Surrender of lease: short term fixed contract

[Velouria]

Hi-
I have read the recent post about tenants ending their fixed term tenancy early (posted 28/09/2007), but am not altogether certain what is involved in the actual act of surrender.

Myself and my partner began a fixed term tenancy for twelve months on 03/03/2007, but due to changes in circumstance we are no longer able to afford to live here. We contacted our landlord yesterday who has verbally agreed that we may move out earlier, although a date was not discussed. We have subsequently suggested 1-3 December, as we wanted to give plenty of notice and are awaiting a reply. We are able to pay the rent until this time.

We understand that a surrender will be necessary. Can anyone advise what this involves, how do we obtain one, and what protection (if any) it offers us, especially with regards obtaining our deposit when we leave.

We took the tenancy through a letting agent, although the deposit was paid to the landlord.

Many thanks,

V.

[Velouria]

Forgot to add- there is no break clause in the tenancy contract; there is nothing in the agreement which mentions leaving the tenancy early.
Incidentally, we realised subsequently that the agreement we signed was for the letting of a furnished flat, when in fact the property was let unfurnished.

V.

[topletters]

Hi

First of all, I would check through your tenancy agreement and see if you have what is known as 'break clause.' This is a clause which grants you the option to the terminate your tenancy before the contract expiry date without penalty, which means your deposit should be refunded so long as no breakages, deterioration etc apply. Such a notice is usually for 28 days.

If there is no break close, it is at the discretion of the landlord whether to allow early termination. If not done already, I would check that the landlord will not charge you rent up to the end of the 12 months. Any notice of termination should be in writing and in accordance with either the clause in your contract or if no clause, whatever your landlord agrees to.

Hope that helps

[MrShed]

There are a few options. When I get home from work I shall outline them in detail. Basically:

- Mutual agreement/negotiation.
- Assigning tenancy
- Subletting
- Giving notice and leaving(which does NOT automatically make you liable for the rest of the rent).

In preparation for my detailed answers, can you tell us what the tenancy says with regards subletting and assignment of tenancy please?

[Velouria]

Thanks Mr Shed,

The relevant section you ask for states in the Tenant's Obligations Section:

"Not to assign underlet change part with or share possession or occupation of the Property or any part thereof Provided Always that the Tenant shall be permitted to share the occupation of the Property with the person(s) whose name(s) is/are specified in the Particulars as licencee only"

Have I omitted any other crucial details?

Many thanks,

V.

[MrShed]

I'm going to rip my detailed post wholesale from when I posted it a while back

The simple answer is, no you cannot end the tenancy as such early. However, there are still several options available to you, I shall attempt to detail them below(in order I would do them):

- Check your AST for a break clause. It is quite possible that in such a long term contract there may well be such a clause, allowing you to give notice during the tenancy. However, this is still unlikely, but definitely worth checking.

- Negotiate with the landlord. A landlord may be quite receptive to you just sitting, talking to him, and telling him that you would like to leave if possible. They may also be receptive to a financial settlement to break the contract, a couple of months rent may be amenable.

- Give notice and leave. In this situation, you are responsible for the rent still, however the landlord must make every reasonable attempt to find a new tenant, and realistically finding a new tenant should not take any longer than 2 to 3 months - of course depending on the property and the area. I do not think that the notice period would matter, as you are more giving him notice to look for new tenants than giving notice that you are breaking the tenancy and stopping rent payments. But I wait to be corrected on this. However, it is obviously advisable to give as much notice as possible.

- Assignment. As long as it is not prohibited in your AST, you have the right to assign your tenancy to someone else. This means that you can find someone else to take over the tenancy from you, and this cannot reasonably be refused. However, I think they have to pass the same credit checks etc as you did.

- Sublet. Again, as long as it is not prohibited in your AST(most do prohibit it) you can sublet the property to someone else. NB: it is an unfair term to prohibit both assigment and subletting, so if both are, then you can basically choose either, as the terms are null and void.

- Remember that you are only responsible for the rent until a new tenant is installed, and the landlord must make every reasonable effort to mitigate his losses i.e. find a new tenant.

Another(you may think irrelevant) question, how much deposit did you pay, in terms of how many months rent?

This is definitely an area where my "advise ONLY" signature comes strongly into play. I am confident of my opinion on this matter. However, I know a number of knowledgeable people in the field disagree with some of this, in particular the parts about "sublet", and "give notice and leave"(the mitigating damages bit) - although it should be noted that at least an equal number agree. However, it could only be a court ultimately that can decide, and courts have a rather notorious tendancy to be unpredictable with this kind of thing.

Hope this helps. As a point of note, that clause would probably fall foul of the OFT "plain english" rules for consumer contracts

[Velouria]

Thanks again Mr Shed!

We paid 6 week's rent as a deposit.

Your post is certainly food for thought.
My understanding is that we cannot assign or sublet. We have no break clause.

But, we are awaiting the landlord's response to our suggestion that we vacate on or around 2nd December- thereby giving plenty of notice.

I am still unclear as to what form a surrender shold take- should we have a document drawn up, or is notice in writing enough?


Thanks again

V.

[MrShed]

My understanding would be that you can assign or sublet, as it is classed as an unfair term to prohibit both, therefore effectively removing the term from the tenancy.

[Velouria]

Thank you again.

Can anyone advise on what form a srrender of tenancy should take please?

V.

[MrShed]

A surrender, in effect, would be option 3 on my post above Velouria. No formal method of doing it other than giving notice of you leaving and returning possession of the property to the LL.

[Ed999]

Originally Posted by Velouria

We understand that a surrender will be necessary. Can anyone advise what this involves, how do we obtain one, and what protection (if any) it offers us, especially with regards obtaining our deposit when we leave.

I have posted a draft deed of surrender, that you can adapt, which might be suitable :

http://www.consumeractiongroup.co.uk...ml#post1174109

It must be signed by all parties, witnessed where indicated by an independent third person, and dated with the date on which you vacate the property.