The Perfect London Nightmare

[mcjohnson]

Hi,

I desperately need some help / advice for my friend, who has recently moved to London from Nottingham.

Prior to moving to London my friend found an apartment to live in, and provided the letting agency with the appropriate deposit and a months' rent, and received confirmation that she could move into her property on 18/08/2008.

So on Monday my friend and I travelled down to London, with all her stuff. 20 minutes from the arriving at the letting agents we receive a call from the Landlord, informing that the previous tenant is still in the property and won't be moving out until the following Friday!!!

Obviously this created a lot of stress and anxiety. The landlord offered my friend a studio apartment in the interim, but only offered this at the rental rate for the studio apartment - no discount or compensation for the inconvenience caused.

Later in the day it transpired that the landlord had accepted a payment on the 18/08/2008 (monday) from the tenant that was supposed to be moving out - despite being entirely aware that my friend had signed a tenancy agreement to move into the property on that day.

What is the opinion / legal position of the landlord accepting this payment, despite having a contract with somebody else? Could this be considered acting in bad faith?

My friend has been completely bullied by the landlord. She has a studio apartment that she can't live in, because she can barely fit her stuff in there, she has received no compensation for the inconvenience that she is experiencing and the tenant who is currently in her flat is basically refusing to move out.

Any help / guidance would be massively appreciated.

Many thanks,
Mark.

[MrShed]

No. What has happened is that the tenant is expected to move out by a certain date and hasnt. The landlord cannot force him to move out without a court order, and is entitled to take rent during this period to cover his "loss".

Maybe the landlord shouldnt have offered a contract to end just after the fixed term of the prior tenant - but this is standard practice to be honest.

IMO the landlord has (considering the situation he has put himself in by arranging close proximity lets) done all he can, or, mre importantly, all he is ENTITLED to do, by supplying another property.

[Planner]

The landlord has broken their half of the bargain. Your friend is entitled to anything she has paid back (including any agents fees) and her reasonable transport/storage and accomodation costs. I imagine she will have to go to small claims court to regain the later.

This is a no win situation. The apartment is obviously going to be unavailable for a while, I woudl suggest she cuts ties with the current agent/landlord and find alterntive long term accomodation asap.

A terrible situation. Make sure all correspondance is in writing (or at least a phone call followed by confirmation in a letter).

My second disagreement of the day with Mr Shed!

[MrShed]

Originally Posted by Planner

My second disagreement of the day with Mr Shed!

Bring it on

I would not class the landlord as in breach of the agreement, as the landlord has provided alternative accomodation - this is usually taken as fulfilling the agreement in the short term. It should be noted that prior to moving in, there was no tenancy. The OP could have refused alternative accomodation and effectively terminated the agreement, and entitled to any out of pocket up to that point. She chose to take the alternative accomodation.

Even if it is a breach of agreement, the only thing the OP is entitled to is actual financial loss. I fail to see what this loss is currently, other than the transport costs betweeen the temporary accomodation and the permanent(when this occurs) and any storage costs due to the difference in size of the properties.

[Planner]

Originally Posted by MrShed

Bring it on

I would not class the landlord as in breach of the agreement, as the landlord has provided alternative accomodation - this is usually taken as fulfilling the agreement in the short term. It should be noted that prior to moving in, there was no tenancy. The OP could have refused alternative accomodation and effectively terminated the agreement, and entitled to any out of pocket up to that point. She chose to take the alternative accomodation.

Even if it is a breach of agreement, the only thing the OP is entitled to is actual financial loss. I fail to see what this loss is currently, other than the transport costs betweeen the temporary accomodation and the permanent(when this occurs) and any storage costs due to the difference in size of the properties.

Well Mr Shed. You know that Rollsroyce you where going to lease from me for 6 months at a cost of £5,000? its not available at the moment. But what I am going to do is let you use this Nissan Micra for a week or so. Now I think the Rolls will be available on Friday (but it might not be, not really sure). The cost for the six months is still £5,000 though. It really just is a win win situation for the me isnt it?

[MrShed]

But the cost isnt £5000 - OP has stated that they are being charged market rent for the studio, NOT the apartment.

Oh and BTW - you raise a good point to counter your own if for any reason you required a lease car due to someone elses negligence, then a court would NEVER uphold that that lease car is of the same standard, ONLY that it performs the same purpose for a limited time.

[mcjohnson]

Whilst I appreciate your considered, and obviously informed opinion, Mr Shed, I am inclined to agree with Planner. IMO the landlord has a contract to provide a specific product on a specific date; they have failed to honour that agreement. Furthermore, they have accepted payment on a property for which they hold an exclusive contract with another person - which (to me) suggests they are acting in bad faith towards my friend.

I don't see how this can be anything other than breach of contract on the landlords part, and they breached it in bad faith by accepting the additional payment. In which case, planner is right in that my friend would be entitled to recover all the additional expenses that she has incurred as a result of the breach of contract by the landlord.

The fact the landlord has offered inferior accommodation, which clearly is not suitable, is neither here nor there - my freind was not obliged to take this accommodation, and the landlord would still have breached the tenancy agreement.

[MrShed]

Well with respect, you would agree with Planner, because he agrees with you

IMO the law WHOLLY disagrees with both of you. It is shown in case law that alternative accomodation IS acceptable in the case where the landlord cannot honour the original agreement.

There is no bad faith! Taking the payment is neither here nor there in this situation - and the landlord is entitled to and right to do so in this case!

[mcjohnson]

The bad faith exists because the landlord, who knew they had entered into an exclusive contract for use of that property from that date, proceeded to accept payment from another individual.

There was no uncertainty, or ambiguity, that could lead the landlord to believe they had any right to accept the payment from the sitting tenant.

I would agree with your last comment that alternative accommodation is acceptable, but only in situations where the original accommodation is not available for circumstances beyond the landlords control. i.e. repairs, flooding, damage, squatters. etc.

However, this situation was within the landlords control and, by choosing to accept the additional payment from the sitting tenant, the landlord made the decision to break their tenancy agreement with my friend. Had the landlord refused the payment, then you would be entirely right as the current tenant would then be, effectively, squatting.

[MrShed]

Its not I'm afraid - that post shows a complete lack of knowledge of housing law.

Not accepting payment from the tenant does not remove their RIGHT to remain resident in the property. If the tenant remains resident after their intended leave date, this does not allow the landlord the legal right to reclaim possession of the property. It means the landlord must proceed to court to reclaim the property - a time consuming process. During this time hte landlord IS ALLOWED to take rent to mitigate his loss.

HOWEVER, the ACT OF TAKING RENT IS NOT WHAT HAS ALLOWED THE TENANT TO REMAIN IN THE PROPERTY. Hence, this is outside of the landlords control, and he can re-house in alternative accomodation to fulfil his existing agreement.

[MrShed]

What I am trying to say is that the taking of a further rent payment is absolutely, completely irrelevant to the situation, due to the way the housing laws work.

And if you dont believe me, ask Planner - who I'm sure despite disagreeing with the rest of my post, will agree with that part

[Planner]

I agree with that part Mr Shed. I believe that rent offered by a tenant cant be refused by a landlord. The only way a tenancy can be ended is via a court order. That raises the question of how "tempoary" this arrangement is going to be.

[mcjohnson]

I don't disagree with you Mr. Shed, that the landlord has the right to collect rent. However, the landlord had collected rent from both the existing tenant and my friend. The landlord had to be coerced into providing the studio at the reduced rate, and had no intention of telling my friend that they had already collected rent from the sitting tenant.

There was no reason for the landlord to collect rent from the sitting tenant; as the landlord had already received rent for that property from my friend. Effectively the landlord has profitted from this situation, as they have collected rent on a studio apartment that would otherwise have been empty.

Personally I hope my friend discharges their contract with the landlord, and finds something (and someone) with more scruples - but then what do you expect in London.

[MrShed]

He hasnt profited I'm afraid. Yes he has made more money, but using another property. Do you suggest he should give your friend the other property rent free?

Lets just agree that the rent is NOT the issue here whatsoever. Or dont agree - but doesnt change the fact that it isnt.

[mcjohnson]

As he has increased his income without increasing his cost, he is making profit. Yes, he is using an asset to generate that profit, but that's business - the asset would otherwise been un-utilised, and thus been a cost. Thus the landlord has gained profit from my friends misfortune...

So, for advice, what is the situation if they accept another rent payment the week after, then the week after that? How long does my friend have to tolerate the alternative accomodation before she can discharge the agreement?

[MrShed]

Your landlord has generated profit which was not his original intention and is, in effect, a "side effect". More to the point, this has no relevance in law.