Landlord re-let property during our tenancy (& never secured deposit)

[fujifilm]

Hi there

 

We signed a six-month Assured Shorthold Tenancy on a London flat. Due to unhappiness at the flat, we moved out after just over five months.

 

The original landlord insisted that the flat was still ours for the six months of our tenancy agreement, unless he found tenants to replace us during the last couple of weeks. We were happy enough with this - after all, we had signed a six-month AST. Despite moving into our new place, we periodically went back to check on the old flat to see that everything was in order, and to give the place a good old spruce-up. We let him know that the place was clean, all our stuff was out of there and that, in theory, new tenants could move in.

 

We were due to be away on holiday the day our original AST was to elapse. We told the landlord that we wanted to hand the keys back and that we were happy to wait til after our AST had elapsed before we needed the deposit. He insisted that we hang onto the keys as we were "still legally responsible for the flat".

 

However, when we went round there a few days before the tenancy had expired, to pick up the last few items of our mail, we found a new, signed AST in the house, with new tenants' names, which was dated a full week before our one expired.

 

We sent a letter the next day, saying what we had found, and letting the landlord know that we wanted the deposit and believed we were entitled to a full week's rent, to cover the period where there were two active ASTs.

 

Furthermore we have subsequently discovered that our landlord never secured our deposit with a protection scheme (we didn't even know such schemes existed until we moved into our new place).

 

It seems as though we are owed, at the very least, the week's rent from the date the new tenants signed the AST until the expiry of ours, plus our deposit. I have been reading about "unlawful eviction" on the forums. Is it still the case if we have already moved into a new place? (The landlord insisted that we hang onto the keys as he "hadn't found any new tenants", but then surreptitiously moved some in, after once we'd given him the all-clear and said our stuff was out of the flat and the place was clean.) And the non-secured deposit situation looks like a costly and risky matter to bring to court.

 

To date, there has been no response to my letter to the landlord, and fourteen days have elapsed.

 

Any advice gratefully appreciated.

[Steve__M]

I think you are on the right tracks with what you think you are entitled to - ie. the rent, and deposit issues. I don't think it's worth claiming on protection from eviction since you've clearly left. You are entitled to try and claim the 3x deposit penalty (since he'd not protected the deposit). Try a threatening letter before action first and then decide what to do. It might be easier just to claim the deposit and rent.

[fujifilm]

Thank you, Steve__M. Do I need to have my Letter Before Action witnessed by anyone, or can I just send it Special Delivery? (Worried LL might just deny anything we wrote in it if it comes to court.)

 

Our situation has changed somewhat, and I am open to any suggestions:

 

LL claimed that cheques had been sent a week ago, but these never arrived. When I asked him to transfer cash by the end of the week, suggesting that waiting for a fresh batch of cheques would delay the process further, he got quite irate and quoted the "deposit must be repaid within 28 days" clause in the AST we signed.

 

Surely, if the deposit had been secured, we would have received it within 14 days, therefore this 28 days deadline, referring as it does to an unsecured deposit, is null and void?

 

And now he is claiming a dispute with the amount we think he owes us, and says that he explains this in a covering letter with the cheques.

 

At this point, it's unclear which portion of the money claimed he is reluctant to pay us, but it seems to me as though legally he has no leg to stand on.

 

How best should I word my Letter Before Action, and does he in fact have claim on any part of the deposit or this overlapping week of rent?

 

And what should I do next?

[Steve__M]

I think normal post is OK for an LBA - the main thing is for you to be confident he received it.

 

Unfortunately timescales can be quite slow in these things, whatever the contract or rules say. Patience and determination are the thing to have. Given what he has said you could perhaps start by writing a "polite" letter stating you haven't received the letter and cheque he claims to have sent, and setting down your position with regard to what you think you are due. Note that he moved in tenants without informing you.

 

Then send a more formal LBA a couple of weeks later saying much the same thing with the added threat of legal action if you don't hear anything.

[fujifilm]

Thanks again, Steve__M - that sounds like the way to go.

 

One more quick question:

 

We're anticipating that cheques are on their way, albeit for less than the full amount. Is it OK for us to deposit these cheques, or would that action somehow suggest that we accept them as full and final payment? We could do with banking whatever he sends, to tide us over, but not if that cancels our rights to the full amount.

[Steve__M]

I am not a lawyer.

 

If his covering letter says that his cheques are a full and final offer, then you cannot accept them if you want to pursue him for more, and you should return them. This I'm confident about.

 

If he just says "I am withholding X for Y" etc. then I think that you can accept the cheques on the basis that they cover the undisputed amount. But you'd best be writing back saying so and explaining why you are entitled to more.

 

I suppose there is a possibility that he might say the cheque was for full and final settlement of the deposit. Then you probably have the option to accept the money for the deposit but then pursue him for the rent part of your claim only. It all depends on what he says in his letter, the amount of money and how desperately you need the money I guess.

[fujifilm]

UPDATE:

 

LL has refunded deposit in full via bank transfer (and accompanying email), but made no mention of the £250 he still owes us for the final week's overlapping tenancies.

 

I have found a couple of internet links to a thing called the "Landlord Training Manual" which states that he cannot "double charge" for the period, but they don't link to any specific laws or test cases, so I'm not sure how to go about enforcing it.

 

If I threaten legal action in an LBA, and he gets a solicitor, and for whatever reason I lose the claim, would I have to pay his legal fees, as well as court costs? Surely as soon as he receives my LBA he'll seek legal advice, and I'd be putting ourselves at risk of having to pay for that?

 

Is there perhaps some authority to whom I can threaten to report him, to convince him into paying the £250? Or a legal precedent I can quote? I don't want to threaten legal action if I may end up throwing more than half the £250 into it.

[Steve__M]

Well done in getting your full deposit back.

 

Was there anything in writing with regards to your agreement with the landlord to pay rent until he found tenants?

 

In absence of an agreement, the position is based on common law. You breached the contract by leaving early. But normally he is only entitled to his losses. If he has found new tenants then the rent they pay reduces these losses.

 

You would, however, need to prove that he received the rent that you think he has received.

 

Normally in a small claim you are risking your costs and some expenses, but not full legal fees. You may want to see whether you can negotiate a portion of this money. Only guessing, but I think going to court would be a gamble given the claim is small compared with the costs and effort and given the difficulty in proving the claim.

[heliosfa]

... You breached the contract by leaving early. But normally he is only entitled to his losses. If he has found new tenants then the rent they pay reduces these losses...

 

I think you have misunderstood the OPs position Steve - the OP did move out early but paid their rent right up to the end and did enter the property to ensure it was clean etc. during the period of their tenancy when they were not in residence so I don't see why you think they breached contract?

 

From what I have read:

 

• OP found that the Landlord had a second AST with new tennants which overlapped with the final week of their AST - e.g. two agreements pruported to givve exclusive use for the same property.
  
• OP has found out that the landlord didn't secure the deposit as required by law.
  

LL has refunded deposit in full via bank transfer (and accompanying email), but made no mention of the £250 he still owes us for the final week's overlapping tenancies.

Good news on the deposit

 

I have found a couple of internet links to a thing called the "Landlord Training Manual" which states that he cannot "double charge" for the period, but they don't link to any specific laws or test cases, so I'm not sure how to go about enforcing it.

 

Do you have a copy of the AST? in it, it will state what you have "exclusive use" over. Obviously, common sense dictates that two people cannot have exclusive use over the same property at the same time and as such the landlord would not be able to meet his obligations under two overlapping ASTs.

 

Are you sure that this other AST you found was for the same property? I know that there are many landlords who have multiple properties and, as you have already said, he used the address of your property as his "contact" address. It would not supprise me if he used the same address for any other properties he had and it could be possible that the prospective tennats for another property were hand delivering their AST.

 

 

If I threaten legal action in an LBA, and he gets a solicitor, and for whatever reason I lose the claim, would I have to pay his legal fees, as well as court costs? Surely as soon as he receives my LBA he'll seek legal advice, and I'd be putting ourselves at risk of having to pay for that?

If the claim is under £5000 and is suitable for the small claims court, then there is the "no costs" rule. Obviously you would loose the claim fee and hearing fees if you lost however, if you win you get the fees back from the landlord.

 

Is there perhaps some authority to whom I can threaten to report him, to convince him into paying the £250? Or a legal precedent I can quote? I don't want to threaten legal action if I may end up throwing more than half the £250 into it.

As I've said, be sure that this other AST was for the same property and be sure of your facts.

 

In theory, provided he did "double let", you could go after him for a weeks rent. In addition, as he didn't protect your deposit, you could claim 3x the deposit as per the Housing Act (provided this was in E&W, and not Scotland).

 

 

Personally, I would leave it as is. I had a similar situation with the Landlord not protecting my deposit and new tennats moving in early (with my consent, i did get rent back for this) and I didn't pursue it because local landlords do talk to each other and if you get a name for being vindictive, no matter how right you are, it may make iot difficult for you to rent in the future. The other reason I didn't pursue him was that I am now also a landlord and being on friendly terms with other landlords is useful.

 

At the end of the day, what have you lost? you have your deposit back and you are not really out of pocket as you were not living in the property at the time.

 

Hope this helps,

H

[fujifilm]

Thanks again Steve, and hi Heliosfa!

 

UPDATE 2:

 

I sent a polite letter thanking the LL for the deposit and pointing out that he still owed us the overlapping week's rent. He replied that we were now to pay his reletting/advertising costs, as according to him we had broken our contract. Needless to say, his reletting costs dwarf the £250 to some degree, so he is now telling us that we owe him money, rather than the other way round.

 

This is the first he's mentioned that we're liable for any reletting fees, which I'm sure would not have come to light had we not discovered the new AST.

 

Surely we didn't break the agreement, as we paid the monthly rent in full and in advance, for the entire six-month AST? LL is the one who moved new tenants in during our tenancy, so if anyone broke the contract, surely it's him?

 

And reletting costs are an inevitable expense at the end of a tenancy, whether or not the property is advertised during an active tenancy. If the LL moves new people in without planning to let us know, why on earth should we be liable for these costs?

 

In answer to a couple of your questions:

 

 

• OP found that the Landlord had a second AST with new tennants which overlapped with the final week of their AST - e.g. two agreements pruported to givve exclusive use for the same property.
  
• OP has found out that the landlord didn't secure the deposit as required by law.

Correct.

 

Do you have a copy of the AST? in it, it will state what you have "exclusive use" over. Obviously, common sense dictates that two people cannot have exclusive use over the same property at the same time and as such the landlord would not be able to meet his obligations under two overlapping ASTs.

 

The phrase "exclusive use" doesn't appear in the AST, but there is the standard "quiet enjoyment without interruption from the landlord or any agent" clause.

 

Are you sure that this other AST you found was for the same property?

 

Absolutely. We discovered it in the property when we went round to clean. It has two new tenants' names on it, and is for the same address. We took photos of every page (but haven't mentioned this yet).

 

If the claim is under £5000 and is suitable for the small claims court, then there is the "no costs" rule. Obviously you would loose the claim fee and hearing fees if you lost however, if you win you get the fees back from the landlord.

 

Good to know - thanks!

 

In theory, provided he did "double let", you could go after him for a weeks rent. In addition, as he didn't protect your deposit, you could claim 3x the deposit as per the Housing Act

 

I believe, now that the deposit itself has been refunded in full, we cannot now claim for 3x it.

 

At the end of the day, what have you lost? you have your deposit back and you are not really out of pocket as you were not living in the property at the time.

 

As mentioned above, unfortunately we would now be out of pocket, as the LL has asked us for these reletting expenses.

 

All we want to do now is get our £195 back and convince the LL that we are not liable for his other costs.

 

Thanks again!

[heliosfa]

Thanks again Steve, and hi Heliosfa!

hello! /me waves

 

...as according to him we had broken our contract. Needless to say, his reletting costs dwarf the £250 to some degree, so he is now telling us that we owe him money, rather than the other way round.

in what way does he claim you breached contract?

 

This is the first he's mentioned that we're liable for any reletting fees, which I'm sure would not have come to light had we not discovered the new AST.

it does sound a little bit "blackmaily"

 

Surely we didn't break the agreement, as we paid the monthly rent in full and in advance, for the entire six-month AST? LL is the one who moved new tenants in during our tenancy, so if anyone broke the contract, surely it's him?

agreed on both points

 

And reletting costs are an inevitable expense at the end of a tenancy, whether or not the property is advertised during an active tenancy. If the LL moves new people in without planning to let us know, why on earth should we be liable for these costs?

Yup, they are a cost of being a landlord. I know that when my tennants leave, I will have to absorbe the cost of finding new ones. This is what the rent covers - costs of the business and gives rise to some profit.

 

If you had refused to pay rent for the period, then yes he could go for the fees.

 

I believe, now that the deposit itself has been refunded in full, we cannot now claim for 3x it.

I'm not sure, so I will defer to someone with more knowledge of the penalty provisions. My readding of the HA indicates that it "should" be claimable but a) i wasn't looking into it in huge detail and b) i havent kept up with case law re. deposits.

 

As mentioned above, unfortunately we would now be out of pocket, as the LL has asked us for these reletting expenses.

which he can go whistle for as you are not liable...

 

All we want to do now is get our £195 back and convince the LL that we are not liable for his other costs.

true, i suppose I am in the process of a claim for £35, so if I disaproved based on the amount it wouldd be the pot calling the kettle black

 

Thanks,

H

[fujifilm]

Thanks again, Heliosfa.

 

In answer to your questions:

 

in what way does he claim you breached contract?

 

He suggests four ways in which he believes we breached the contract:

 

(1) He says we never gave written notice to terminate our AST. However, we did phone him well in advance to let him know, hence his showing round of prospective tenants.

 

(In any case, I'm pretty sure a tenant is not obliged to serve notice on a fixed-term AST. That said, he sent us this link which seems to suggest we do in fact need to serve notice:

 

direct.gov.uk/en/HomeAndCommunity/Privaterenting/Tenancies/DG_189123 ("Ending a tenancy or licence if you are a tenant")

 

...however there are thousands of other websites which make very clear that no notice is required to move out at the end of an AST. Can you confirm this?)

 

(2) We physically moved out of the property three weeks before the end of the AST (though continued to pay rent and regularly check up on the property).

 

(3) We encouraged him to get new tenants in early, in the hope that he would be able to refund us part of the rent. However, as he refused us this option, and insisted we pay rent for the entire AST, we didn't in fact breach the contract (I think?).

 

(4) We wanted to meet up with him and hand the keys back before the end of the AST, though this was partly to make things as easy as possible for him should he find new tenants early, and also because we were away on holiday when the AST was to elapse. Note he refused early acceptance of the keys, so we did in fact return them at the end of the AST.

 

it does sound a little bit "blackmaily"

 

Indeed so!

 

Yup, they are a cost of being a landlord. I know that when my tennants leave, I will have to absorbe the cost of finding new ones. This is what the rent covers - costs of the business and gives rise to some profit.

 

Is that enshrined in law somewhere?

 

which (expenses) he can go whistle for as you are not liable...

 

If he digs his heels in and we have to go the small claims route to get our £250 back, might he counterclaim (albeit, we hope wrongly) for his expenses, thus putting us at risk of a large bill?

[heliosfa]

He suggests four ways in which he believes we breached the contract:

 

(1) He says we never gave written notice to terminate our AST. However, we did phone him well in advance to let him know, hence his showing round of prospective tenants.

 

(In any case, I'm pretty sure a tenant is not obliged to serve notice on a fixed-term AST. That said, he sent us this link which seems to suggest we do in fact need to serve notice:

 

direct.gov.uk/en/HomeAndCommunity/Privaterenting/Tenancies/DG_189123 ("Ending a tenancy or licence if you are a tenant")

 

...however there are thousands of other websites which make very clear that no notice is required to move out at the end of an AST. Can you confirm this?)

I didn't give written notice to end my fixed term last year and this year i would not expect my tennats to give me written notice if they were leaving at the end.

 

What do the terms of your AST say? Also, it could probably be argued that as he started to look for new tennats after your oral "notice", he has accepted it.

 

If he really wants to go down the route of you not giving him notice, then him getting new tennats in before the end of your fixed period is an illegal eviction as he hasn't given you 2 months written notice in a S21. notice as required and he has moved them in before you would have failed to pay rent if it was due, so before any breach of contract, hence him breaching contract...

 

(2) We physically moved out of the property three weeks before the end of the AST (though continued to pay rent and regularly check up on the property).

not a breach of contract, if you told him it was going to be unoccupied for a bit what is the problem? really there is no difference to if you had taken a 3 week holiday.

 

(3) We encouraged him to get new tenants in early, in the hope that he would be able to refund us part of the rent. However, as he refused us this option, and insisted we pay rent for the entire AST, we didn't in fact breach the contract (I think?).

again, not a breach of contract - you were exploring options and he didn't have to look...

 

(4) We wanted to meet up with him and hand the keys back before the end of the AST, though this was partly to make things as easy as possible for him should he find new tenants early, and also because we were away on holiday when the AST was to elapse. Note he refused early acceptance of the keys, so we did in fact return them at the end of the AST.

again, not a breach of contract. you were expecting to be away and wanted to make his life easy. I returned my keys last year a whole two months early.

 

 

Is that enshrined in law somewhere?

well, paying his costs in finding a new tennat wasn't in the your contract was it?

 

The landlord is in business to rent property. like any other business, there are expenses the business pays. In the case of a landlord, mortgage, insurance, gas safety checks, maintenance, agency fees, costs of finding customers, tax, etc. The rent should be at a level to cover these expenses and give his busniess some profit.

 

say you went to buy soething from a shop. the price you see is the price you pay, that is the price the business has set to cover their costs. you wouldn't then expect to have to pay for the time of the staff member who served you in addition to the item cost.

 

 

If he digs his heels in and we have to go the small claims route to get our £250 back, might he counterclaim (albeit, we hope wrongly) for his expenses, thus putting us at risk of a large bill?

He can try to counter sue you but a) he would have to prove you breached contract and that he suffered damages (he would have needed new tennants about that time anyway...) or b) the ccontract provided for you to pay expenses of finding replacements at the end of the contract.

 

 

Either way, it looks like the landlord is being stubborn and managing to shoot himself in the foot...

 

H

[mariner51]

Devil's Advocate

 

LL accepts keys handed back early = acceptance of surrender of Tenancy before due date and loss of rent

Whilst the accepted opinion is you can vacate the property on the last day of the fixed term without prior Notice, you in fact moved your furniture out early, signifying you no longer occupied in the property. Hence it is reaonable to expect written Notice to vacate early to be served by end of month 5 even if rent is paid to the end of the fixed term.

If the Tenancy ceases without Notice on the last day of the fixed term, then the same condition should apply for the LL, but it doesn't, a periodic tenancy is created the following day, in the absence of another AST.

A verbal Notice, though late, MAY be valid, but how can the OP prove it was served. Most legal Notices should be served in writing albeit by email.

 

We assume the 6 month AST fixed term ran for 6 calender months not 6 rent periods.

 

Finally, the crux...

 

OP states he saw a signed AST for new tenants pre-dating the end of his fixed term. Was this date the same as in the clause which states'this tenancy to commence on ? I always get tenants to sign with date of signing/paying deposit, even if the Tenancy does not commence for a further few days as indicated in the rel clause.

Can the OP show the new tenants had 'moved in'/were occupying the property before the end of the OPs fixed term as he appears to have been on holiday during the last crucial few days?

 

I accept the OP was reasonable by giving advance verbal warning, keeping an eye on the property and paying the full rent due.

 

Just a few points to consider in the absence of the LL account

Edited January 25, 2011 by mariner51

[fujifilm]

Thanks again Heliosfa, and hello Mariner51!

 

Incidentally, Heliosfa, I'd be interested to hear your feedback on the points raised here by Mariner51.

 

Mariner51, I'll respond to your points as best I can, here:

 

LL accepts keys handed back early = acceptance of surrender of Tenancy before due date and loss of rent

 

But the LL refused the early return of the keys. Furthermore they were never at risk of financial loss, as we had already paid the six months' rent.

 

Whilst the accepted opinion is you can vacate the property on the last day of the fixed term without prior Notice, you in fact moved your furniture out early, signifying you no longer occupied in the property. Hence it is reaonable to expect written Notice to vacate early to be served by end of month 5 even if rent is paid to the end of the fixed term.

 

See Heliosfa's point above relating to holiday. Also LL insisted that we were still legally responsible for the flat, hence our regularly going there to clean, collect mail and check doors were locked. Note that no refund was offered and that the new tenants were moved in secretly. We wouldn't have found out about them had we not been going round there regularly.

 

A verbal Notice, though late, MAY be valid, but how can the OP prove it was served.

 

By the fact that numerous viewings happened with our consent, soon after notice was given. Surely if we had decided we wanted to stay in the flat, we wouldn't have allowed these viewings? In any case, no notice required to leave at end of AST.

 

OP states he saw a signed AST for new tenants pre-dating the end of his fixed term. Was this date the same as in the clause which states'this tenancy to commence on ?

 

Yes.

 

Can the OP show the new tenants had 'moved in'/were occupying the property before the end of the OPs fixed term as he appears to have been on holiday during the last crucial few days?

 

We were on holiday during the last two days of our original AST, but went round there the day before. The heating and lights were on, the back door was unlocked, and several of the new tenants' possessions were dotted around the flat. The signed tenancy was in the flat.

 

I accept the OP was reasonable by giving advance verbal warning, keeping an eye on the property and paying the full rent due.

 

The crucial thing to remember was that the landlord would have to advertise for new tenants near the end of our AST anyway, so the costs of these are an inevitable expense of being a LL. Also he was quite strict about insisting we were still the legal tenants, refusing to accept early key handover or even do a walk-through with us, and made no mention of these new tenants at any point.

[heliosfa]

Devil's Advocate

i always welcome counter points

 

LL accepts keys handed back early = acceptance of surrender of Tenancy before due date and loss of rent

in the circumstances it seems that the OP was being considerate rather than surrendering the tennancy, e.g. making sure that she did not cause damage to the landlord by depriving him of the keys at the end of the tennancy so that new tennats could move in straight away. e.g. so that the landlord would not need to get a new set or hold off the new tennants move in till OP was back. in either case, the LL refused to accept this, so no early surrender.

 

Whilst the accepted opinion is you can vacate the property on the last day of the fixed term without prior Notice, you in fact moved your furniture out early, signifying you no longer occupied in the property. Hence it is reaonable to expect written Notice to vacate early to be served by end of month 5 even if rent is paid to the end of the fixed term.

this is potentially a sticking point, but the OP was still taking responsibility for the property by ensuring it's security, etc. and made sure that they were out before it turned into a periodic.

 

 

If the Tenancy ceases without Notice on the last day of the fixed term, then the same condition should apply for the LL, but it doesn't, a periodic tenancy is created the following day, in the absence of another AST.

and this is the point i was making, if the LL is claiming taht the OP didn't give notice and the OP was not behind on rent, then as the LL would have needed a S21 in Month 4 to move tennants in right at the end of the AST.

 

What the LL has done is moved new tennants in before a) a rent payment was missed and b) the end of the fixed period.

 

 

Incidentally, Heliosfa, I'd be interested to hear your feedback on the points raised here by Mariner51.

here you go

 

 

Note that no refund was offered and that the new tenants were moved in secretly. We wouldn't have found out about them had we not been going round there regularly.

this is why I said it semeed he shot himself in the foot...

 

 

We were on holiday during the last two days of our original AST, but went round there the day before. The heating and lights were on, the back door was unlocked, and several of the new tenants' possessions were dotted around the flat. The signed tenancy was in the flat.

so you found the place "set up" for habitation and insecure three days before the end of your term?

 

This makes me feel that the landlord is on a really sticky wicket because it seems that technically he has evicted you illegally.

 

 

Also he was quite strict about insisting we were still the legal tenants, refusing to accept early key handover or even do a walk-through with us, and made no mention of these new tenants at any point.

when did he do the walkthrough? was it after the new tennants were in?

 

H

Edited January 26, 2011 by heliosfa
fixing quotes - i got a bit paste happy!

[fujifilm]

in the circumstances it seems that the OP was being considerate rather than surrendering the tennancy, e.g. making sure that she did not cause damage to the landlord by depriving him of the keys at the end of the tennancy so that new tennats could move in straight away. e.g. so that the landlord would not need to get a new set or hold off the new tennants move in till OP was back. in either case, the LL refused to accept this, so no early surrender.

 

this is potentially a sticking point, but the OP was still taking responsibility for the property by ensuring it's security, etc. and made sure that they were out before it turned into a periodic.

 

Could LL claim we coerced him into searching early for new tenants? I'm guessing not, seeing as he insisted on our fulfilment of AST.

 

and this is the point i was making, if the LL is claiming taht the OP didn't give notice and the OP was not behind on rent, then as the LL would have needed a S21 in Month 4 to move tennants in right at the end of the AST.

 

What the LL has done is moved new tennants in before a) a rent payment was missed and b) the end of the fixed period.

 

LL claims he was unable to set a break clause in the AST, because he couldn't be confident of what date he might find new tenants. However this didn't stop him from having the confidence to move someone in early anyway!

 

so you found the place "set up" for habitation and insecure three days before the end of your term?

 

This makes me feel that the landlord is on a really sticky wicket because it seems that technically he has evicted you illegally.

 

Surely not, though, if we had already encouraged him to seek new tenants, and told him our belongings were out of there? That said, it was pretty unsettling to go in there and see someone else's stuff.

 

when did he do the walkthrough? was it after the new tennants were in?

 

To this day, we have never had a walkthrough. The last time the LL was on the premises with us was over a month before the end of the AST. In any case, there was no initial walkthrough upon moving in.

[Steve__M]

Just a comment to heliosfa about the "breach" of the contract. The landlord could have insisted on tenancy lasting a full six months. There appears to be only a verbal agreement in place following the OPs decision to move out early. In absence of knowledge of that agreement, the worst case scenario should be that the LL is entitled to his losses. That's the answer to the question that was asked.

 

It appears now that the LL is alleging other breaches. But he cannot have his cake and eat it. He is still only entitled to his losses which have been mitigated by getting new tenants in early.

 

If the breach had not occurred, then the tenancy would have lasted one more month. At this point the LL would have had to pay out reletting costs anyway. So arguably he ought to be entitled to count only 1/6 of the reletting costs.

 

Reletting costs can be expensive if going through an agent. Typically they will charge a half or more of one month's rent.

 

Have you got in writing an acknowledgement from the landlord that he has received rent for the period in question? Such an acknowledgement would be useful to have.

 

One suggestion is that you write and ask for details of the reletting costs.

 

If he responds then possibly write back arguing that you would accept paying 1/6 of the costs out of the 250 you are owed (assuming that is an acceptable negotiating position to you). If you do this, set a time limit for the offer and possibly write on the top "Without Prejudice" if you intend ultimately to claim the whole amount in court if he doesn't agree - this should mean that he cannot show this offer to the judge to reduce his liability.

[fujifilm]

Hi again Steve

 

Just a comment to heliosfa about the "breach" of the contract. The landlord could have insisted on tenancy lasting a full six months. There appears to be only a verbal agreement in place following the OPs decision to move out early. In absence of knowledge of that agreement, the worst case scenario should be that the LL is entitled to his losses. That's the answer to the question that was asked.

 

LL had no losses, as we continued to pay rent for the entire AST. If LL decided to bring in new tenants the day after our AST expired, his costs would have been exactly the same, but he wouldn't have had this additional £250 from the overlapping tenancies. For whatever reason (a bit of extra xmas spending money?) he chose to install the new tenants a full week before our AST expired.

 

It appears now that the LL is alleging other breaches. But he cannot have his cake and eat it. He is still only entitled to his losses which have been mitigated by getting new tenants in early.

 

I believe he is not in fact entitled to ask us for the letting costs, as we pledged to pay the entire rent for the AST (and did so). Therefore he is just creaming the profit off this overlapping week's rent.

 

If the breach had not occurred, then the tenancy would have lasted one more month. At this point the LL would have had to pay out reletting costs anyway. So arguably he ought to be entitled to count only 1/6 of the reletting costs.

 

I believe we didn't actually breach the tenancy.

 

Have you got in writing an acknowledgement from the landlord that he has received rent for the period in question? Such an acknowledgement would be useful to have.

 

No, but we have photographs of the new tenancy agreement, complete with dates, amounts and signatures.

 

One suggestion is that you write and ask for details of the reletting costs.

 

We shouldn't have to pay a penny of his reletting costs.

 

Heliosfa?

[mariner51]

Originally Posted by mariner51

Note that no refund was offered and that the new tenants were moved in secretly. We wouldn't have found out about them had we not been going round there regularly.

Originally Posted by mariner51 We were on holiday during the last two days of our original AST, but went round there the day before. The heating and lights were on, the back door was unlocked, and several of the new tenants' possessions were dotted around the flat. The signed tenancy was in the flat.

Originally Posted by mariner51 Also he was quite strict about insisting we were still the legal tenants, refusing to accept early key handover or even do a walk-through with us, and made no mention of these new tenants at any point.

 

Not my quotes.

 

 

IMO by not accepting the keys before end of term, the LL was signifying the T was still bound by STA.

The OP admits they only gave verbal Notice later than reqd(?) and vacated the property before the end of the fixed term.

When exactly was this? OP indicates 2 days after going on holiday ands 3 days after last visit. Steve-M thinks 6 weeks approx.

 

If the property is vacated early, the LL is entitled to charge full early re-advertising costs to find a new tenant, subject to STA

If there was an overlap of rents paid, then the OP should be refunded his overlap portion IMO

 

Unless there is some flexibility by both sides, this will end up in Court and the Judge will decide on the facts presented.

As with any Judgement of Soloman, one side is going to feel aggrieved and the other rewarded for making mistakes

It is poss the adjudication will be via SCC since only money owing is involved anf the Adj may not be a specialist in LL & Ts

Edited January 25, 2011 by mariner51

[fujifilm]

Hi Mariner51!

 

Thanks for your advice.

 

IMO by not accepting the keys before end of term, the LL was signifying the T was still bound by STA.

 

Agreed. Which surely goes agains their claim for the reletting costs.

 

The OP admits they only gave verbal Notice later than reqd(?)

 

No notice required to leave when an AST elapses.

 

...and vacated the property before the end of the fixed term

When exactly was this? OP indicates 2 days after going on holiday ands 3 days after last visit. Steve-M thinks 6 weeks approx.

 

We physically moved our belongings out of the property (and into our new one) three weeks before the end of our original AST. However we kept returning to the property, to clean, pick up our post, and generally check up on the place. We made several visits during the last three weeks of the AST, the final of these being two days before the end of our AST - the day we discovered the new tenancy.

 

If the property is vacated early, the LL is entitled to charge full early re-advertising costs to find a new tenant, subject to STA

 

But surely the property is only vacated if we decide to stop paying rent on it, and abandon? As far as we were concerned, and at the LL's continued insistence, we were still legally responsible for the flat.

 

If there was an overlap of rents paid, then the OP should be refunded his overlap portion IMO

 

Agreed.

 

Unless there is some flexibility by both sides, this will end up in Court and the Judge will decide on the facts presented.

As with any Judgement of Soloman, one side is going to feel aggrieved and the other rewarded for making mistakes

It is poss the adjudication will be via SCC since only money owing is involved anf the Adj may not be a specialist in LL & Ts

 

Fingers crossed!

[mariner51]

We physically moved our belongings out of the property (and into our new one) three weeks before the end of our original AST

 

So for 3 weeks the property was unfurnished and tech unoccupied.

Did this breach the LLs buildings insurance?

When did you stop paying C Tax at that address and start paying for the new address?

When did you take any utility meter readings and cancel your utilities resp for the old place?

[heliosfa]

Not my quotes.

appologies - i got a bit copy/paste happy! gone to fix it now.

 

Fuji, as I said, personally I would be inclinded to leave it as is. Yes, technically, the LL has probably done wrong by moving them in.

 

the reason I said that it might be an illegal eviction is that he rejected your request for early move out and insisted on the term. as such, if he had new tennats, he should have spoken to you and asked if you still wanted to end early. he didn't, therefore deprived you of the "private and quiet enjoyment" you could have had.

 

H

[fujifilm]

So for 3 weeks the property was unfurnished and tech unoccupied.

 

But surely, as we continued to pay rent and maintained the place, it was just the same as taking a holiday?

 

Did this breach the LLs buildings insurance?

 

No - it would have to have been vacant for four weeks. There's a clause in our contract which says to let LL know if the property is vacant for 28 days or more.

 

When did you stop paying C Tax at that address and start paying for the new address?

 

We continued to pay council tax for the entire duration of our AST. In fact we ended up paying the first week of these people's council tax for them.

 

When did you take any utility meter readings and cancel your utilities resp for the old place?

 

We took meter readings as near to the end of our AST as possible, and ended up paying for the whole term.

 

---

 

Fuji, as I said, personally I would be inclinded to leave it as is. Yes, technically, the LL has probably done wrong by moving them in.

 

the reason I said that it might be an illegal eviction is that he rejected your request for early move out and insisted on the term. as such, if he had new tennats, he should have spoken to you and asked if you still wanted to end early. he didn't, therefore deprived you of the "private and quiet enjoyment" you could have had.

 

UPDATE 3:

 

We just received the following message from the LL:

 

"I have taken legal advice, in response to your most recent message.

 

I have been advised that you are entitled to your last week's rent, and I am entitled to the reletting charges.

 

As an offer I will promise not to pursue the balance on the fees if you waive the week's rent. This will put you in a position where you are financially better off. However if you decline I will pay the week's rent and take further action to recover the fees from you jointly."

 

Seems a bit "blackmaily" again. I sense he's bluffing, but I'm not sure. Advice please!

Edited January 26, 2011 by fujifilm

[heliosfa]

UPDATE 3:

 

We just received the following message from the LL:

 

"I have taken legal advice, in response to your most recent message.

 

I have been advised that you are entitled to your last week's rent, and I am entitled to the reletting charges.

 

As an offer I will promise not to pursue the balance on the fees if you waive the week's rent. This will put you in a position where you are financially better off. However if you decline I will pay the week's rent and take further action to recover the fees from you jointly."

 

Seems a bit "blackmaily" again. I sense he's bluffing, but I'm not sure. Advice please!

Interesting, it might be worth asking him what part of your contract makes you liable for his fees?

 

And i suppose that you could raise the issue that it might have been an illegal eviction, see what he does then...

 

just be careful how you phrase it - don't make it seem that you are rejecting his "offer"

 

H