I have an issue with my rental flat. My tenants are moving out at the end of the month and I have a new tenant lined up but………

The flat was solely in my partners name. I am getting it under her will but probate is not yet completed. What I am not sure about is whether I can let it again before probate ( I do need to speak to the lawyer but cannot for a few days). Executors IIRC have a duty to maximise the estate so letting the flat again would do that. I will also need ( as its scotland) to register as a landlord with the council.

Julie also used to do all the legal stuff. I know that she used the standard tenancy forms available on line

So questions:
Can I let the flat again before probate
Can I register as a landlord before probate?
Am I foolish to do the lease myself? It seems straightforward but i do not have the knowledge Julie had

Any obvious traps for me here?

I used a lawyer the first time, I was able to bend her ear with lots of questions about the pitfalls etc. Have done it myself each time since for 5 years.

If you have Confirmation of Executorship then I think you can crack on TJ.

If not then I just don’t know.

I am certainly an executor although the lawyer is doing all the work 🙂

Ta

Interesting one, I would just crack on and put the revenues into the estate, less your costs. I am not in Scotland tho, amazed that in England no one has ever asked me to prove I am actually allowed to rent a property out, but I am known to the agent for 10+ years.

Also, no idea if all the legal stuff transfers with the title change, for us it’s the energy cert, electrical cert, gas if there is any. In fact I m pretty sure they belong to the flat not the owner.

Best of luck with the new tenants.

Can’t help with the first two questions sorry but do you mean that you would supply the PRT when you say: “Am I foolish to do the lease myself?”

If so, Scottish Gov one is the one I use.
https://www.gov.scot/publications/scottish-government-model-private-residential-tenancy-agreement/
You have to give them the easy read notes to go with it too. I usually email them the PRT and notes and then go to the flat on move in day and sign with them and they transfer the rent and deposit then. You’ve then got 30 days to lodge the deposit with a deposit company.
There’s probably better ways to do it but worked ok for me so far.

yes thats the lease we used in the past and I intend to use. I had also thought about emailing them the notes as printed off they are lots of pages and no one ever reads them

Ta

That’s true. About 40 pages if I remember rightly. I ran out of paper the last time I did it because they will print automatically if you print the PRT unless you put the PRT page numbers in.
A minor annoyance but a right pita if you run out of paper! Not to mention the waste of resources.

I don’t even have a printer!

I think you are overthinking it.
You know you that legally are the owner, there is nobody to police the technicalities of this.
In England I have been to small claims court for back rent and damages, after tenants left. Our properties are owned by my work Ltd co (which I own jointly with several relatives). I didn’t want to complicate matters by explaining the ownership structure, I am on the contract and all small claims docs. So did the whole thing in my name and nobody checked land reg or anything else.
Plus here in Crawley I am the registered managing agent and owner with the local authourity for licencing puposes, again no land reg checks. Technically I am the owner, but through my Ltd co.
I’d say crack on.

Edit – you could put it in the wifes name and sign PP on her behalf?
I ‘d go with putting it all in your name personally.

Also in england we have the NRLA. we pay corp memebership about 150 a year and get contracts, telephone adivce line etc etc. No need for lawyers or any other BS. Is there a Scottish equivalent?

EDIT – Just called the NRLA advice line, they said that I cna extend my membership for 330 to include the https://scottishlandlords.com/.
However, you could just join them, all the contracts and support you could dream of.

^^^^^^
There’s SAL in Scotland. Could be a good shout over a lawyer but I guess TJ is dealing with lawyers already and it’s not specifically for this.
Edit: Membership is less for a private LL. £100 for SAL and £110 for SAL and NRLA, I think.

@TJ I’m probably being a bit old fashioned printing it out. Should join the 21st century and start doing it electronically I guess 🙂

You know you that legally are the owner,

He’s not – yet, that’s the point.

If the tenant defaults, you need to have an enforceable tenancy agreement, so it needs to have the correct landlord name, which is what the lawyer is there to advise on.

Thats my worry Martin.

Your best bet is obvious – ask your solicitor directly. Chances are you can sign the TA on behalf of the estate of your late partner. If the TA needs to be adjusted after probate, they can advise on that too.

Quick phone call to the council once you’ve spoken to the solicitor will tell you about landlord registration requirements.

I’m sure you can get it all nailed down in time for your new tenants.

This suggests an executor has the express power to deal with the deceased’s property, including letting it out.

Perhaps in order to make sure it’s above board in terms of being able to enforce the terms of the lease, put the lease in the name of the estate of the deceased, acting via you as executor, and ask the tenants to confirm they understand and accept the position in writing?

Can your solicitor not quickly confirm in a phone call it’s okay, or get a colleague to do it?

I Imagine the above will be correct, but take advice though – the estate will be the ‘landlord’ with the executor administering it.
I’d also imagine any profit made will also be part of the estate, so may be subject to income tax for the beneficiary.

Reason I say that is when I went through it, (just cash in the estate, not property), the solictor I had acting as executor said I’d need to declare the interest from the lump sum during probate (whilst the money was just sat in an account)on my own tax return as income (as sole beneficiary).

My parent’s were left a house very recently. They had a buyer for it, someone they knew and they were more than happy for them to live in it rent free until probate had gone through. This caused all sorts of issues regarding the insurance of the property though as it seems the executors of the will were responsible for insuring the property until probate had been granted and it couldn’t be insured with people living in it. My parent’s had actually been told they could sell but the buyer needed probate to be granted before they could release funds from their lender. It was a total mess and probate took 15 months and now close to 2 years after the neighbour died some funds are still being held back in case of any claims from HMRC. The whole system here is Sussex at least is a total shambles.

Hi 5plus well done getting money back via money claim online, I had this, the tenants defence was they didn’t understand the contract. The agent makes them initial each page so that defence didn’t get anywhere. Anyway, 1st letter of engagement they rolled over and paid everything.

Sorry for thread creep, learning point, get counterparties to sign each page.

Edit – you could put it in the wifes name and sign PP on her behalf?
I ‘d go with putting it all in your name personally.

Eh, you can’t just sign legal documents by PPing on behalf of someone else (whether they are alive or not). You can sign documents “as Executor” but you don’t write pp Tandem Jeremy – and doing it wrong could be a real mess.

TJ – I don’t see any obvious reason not to use the standard template agreements – in all your “landlording” discussions here you’ve seemed thoroughly reasonable so I doubt there’s anything in there you’d want to make tougher for the tenant.

I don’t see any reason why you can’t or shouldn’t sign the tenancy agreement “as Executor”. Executors appear to be exempt from registration as landlords: https://www.gov.scot/publications/registration-private-landlords-guidance-local-authorities/pages/3/ (transitory ownership) for 6 months.

However, if you’ve got a solicitor doing the “work” of administering the estate these should be simple questions they can help with on a quick phone call. Its likely to make the tenant feel happier if they see these things all being done properly.

(TJ – we don’t actually have Probate in Scotland – its called Confirmation, most people know what you mean but if you are dealing with registers for Scotland etc they may assume you are calling from England, which may add confusion.)

Sorry for thread creep, learning point, get counterparties to sign each page.

Not my first rodeo.

Eh, you can’t just sign legal documents by PPing on behalf of someone else

We were told we could by housing lawyer on the last case, we do it all the time.

OK fair point Poly, I just checked with said lawyer. I gave written authority on behalf of the business to the two ladies at work who PP our contracts and tenancy agreements.
But I am accidentally correct however, because in english law, as executor, you have PP rights, therefore can do PP. That has just cost me about 25 quid to find out. And as it isn’t Scottish law it is of no use…

Ta folks

OK fair point Poly, I just checked with said lawyer. I gave written authority on behalf of the business to the two ladies at work who PP our contracts and tenancy agreements.
But I am accidentally correct however, because in english law, as executor, you have PP rights, therefore can do PP. That has just cost me about 25 quid to find out. And as it isn’t Scottish law it is of no use…

At the risk of being contradictory, if you have granted them authority to sign for the business, legal documents executed shouldn’t be marked ‘PP’ – it’s two separate concepts.

Execution with authority is not PPing because they’re not signing on behalf of someone else but instead executing with the full authority to sign on behalf of the business. If they didn’t have actual authority to enter into a contract then it may not be enforceable (but could be if they had ostensible authority – a whole other kettle of fish).

If they’re just signing a letter you prepared/dictated then PP is appropriate as they’re doing it on your behalf.

Nope as I said yesterday, I paid my lawyer to remind me of the legal basis (in englnad) for poeple to sign at work on my behalf, tenancy contracts, procurment contracts etc.
PP means procurare and legally to sign PP you must have written authority.
A letter from me giving procurare to individuals over certain affairs at work. It is more complex on our case as we include reporting responsibilty clauses too.
As executor you procurare the deceaseds affairs.

PP means procurare and legally to sign PP you must have written authority.

Yes, the point I was making was it is the authority to execute which is important, not whether or not it’s marked ‘PP’ – there’s no legal requirement to do so and it holds no special legal status.

By convention a party may mark such a signature ‘PP’ but it doesn’t matter if they do or don’t.

TJ, re Landlord registration, a property can only have 1 landlord registered at a time. You’ll have to sort removing Julie from the Landlord Register before you can register the flat in your name. Although it appears as a national register, you’ll need to speak to Edinburgh City council (I know!) to get Julie’s name off the register.

Ta for that all folks

I am in the process of getting my landlord registration and have the OK from my lawyer to re-let as executor

Oldtennisshoes

I missed that bit – ta muchly.  all in progress

If anyone is interested I have managed to get this all sorted apart from returning the leaving tenants deposit – awaiting answers from the deposit scheme but I did find the details so that should be OK and their lease does not end until tuesday officially.

I am now registerd as the landlord, lease for new tenant done. etc etc

Scottish governments residential lease is incredibly easy to use – you can even fill all details in online and and the help notes actually help

I must say I feel much happier using this lease than the short assured tenancy – it gives the tenants some rights.

funnily enough giving tenants rights ( they have virtually none under the SAT) does not seem to have led to the cut in residential lettings everyone claims will happen if you give tenants rights.  They still do not have the rights we had back in the 80-s of course but its closer now in scotland

anyway – ta for your help.

Deposit scheme sorted very easily and landlord registration

I am astonished by how easy it was to do.  emails returned the same day, very simple processes.  government stuff actually working as it should

tenants even got their deposit back in 24 hours!

Good news!

I too have just extricated from being a Landlord – and also was surprised how simple it was.

I agree on the model tenancy online – very easy to do, the guidance helps with all the additional documents such as repairing standards.