Help, I have given notice to Tenants

[bambina13]

Hi,

I'm hoping someone can help me. We recently gave our tenants 2 months notice to terminate the tenancy agreement as we have sold the flat. We advised them in the letter that we expected them to leave by the 4th of July and pay any rent due up until then, and upon vacating if the property is left in good order then we will refund the deposit.

They have been very good tenants, always paid the rent on time and I have said I would be happy to give references, they have also left the flat in good order.

However I received a phone call yesterday from a lettings agency asking for a reference as the tenants will be moving out at the weekend. This was news to me. I rang the tenant and he explained that there were no properties in the area and he had to take this one, so can I meet him at the weekend to give him back his deposit.

Is he within his rights to do this, I would have thought that as he has only given me 4 days notice that he is leaving I would be able to withold his rent for the last month. OR is he right in saying that as I have given him 2 months notice he can leave within that period and demand the deposit back. I was all set to pay him his deposit back at the beginning of July. Now however I have a mortgage payment to cover for next month which I wasn't counting on.

Can someone please advise???

[MrShed]

As soon as you have given notice the tenant can leave at any time, and only pay rent pro-rata up until they leave.

[bambina13]

Hi Mr Shed, thanks for the info.

[MrShed]

No problem. For what its worth, I sympathise with your position - but in fairness terms, it is unfair to say the tenant must leave, but must ONLY leave on a particular date - hence why the law is the way it is. However, the deposit, I would not be held over a barrel by him - I personally would not return the deposit until you have had a good chance to check over the property WITHOUT the tenant present. Certainly nothing wrong with returning the deposit a week after the tenant leaves.

[LittleMissSunshine]

For what its worth, shouldnt it matter when the tenant wants his deposit back? After all as far as i understand the landlord needs to keep the deposit in a safe place and not use it for anything else. Or do i just dont understand it anymore?

Its something i would like to know as i am a tenant, have given notice and would like to get my deposit when i leave if there is a clear check out.

And why do you also need to do an extra check out without the tenant? If the tenant has a proper checkout with landlord, and both sign the check out papers, is it than still possible for landlord to come with uses after this if he does an extra checkout? How do i as tenant know for sure this is caused by me??

Just like to clarify things here...

Thanks
LMS

[MrShed]

LMS - I would suggest you read my posts on this thread, as I have covered the topic there:

http://www.consumeractiongroup.co.uk...hlight=deposit

[LittleMissSunshine]

Thanks MrShed, hadnt seen that one

LMS

[Aequitas]

Originally Posted by MrShed

As soon as you have given notice the tenant can leave at any time, and only pay rent pro-rata up until they leave.

Are you sure that is right?

I think the law is as follows:

Section 5 (1) of the Housing Act 1988 provides that an assured tenancy (and it must be remembered that an AST is an assured tenancy) can only be brought by the landlord by a court order. A Section 21 notice requiring possession does not bring the tenancy to an end. Accordingly the tenant is in the same position as he would be if no notice had been served. This means that:


(a) If a fixed term is still running he can leave at any time on or before the term date without giving any notice.


(b) If the tenancy is or has become periodic (i) if no notice is served by the tenant to bring the tenancy to an end it continues until the date on which a court order for possession takes effect (ii) the tenant can serve notice to bring the tenancy to an end in accordance with the law, even if his notice would expire before the date for possession specified in the Section 21 notice.


So, strictly, even a tenant who intends to leave on the date specified in the Section 21 ought to give notice. In practise what happens is that the tenant hands over and the landlord accepts possession and that has the effect of bringing the tenancy to an end by a surrender by operation of law. It would be interesting to know what the courts would make of a case where the landlord serves a section 21 notice and then sues the tenant if the tenant leaves without giving notice. Hopefully the court would find that in giving the S 21 notice he had waived his right to a tenant's notice if the tenant left on or after the date specified in the notice – the tenant has after all complied with the landlord's request to give up possession. A tenant leaving before the date specified in the Section 21 notice could be in difficulty, but I cannot see the court awarding the landlord rent for any period after the date specified in the Section 21 notice.

Finally, a tenant must of course always pay rent up to end of a fixed term.

[MrShed]

Yes I am sure - just got out of hospital today though after op so cant really answer in detail (what on earth am I doing coming on here after general anasthetic haha!!)

[Aequitas]

Originally Posted by MrShed

Yes I am sure

It would be nice if your are right. I should like to be proved wrong, but I am sure this is a point that the legislators overlooked. I await a further post with interest.

[MrShed]

Just to clarify, I totally agree that being served a S21, you still cannot leave during the FIXED term. However, I still think you can in a periodic tenancy. I will see if I can find quotes that substantiates this in law. My knowledge on this is based on a long discussion on the topic with a group of rental experts, and the verdict was unanimous on this one. However, I always accept when I am wrong, and this is certainly a constructive debate, so any evidence you have to the contrary please post it so I can give it a read

By the way, Aequitas, welcome to the forum having read a few of your posts you are clearly knowledgeable and a welcome addition to the forum

[Aequitas]

My argument is based solely on the wording of the statute and is as above.

[bambina13]

Thanks for the advice, can someone just clarify that: a. if I have served notice on the tenants to leave by a certain date, and they have decided to leave before the end of a month which they have already paid to me. Are they within their rights to ask for the remainder of that month back as a refund? i.e. they have paid up until the 3rd of June but are leaving on the 28th May and are asking for 6 days rent as a refund?

[Aequitas]

Originally Posted by bambina13

Are they within their rights to ask for the remainder of that month back as a refund? i.e. they have paid up until the 3rd of June but are leaving on the 28th May and are asking for 6 days rent as a refund?

No. There is a common law rule that rent paid is advance is never refundable - the only exception is if the express terms of the tenancy provide otherwise.

[MrShed]

With all due respect, I would love to see evidence of this - it severely contravenes contract law and the rights of the tenant if this is actually the case.

[Aequitas]

Originally Posted by MrShed

With all due respect, I would love to see evidence of this - it severely contravenes contract law and the rights of the tenant if this is actually the case.

I was afraid you would ask that! As I live in Spain I do not have any reference books to refer to and Googling has not thrown anything up. I am afraid you'll have to check the point in Woodfall or Aldridge.

[MrShed]

I shall have a look