One of the questions landlords regularly ask is whether a tenant’s signature on a tenancy agreement needs to be witnessed. The simple answer is not usually. However there are some situations where witnessing signatures is an important legal requirement.
When does a tenancy need to be signed as a deed?
Under the Law of Property Act 1925 creating a legal interest in land (including a lease or tenancy) generally requires the document to be executed as a deed. Executing a document as a deed means it must clearly state that it is being signed as a deed and each signature must normally be witnessed.
Fortunately most residential tenancy agreements fall within an important exception.
When is a witness not required?
Section 54(2) of the Law of Property Act 1925 allows many residential tenancies to be created without being executed as a deed, provided that:
- the tenancy is for three years or less
- the tenant pays a market rent
- there is no premium or upfront payment for granting the tenancy (sometimes historically referred to as “key money”)
- the tenancy starts immediately when it is granted.
Most Assured Shorthold Tenancies (ASTs) created for six or twelve months satisfy these conditions. In these cases, neither the landlord’s nor the tenant’s signature needs to be witnessed.
When should signatures be witnessed?
There are circumstances where executing the tenancy as a deed is advisable or required.
Examples include:
- tenancies granted for more than three years
- tenancy agreements signed well before the tenant is due to move in (known as a reversionary lease), which is common with some student accommodation
- any situation where the tenancy does not satisfy the conditions set out in section 54(2).
In these situations, the tenancy should normally be executed as a deed, with signatures witnessed correctly.
Why do many tenancy agreements include witness sections?
You may notice that many standard tenancy agreements include spaces for witnesses even when they are not legally required.
This is because publishers produce agreements that can be used in a wide range of circumstances. Including deed wording makes the document suitable for situations where execution as a deed is necessary without requiring a different template.
What happens if the agreement isn’t signed as a deed?
In most residential lettings the tenancy will still come into existence when the tenant moves into the property and begins paying rent provided the requirements of section 54(2) are met.
It’s also worth remembering that a signed tenancy agreement is a legally binding contract. Even where a deed is not required the contractual terms agreed by both landlord and tenant remain enforceable.
Final thoughts
For the vast majority of residential lettings tenant signatures do not need to be witnessed. However longer term leases or agreements signed significantly before the tenancy begins may need to be executed as deeds.
If you’re unsure which requirements apply to your tenancy taking professional advice before the agreement is signed can help avoid unnecessary complications later.
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