taken to court by landlord!!

[colinsteward]

Advise please! I agreed to rent a house with the landlord. Signed a tenancy agreement and forwarded my deposit cheque. At this point for personal reasons I could not take the house and had to pull out. I cancelled my cheque and informed the landlord. He is now taking me to court for breach of contract and wants nearly £3000 from me for lost rental. I did offer him over £1000 as a good will gesture but it was refused.

I want to defend the claim on the basis that allough I had signed the contract the landlord had not signed and sent me his copy of the contract so at the point I pulled out it was not legally binding??

How do I stand?? am up up the river without a paddle or should I defend ??
Thanx anyone??

[knoxvillain]

Other more informed people will correct me if I am wrong but from what I have seen in other threads, the tenancy agreement doesn't come into affect until there is a physical handover of the property. ie you get the keys and start to move. Did this happen?

[tiglet]

Also, the landlord would have to prove that he has actually lost the rent i.e. no-one else moved in.

[Joa]

Signed tenancy agreement and an accepted offer to pay creates a legally binding, enforceable situation (although it doesn't stand alone; other actions can create a tenancy; rent payments and possession). There are few defences in this situation: if the landlord breached the contract first, for example: AFTER the tenancy was supposed to start, you still were not given a key, meaning that you were not able to occupy) or if the landlord accepted the surrender .
The landlord would need to show that he mitigated his losses; i.e. that he made a reasonable effort to re-let the property. He would need to show evidence; newspaper adverts, estate agents involvement etc. So yes, he would have suffered some loss, but he needs to limit this loss. There has been a recent caselaw which weakens the argument that landlord needs to mitigate his loss, so do not relay on this too much. HOWEVER, if the landlord accepts new tenants, then this act causes the previous (your) tenancy to end and you are no longer responsible for this tenancy.

To summarise: renew your offer, as it's quite generous. Remind the landlord that he needs to mitigate his losses, keep a sharp eye on the property- if you are not in the area, call estate agents to find out if it's on the market, has been let, sold, etc. Calculate amount of months that the property stood empty, add some advertising costs, contact the landlord again and make another (lower, higher) offer.
Few questions: how much was rent? what did the landlord say after you backed out? did when did this all happened?

[Joa]

Further to my previous post; there has been a caselaw which weakens tenants' case on the mitigation of loss issue. 1) Reichman (2) Dunn v (1) Beveridge (2) Gauntlett, where it was held that Landlord is under no obligation to mitigate loss when seeking to recover rent due under a lease and tenant had abandoned the premises. (Court of Appeal, 13 December 2006).
Of course, the landlord might not know about this new ruling, and may possibly be willing to negotiate on that basis?

The contract for a tenancy became enforceable on the date that the tenancy was agreed to begin. Cancellation of the deposit did not prevent the contract being enforceable.

You need to find out the date the property was re-let and you will have to assume that you are liable for the rent up until this point I am afraid. The act of re-letting constitutes an unequivocal acceptance of your surrender of the tenacy. There is no liability after this point.

[colinsteward]

Thanx Joa for your help. Still a bit confused!! You say a signed tenancy agreement and an accepted offer is legally binding? but surely the agreement must be signed by both parties and exchanged? What if the landlord found a better tennant before I moved in? I didnt have a signed agreement. The landlord admits in a letter I have that he had never sent his signed agreement to me... perhaps he was holding it back just incase he wanted to get out of the agreement?. I cancelled within 2 days of signing my agreement and had not received keys or agreed specific date to move in.
At this point the landlord had no losses as the let had not been advertised, I heard through word of mouth. So in my opinion the landlord was in no worse a position than when I agreed to take the let, maybe he was just a week or so behind his scheduled advertising date as the timescale from me viewing the property, agreeing to take it and cancelling was only a matter of a week or ten days?

[blacksheep1979]

Whilst the landlord has to give you a copy of the contract if requested, the fact that he has not done so does not make the contract unenforcable.

[Joa]

Indeed. And the fact that you have sent him your copy and the deposit (even if later cancelled) means that you have agreed to the T&Cs.

[Lee75_UK]

(I cancelled within 2 days of signing my agreement and had not received keys or agreed specific date to move in)

I am in now way qualified to give lawful advice, but what does jump out at me is, under any contractual signing, both parties have a cooling off period in which to back out of the agreement (I beleive normally 7 days).

Colin has stated in his post, he cancelled after 2 days, surely this is his right under his cooling off period??

Lee

[blacksheep1979]

Originally Posted by Lee75_UK

I am in now way qualified to give lawful advice, but what does jump out at me is, under any contractual signing, both parties have a cooling off period in which to back out of the agreement (I beleive normally 7 days).

Lee

Loads of contracts don't have a cooling off period

[mmeraj]

[knoxvillain]

Did you sign it in the presence of landlord/letting agent?

[colinsteward]

Hi Knovillian
No it was done at my office without the landlord being present. Still getting conflicking views as to whether the contract is legally binding?!!

[Joa]

In my opnion the contract was binding. I would recommend however that you consult Shelter or a solicitor to be 100% sure.
You have signed and paid. The property was kept for you- not advertised to others. I know it happened 2 days before the tenancy was supposed to start, and that's what makes us think....hmmm...maybe did you back out in time?
My hunch is that that you would be liable and that you should concentrate on making sure this liability is as low as possible by making sure you know immediately when the property is re-let.