What Is A Sitting Tenant? Landlord Information

What Is A Sitting Tenant?

By Nicola Wood

What Is A Sitting Tenant?

What Is A Sitting Tenant? A sitting tenant is defined as someone who is renting a property that their landlord as the owner has decided to sell. If this decision has happened during the fixed term of a contract or the tenancy is protected, the sitting tenant keeps the right to continue living in the property once the property has been sold until the end of the fixed term. The property would then have to be sold with a ‘tenant in situ’.

What Rights Does A Sitting Tenant Have?

  • Assured Shorthold Tenancy – When purchasing a property with a sitting tenant, the new owner, as the landlord, takes on the existing Assured Shorthold Tenancy (AST) of the tenant. Both parties are bound by the terms of the original tenancy agreement. Only once the fixed term period of the AST has ended can the new landlord evict the tenant under a section 21 notice.
  • Regulated Tenancy – If the tenant entered into the tenancy before 1989, they will benefit from the security of tenure under a Regulated Tenancy. Their rights are that they have a legal right to remain living at the property, in accordance with the Rent Act 1977. If the sitting tenant should die, under rights of succession, the tenancy might be able to then be passed on to another family member. A sitting tenant does not have the right to buy the property that they are renting, except if the property belongs to the local authority. However, this is not to say that a landlord cannot offer their tenant first refusal on the property should they decide to sell. A sitting tenant has the right to remain in the property, provided they continue to pay rent on time and keep to the terms of their agreement. The rent paid could be below the current market value and it is their right to remain paying this lower rental sum.

What Obligations Does A Sitting Tenant Have?

A sitting tenant must ensure that they pay their rent on time or they run the risk of invalidating their sitting tenant status. If a sitting tenant owes a landlord three or more month’s rent, then the landlord will be able to apply for an eviction order under the terms of the Rent Act 1977.

In relation to the property’s internal maintenance, the sitting tenant must ensure that reasonable repairs are undertaken.

The sitting tenant must also comply with the regulations that the original tenancy agreement details. This can include such clauses as no pets, no smoking or ensuring that the garden stays maintained.

Again, if a sitting tenant does not follow these rules, they run the risk of losing their sitting tenant rights.

What Does ‘Sold With Sitting Tenant’ Mean?

If a property is offered for sale with the words ‘tenant/s in situ’, it means that it is being sold with a sitting tenant in place. This means that the tenant currently living at the property will remain living at the property whilst it is sold and afterwards under the terms of their tenancy. The purchaser of the property will then become the tenant’s new landlord. It is important to understand the terms of the tenancy agreement that the sitting tenant has before entering into a contract to buy the property.

How Does A Sitting Tenant Affect Property Value?

Properties that are offered with tenants in situ often sell for much less than those being sold with vacant possession.

It is often the case that a lender will be unwilling to mortgage a property that has a tenant in situ so financing the property then comes a question of whether a cash purchase is possible. This limits the pool of available purchasers which will inevitably drop the price of the property

Added to this smaller mortgage market, there are also issues around the number of people who would be willing to take on a purchase with an in-situ tenant. Typically, this would be restricted to people who already are, or are looking to become a landlord, but even then, the pool is limited as not all landlords would be willing to take on a new tenant under an agreement that they didn’t negotiate. As such, given the general lack of mortgage packages and the limited pool of purchasers, having a sitting tenant in a sale will lead to the value or the property being depressed.

Can A Tenant Be Removed From A Property I Wish To Sell?

When selling a property with a sitting tenant, a landlord is faced with a few courses of action:

  • The first option is always to give the tenant first refusal to buy the property. If they accept then the problem is solved.
  • Give notice to the tenant of the planned sale of the property but first check the terms of the tenancy agreement to see if the tenant can be given notice, especially if the tenancy is still in the fixed term. As detailed above, this may be possible if the tenancy is an AST, by issuing what is called a Section 21 Notice. This is not an option for regulated tenancies.
  • Wait it out until the end of the tenancy agreement and then sell the property. A landlord could ask the tenant if they will leave so that the house can be sold, But this would be purely under a voluntary agreement and cannot be enforced.

Buying A House With A Sitting Tenant

When purchasing a property with a tenant in situ, the law covering England & Wales states that the new owner of the property (and therefore new landlord for the tenant) must take over the exact rights and obligations that the previous landlord had in relation to the tenant.

Firstly, the new landlord must contact the tenant/s to advise them of the change of landlord. Updated instructions should also be provided as to how rent should be paid. There is also a responsibility on the tenant to ensure that they have the new details as ignorance of these is not an excuse to miss rent payments.

The new landlord must transfer the arrangements that went along with the original deposit paid so that they are under their own name. It’s important to note that this is likely to involve a deposit protection scheme.

The new landlord must also inform the tenant if they transfer their deposit between schemes and provide the sitting tenant with full details. This is a legal requirement. They new landlord should also confirm with the transferring landlord that the right to rent checks have been carried out and evidence retained and whether any follow-up checks need to be conducted.

Hear What The Experts In Selling Tenanted Property Have To Say..

Chris and Ross have been working in the ever-evolving property industry since the early 1990s. Prior to founding Portolio and each of them built successful letting agencies which were eventually bought by larger companies.

What is Portolio’s Mission?
We’re on a mission to ensure that buying and selling of tenanted property in Scotland is a well-known, logical solution for all landlords and property investors. We’re here to deliver a unique service in a way that is transparent, professional and trustworthy. We want to make buy-to-let as seamless as possible, for as many people as possible. Okay, I admit that is taken straight from our website! But it was authentic when we wrote these words, and it’s the same now.

How is the market shaping up for properties for sale with tenants in situ?

Things have been pretty full-on so far this year! Dozens of new potential buyers continue to come to us every week looking for good buy-to-let flats and houses. Whilst, at the same time, there has been a big increase in the number of landlords getting in touch for some advice, support and to instruct us to sell their property for them. 

When we started Portolio, back in 2017, we believed there was a real need from both active property investors struggling for a way to grow their portfolio and landlords who were stuck, unsure about how to divest in the best way. 

Our philosophy is a shared success between both buyer and seller. And it’s a philosophy that has produced many great results for all concerned – including the tenants, I might add. Buyers of tenanted property certainly see the benefit of instant rental income, a fully compliant purchase and a straightforward professional process. I could say a lot more but, in short, the future of tenanted property sales, here at Portolio, is a very positive one. 

Has COVID had an effect on landlords who now just wish to sell?
There is no doubt that COVID has had an effect on landlords wishing to sell and the principle reason for that is the six month notice period. The fact is that the six month notice period has been tough on landlords. It’s made it very hard for them to plan and react to the challenges that every day life brings along. It’s a huge topic of conversation and we wrote this blog about it all earlier this month – https://portolio.co.uk/blog/six-month-notice-latest/

Looking For More Information or Selling Or Buying Tenanted Property? Please contact Portolio direct where they will be more than happy to assist you further.

Article Copyright © 2022. Permission to use quotations from this article online is only granted subject to appropriate source credit and hyperlink to www.lettingcloud.co.uk

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