice of intention to sell within 3 months, new fixed term lease or not?
This is the bit thats very unclear for me.
If I get a new 12 month contract, is it 100% certain that I can stay there for that period, regardless of him wanting to sell, giving me six weeks notice etc?

If you sign a fixed term lease that lease is in addition to the Part 4 terms, so unless the signed lease has a break clause allowing the ll terminate the fixed term lease then you are 100% safe.

Effectively you would have 2 leases running concurrently, the part 4 with your basic statutory rights and also a fixed term lease giving you enhanced rights (assuming no break clause re: selling is included).