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


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

 

He's not prepared to elaborate.

 

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

 

I think we might drop in your suggestion of saying "2 months' notice required to serve Section 21".

 

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

 

Indeed. Thanks!

 

Does it seem a bit weird to you that he's giving us this offer at all? Surely if his legal representation told him he was in the right, he'd just sting us for the cash and not even offer to compromise? Hence me thinking it's all a big bluff.

 

What happens if he goes to the small claims court before we do?

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His entitlement to fees is not contractual. It is based on the fact that in his view you wanted to breach the contract by leaving early. You said:

 

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.

 

So you are implying that you had agreed to him attempting to re-let the flat.

 

So while he is not "bluffing" as such, he does however seem to want to have his cake and eat it as he would have been liable for re-letting costs one month later anyway. As I said, logically one would have thought 1/6 of the fees were at most legitimate based on the fact that the tenancy ended 1/6 before it should have done. But I don't know the precedents.

 

Has he said how much the fees are?

 

Since he says "if you decline I will pay the week's rent and take further action to recover the fees from you jointly." it is tempting to call his bluff as you would have the money and he might have a difficult time proving his claim - it seems like a strange offer to make.

 

However, negotiating a compromise might be best. As far as I can see any money you get back is a bonus on what you expected, surely?

 

I really do not think the unlawful eviction thing is a goer if you weren't living there, and it might irritate him. His position does not seem at the moment to be unreasonable.

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His entitlement to fees is not contractual. It is based on the fact that in his view you wanted to breach the contract by leaving early. You said:

 

...

 

So while he is not "bluffing" as such, he does however seem to want to have his cake and eat it as he would have been liable for re-letting costs one month later anyway. As I said, logically one would have thought 1/6 of the fees were at most legitimate based on the fact that the tenancy ended 1/6 before it should have done. But I don't know the precedents

The OP does not seem to have breached contract (Fuji, can you post up a copy of your agreement, with sensitive details removed, so that we can see what you signed up for) as the rent was still being paid, council tax and bills being paid, and the property was being looked after.

 

I do not see how the landlord could have suffered losses - the reletting costs would have been due at that time as the fixed term was coming to an end and new tennants would have been needed and most landlords I know start to advertise as soon as possible. The landlord has received two weeks worth of rent for one week of exclusive possesion and has thus been unjustly enriched.

 

I agree on the point of having his cake and eating it.

 

Since he says "if you decline I will pay the week's rent and take further action to recover the fees from you jointly." it is tempting to call his bluff as you would have the money and he might have a difficult time proving his claim - it seems like a strange offer to make.

I concur.

 

I really do not think the unlawful eviction thing is a goer if you weren't living there, and it might irritate him. His position does not seem at the moment to be unreasonable.

He seems to have denied the OP's requst to leave early yet gone ahead and moved new tenants in one week early. As he didn't get the OP's permission after refusing said request, the Landlord has breached the OP's rights as a tennant to exclusive possesion and thus the agremeent.

 

H

 

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We shouldn't get hung up on the word "breach"

 

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.

 

This to me describes a discussion about how the landlord will mitigate his losses given that the tenant wishes to end the contract early. If the tenant had said "We said we weren't happy with this and agreed we would continue to pay rent and look after the property till the end of the 6 months" then the LL would have no right to relet early.

 

With regard to the unlawful eviction, the agreement seems to have been that the LL would attempt to relet the property which is what the LL has done. The Act also says:

 

If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.

 

This, and the fact that under the circumstance noone is going to take interest in prosecuting this landlord (it is a criminal, not a civil offence) suggests to me that it is not worth bothering with this, particularly while negotiations are ongoing.

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Let me quickly take this opportunity to say a massive thank you to all of you who have given of your time so freely and generously to help me out with this. It really means a lot!

 

We shouldn't get hung up on the word "breach"

 

This to me describes a discussion about how the landlord will mitigate his losses given that the tenant wishes to end the contract early. If the tenant had said "We said we weren't happy with this and agreed we would continue to pay rent and look after the property till the end of the 6 months" then the LL would have no right to relet early.

 

But the LL moved people in secretly, with no apparent plans to tell us he had done this, thus intending to pocket the overlapping rent. Reletting costs would have been the same whatever.

 

With regard to the unlawful eviction, the agreement seems to have been that the LL would attempt to relet the property which is what the LL has done. The Act also says:

 

This, and the fact that under the circumstance noone is going to take interest in prosecuting this landlord (it is a criminal, not a civil offence) suggests to me that it is not worth bothering with this, particularly while negotiations are ongoing.

 

We definitely need to do something though, as he has threatened to pursue us for his reletting costs if we ask him to repay the overlapping week's rent.

 

----

 

Here's an anonymised copy of the tenancy agreement, as heliosfa was asking for it. Apologies for weird formatting - it's an OCR scan:

 

AGREEMENT

Assured Shorthold Tenancy - Under Part I of the Housing Act 1988 as amended under Part III of the Housing Act 1996.

Landlord: [-------]

 

Tenant: [-------]

Premises: The dwelling-house described as : 2 Bed Flat situated at and being:

[-------]

Together with its fixtures and fittings and also the items in the inventory (if any)

Term: For a fixed period of Six Months, subject to the provisions described within clause 39 below.

Commencing on [-------]

Rent: £ [-------] per calendar month (by standing order into Landlord's bank

account). -" -

Payable every calendar month by equal payments in advance. First payment due on [--------] and

every calendar month thereafter on the same day in each calendar month.

Deposit: £ [-------]

 

 

AGREEMENT

Assured Shorthold Tenancy - Under Part I of the Housing Act 1988 as amended under Part III of the Housing Act 1996.

Generallv

1. This agreement is for the letting of a dwelling which is either unfurnished or has been furnished in accordance with the inventory signed between the parties.

2. This agreement is intended to create an Assured Shorthold Tenancy in accordance with Section 19A of the Housing Act 1988,as inserted by Section 96 of the Housing Act 1996.

3. The provisions for recovery of possession of the premises, by the Landlord, contained in Section 21 of the Housing Act 1988 as amended by Sections 98 and 99, of the 1996 Housing Act apply.

4.This agreement shall take effect subject to the provisions of Section 11 ofthe Landlord and Tenant Act 1985, where applicable to this tenancy. This makes provision for the landlord to repair the structure and exterior of the premises and certain installations in the premises.

5. The landlord is the person or persons stated, or any person entitled to possession if the tenancy were to end.

6. The tenant is the person or persons stated, or any person deriving title under the tenant.

7. Where either party is two or more people, their obligations and liabilities, under this agreement are joint and individual. Where his or he appears read his/her or he/she.

8. The premises are the dwelling stated, together with any outside space or garden and, where applicable, the landlords fixtures and fittings in the premises or as stated in the inventory (if any).

Head lease

9. Where the landlord's interest is derived from another lease, the head lease, the tenant will observe the restrictions in the head lease applicable to the premises. In this case the premises will be subject to the reservations and rights of entry stated in that head lease.

Communal areas

10. Where the premises are only part of a building, the tenant will have access(in common with others) to appropriate access ways and hallways or other shared facilities, but only to the extent that the landlord can lawfully grant the same.

Deposit

11. The deposit as specified shall be paid by the tenant on the signing of this agreement and is to be held by the landlord for the duration of the tenancy as security against the tenant's failure to pay the rent or non performance of hisobligations laid down within this agreement. This includes any breach by the tenant of his obligations as to the cleaning of the premises, the cleaning of any fixtures and fittings therein and the return of all keys.

12. The deposit is not to be used by the tenant towards the final rent payment. The deposit will be returned to the tenant (without interest and less any relevant deductions) within 28 days of the termination of the tenancy and the vacation of the premises. Where there is more than one right to make a deduction, the landlord has the right to appropriate the deposit as he sees fit.

Forfeiture

13. Where the rent, any part of it, or any other sum due from the tenant under this agreement, is in arrears of fourteen days or more after it has become due (whether legally demanded or not), or where there is a breach of any of the obligations on the part of the tenant, the landlord may re-enter the premises (or any part thereof) and the tenancy will immediately be determined without prejudice to any other rights and remedies of the landlord. This is subject to any statutory restrictions on the landlords power to do so. A court order will be required if anyone is residing at the premises.

Interest on payments in arrears

14. Where the rent or any other sum due from the tenant, under this agreement, is in arrears (whether legally demanded or not), the outstanding sum shall be subject to interest from the date when the same became due until the date of payment,

at 4% above the prevailing base rate of Bar clays Bank PIc.

Rent

15. The tenant will pay the rent in the manner and at the times specified within this agreement.

Misuse

16. The tenant will use the premises in a tenant like manner only as a private dwelling house and will not (nor allow others to) use it for any improper, immoral or illegal purposes.

Damages

17. The tenant will not(nor allow others to) cause any damage or injury to the

. premises, but will preserve the premises in the same condition that they were given over to the tenant, reasonable wear and tear and accidental damage by fire or any other risk against which the landlord has effected insurance excepted.

Noise and nuisance

18. The tenant will not(nor allow others to) cause annoyance or disturbance to the landlord, other tenants or any neighbours.

 

Trades

19. The tenant will not (nor allow others to) carry out any profession, trade or other business on the premises.

Insurance

20. The tenant will not(nor allow others to) do anything which may make void (or increase the premium of) any relevant insurance policy.

Assignment. subletting and sharing

21. The tenant will not (nor allow others to) assign, sublet, part with possession of the premises in any way or receive paying guests on the premises.

Alteration of the premises

22. [omitted]

 

23. Without the express written permission of the landlord,the tenant will not (nor allow others to ),place any signs,noticeboard or other advertisements or the like on the exterior of the premises.

24. Without the express written permission of the landlord, the tenant will not (nor allow others to), remove any of the items specified in the inventory (if any) or any of the landlords possessions, from the premises.

25. Without the express written permission of the landlord, the tenant will not (nor allow others to) change any of the decorations, furnishings or any of the fixtures or fittings, (where applicable).

26. The tenant will not (nor allow others to) make any alterations to the premises.

 

 

Pets 27.

Without the express written permission of the landlord, the tenant will

note nor allow others to keep or allow pets of any kind on the premises. Any permission which is given, may be cancelled by the landlord.

 

Cleaning and maintenance

28. The tenant is responsible for cleaning, maintaining and keeping free from all blockages and obstructions all baths, sinks, lavatory cisterns, drains, gutters, pipes, chimneys, and the like(where applicable).

29. The tenant is responsible for the maintenance of any garden areas and for keeping such areas neat and tidy and free from weeds, with any grass kept cut.

 

30. The tenant is responsible for maintaining and regularly testing any smoke detectors listed in the inventory.

31. The tenant shall keep the interior of the premises in good repair and condition and in good decorative order.

32. The tenant is responsible for the cleaning of any carpets, curtains, furnishings or other items listed in the inventory.

33. The tenant is responsible for the cleaning of the windows and for immediately replacing any broken glass, howsoever caused.

Supplies

34. The landlord [sic] is responsible for informing the relevant Authorities and for the payment of bills generated for the supply and consumption of any services such as Gas, Electricity, Telephone, Water etc. The tenant will not do anything that may cause the disconnection of any of these supplies.

Council tax

35. The tenant is responsible for performing his obligation (under the Local Government Finance Act 1992 or regulations made thereunder) to pay Council Tax (or any similar tax or levy).

Ri2hts of access

36. The tenant will allow the landlord~( or his agent) access to the premises at reasonable hours during the day, to inspect the premises and effects therein and to carry out any works the landlord deems necessary.

37. The tenant will allow the landlord (or his agent) access to the premises at reasonable hours during the final 28 days of the tenancy, to show the premises

to prospective tenants or at any time to show the premises to a prospective

purchaser or anyone acting on his behalf.

Unattended property

38. Whenever the premises are left unattended the tenant must fasten all locks to all doors and windows and activate any burglar alarm, to avoid unauthorised access to the premises. The tenant should notify the landlord if he intends to leave the premises vacant for a period in excess of 28 consecutive days.

Vacation of premises

39. The tenant will return the premises to the landlord at the end of the tenancy in the same condition and state of repair as at the commencement of the tenancy, reasonable wear and tear and accidental damage by fire or any other risk against which the landlord has effected insurance excepted.

The tenancy is for a fixed period of six months.

40. The tenant will clear all his own personal effects and any rubbish from the premises on or before the end of the tenancy.

41. The tenant will return all the keys for the premises, to the landlord, at the end of the tenancy.

Quiet possession

42. The landlord agrees with the tenant that subject to the tenant paying the rent and observing and performing the obligations on the part of the tenant may quietly possess and enjoy the premises during the tenancy without any interruption from the landlord or any person claiming under or in trust for the landlord.

Gas safety regulations

43. The landlord is responsible for the service and maintenance of any gas heating system and for ensuring that all gas appliances within the premises are annually certified by a British Gas or Gas Safe registered technician, in accordance with The Gas Safety (Installation and Use) Regulations 1994.

Furniture safety regulations

44. The landlord is responsible for ensuring that any furniture supplied by the landlord complies with The Furniture and Furnishings (Fire)(Safety) Regulations 1988 as amended (but subject to the transitional provisions ofthose regulations).

Outgoings

45. The landlord is responsible for indemnifying the tenant against all outgoings and assessments in respect of the premises, except those stated as being the tenant's

responsibility.

Damage bv fire

46. The landlord is responsible for returning to the tenant any portion of rent paid for any period that the premises is rendered uninhabitable by fire or other risk against which the landlord has effected insurance.

Necessarv consents

47. The landlord warrants that any consents necessary to enable him to enter into this agreement, (whether from superior lessors, mortgagees or others), have been obtained.

Definitions

48. Any reference to the premises includes a reference to any part of the premises.Any reference to the tenancy or the term includes any extension or continuation of the term and any statutory periodic tenancy. Any reference to any items specified in the inventory (if any) or the fixtures and fittings is a reference to any of them. Any reference to any statutory enactment or regulations includes a reference to any amendments or modifications to the same.

 

Notices

49. The provisions of Section 196 of the Law of Property Act 1925 as amended by the Recorded Delivery Service Act 1962 relating to the service of notices, apply to any notice authorised or required to be served under this Agreement or any Statutory Provision relating to the tenancy.

Section 48 of the Landlord and Tenant Act 1987

50. The tenant is hereby notified that in accordance with section 48 of the Landlord and Tenant Act 1987, the address for the tenant to serve Notices on the landlord (induding Notices in proceedings), is given here:

[-------]

The landlord hereby agrees to let the premises and the tenant hereby agrees to take the premises for the rent, period and in accordance with the conditions stated within this agreement.

 

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IMO he would only be able to charge you a portion of the re-letting costs as he only re-let a week early. So 26 weeks in 6 months, he could reasonably hold you to 1/26th of the cost, which I'm sure doesn't amount to very much!

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IMO he would only be able to charge you a portion of the re-letting costs as he only re-let a week early. So 26 weeks in 6 months, he could reasonably hold you to 1/26th of the cost, which I'm sure doesn't amount to very much!

 

But because of the time of year, he'd need to have advertised a little bit early anyway (our AST expired on xmas day).

 

Have you asked him what his reletting costs are?

 

They are twice the amount of the overlapping week's rent, i.e. around £500.

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In post #29 Steve_M offered reasonable advice, yet others inc the OP don't appear to want to negotiate.

 

xxAmyox sems to suggest a LL is inly entitled to full re-adv costs if tenant has not paid rent (not occupied the tenancy) during all the 6 month fixed term.

 

The only way for a tenant wishing to vacate early,without undue penalty, is for T to find an acceptable replacement, at own expense, to move in before the end of the fixed/notice period. If T delegates this duty successfully to LL, verbally or in wtiting, they should expect to pay the LLs full costs for re-adv.

 

IMO it is immaterial that the LL would have to bear the full costs to find a new tenant. If that new tenant moved in after the end of the end of the OPs TA the OP may have a case.

The TA as presented, leaves both sides vulnerable IMO

It does not appear to offer either side an early release clause (unless embedded in stated Statutes)

The fixed term is for 6 months (the correct phrase is '6 months certain')

The OP has not provided any detailed dated timescales, other than to suggest his verbal Notice was 'late', suggesting s/he knew of some deadline. Interpretaion of this verbal Notice could have been 'misconstrued' by the LL, esp if he knew the T had removed his/her personal contents.

The T app made no attempt to hand keys back (by proxy) on last day of Tenancy (as reqd) I admit fixed-term Tenacy was paid for by OP

 

It could be argued that by not surrendering keys on the due date, the OP forced a periodic tenancy, requiring due Notice according to prevailing rent period.

The LL has agreed to refund OP overlapping rent of 1 week ( to avoid charge of illegal eviction?) in exchange for re-adv cost.

 

The art of any good negotiator is to achieve the best terms possible, whilst leaving the other side with the same opinion

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In post #29 Steve_M offered reasonable advice, yet others inc the OP don't appear to want to negotiate.

 

xxAmyox sems to suggest a LL is inly entitled to full re-adv costs if tenant has not paid rent (not occupied the tenancy) during all the 6 month fixed term.

 

We didn't break our tenancy, and there is nothing in our AST agreement to suggest we are in any way liable for the reletting expenses. Significantly, we continued to pay rent and council tax and other bills during the first week of the new tenants' AST, without having been offered an option to do otherwise.

 

The only way for a tenant wishing to vacate early,without undue penalty, is for T to find an acceptable replacement, at own expense, to move in before the end of the fixed/notice period. If T delegates this duty successfully to LL, verbally or in wtiting, they should expect to pay the LLs full costs for re-adv.

 

We merely suggested that he look for new tenants early, in order that we could possibly come to some agreement about ending our AST early. However he made out that he had not found any new tenants, and simply pocketed the overlapping week's rent without discussing anything with us. Our AST came to an end on Christmas day. The LL would have to have advertised for new tenants at more or less the same time as he did, in order to ensure the place was occupied after our AST elapsed, whether or not this was as a result of discussions with us. Nobody moves house on xmas day, so the LL had a choice of whether to wait until after the holiday period to move people in, or to let us know that they had found someone early, so that we could negotiate and discuss any possible surrender of the tenancy and/or share of his expenses. As he moved the new tenants in secretly, a week before the end of our AST, with no discussion with us that this was happening, I don't see why we are liable for his reletting costs, nor why it's unclear that the LL (and not us) broke the AST.

 

IMO it is immaterial that the LL would have to bear the full costs to find a new tenant. If that new tenant moved in after the end of the end of the OPs TA the OP may have a case.

 

But the amount spent is the same, and the LL is not out of pocket because if he returns our overpaid week of rent, he will still have received the correct amount of rent for a single tenancy at this address. The LL's suggestion of a friendly compromise is in fact skewed in his favour. As Steve__M & heliosfa suggest above, the LL wants his cake and eat it.

 

The TA as presented, leaves both sides vulnerable IMO

It does not appear to offer either side an early release clause (unless embedded in stated Statutes)

The fixed term is for 6 months (the correct phrase is '6 months certain')

 

So why, when it is him not us who have brought the agreement to an end early and in secret, are we liable for his expenses?

 

The OP has not provided any detailed dated timescales, other than to suggest his verbal Notice was 'late', suggesting s/he knew of some deadline.

 

Notice not required to depart at the end of an AST.

 

Interpretaion of this verbal Notice could have been 'misconstrued' by the LL, esp if he knew the T had removed his/her personal contents.

 

We wanted to make it as easy as possible for him, should he decide to move someone in early, in the hope that he would then let us know that he had found someone, so that we could discuss the financial logistics. Note the liability for his reletting costs only reared its head three weeks after we sent him a letter asking us for the overlapping weeks' rent, and only because he had never mentioned these new tenants he had brought in during our active AST.

 

The T app made no attempt to hand keys back (by proxy) on last day of Tenancy (as reqd) I admit fixed-term Tenacy was paid for by OP

 

We made repeated attempts to contact the LL, in order to arrange a time for a walk-through and a hand-back of the keys. It was at the LL's insistence that we hang onto them until the expiry of our AST as, in his words we were "still the legal occupants". Hence our umbrage.

 

It could be argued that by not surrendering keys on the due date, the OP forced a periodic tenancy, requiring due Notice according to prevailing rent period.

 

We oversaw numerous letting agents showing round prospective new tenants, during several evenings in the two months before the expiry of our tenancy. This is all documented. Surely if we hadn't warned the LL that we were moving out by the end of the AST (i.e. given some form of verbal notice before the end of the AST, which is not even a legal requirement), we wouldn't have sanctioned these viewings? The LL was well aware that we were not staying on longer than our AST, and he pretty much forced us to hang onto the keys. Which, it turns out, is a good thing, as it adds to the meat of the fact that we didn't break our AST.

 

The LL has agreed to refund OP overlapping rent of 1 week ( to avoid charge of illegal eviction?) in exchange for re-adv cost.

 

Why on earth should we be eligible for 100% of his £500 reletting costs?

Edited by fujifilm
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We merely suggested that he look for new tenants early, in order that we could possibly come to some agreement about ending our AST early.

Now this sounds like *you* wanting to have your cake and eat it: "Dear landlord, you *might* want to find new tenants because we *might* leave early. However we *might* not, and therefore unless we do we don't believe we have broken the tenancy."

 

Obviously that is a coloured version of what *might* have happened, but it seems that you and the landlord are seeing things differently.

 

The difference between your positions is £250 which is unlikely to be worth the hassle and risk of court for either of you. I suggest you either:

 

  1. take his offer of the money + threat of him suing you, or
  2. Suggest you split the £250 between you somewhere.

I think though if you suggest number one, he'll change his mind about giving you the money because he'll realise the difficulty of suing you, and you might end up with nothing. Number 2 might get you something if he is feeling at all guilty.

Edited by Steve__M
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Now this sounds like *you* wanting to have your cake and eat it: "Dear landlord, you *might* want to find new tenants because we *might* leave early. However we *might* not, and therefore unless we do we don't believe we have broken the tenancy."

 

It was more like "Dear Landlord. Are we allowed to have a partial refund of our rent if you find new tenants before our AST expires?" "Yes." (...two months later...) "Dear Landlord. You appear to have moved new tenants in during our AST, without letting us know. Please give us a refund of the overlapping rent." "No."

 

Obviously that is a coloured version of what *might* have happened, but it seems that you and the landlord are seeing things differently.

 

The difference between your positions is £250 which is unlikely to be worth the hassle and risk of court for either of you.

 

You're right.

 

I suggest you either:

 

  1. take his offer of the money + threat of him suing you, or
  2. Suggest you split the £250 between you somewhere.

I think though if you suggest number one, he'll change his mind about giving you the money because he'll realise the difficulty of suing you, and you might end up with nothing. Number 2 might get you something if he is feeling at all guilty.

 

Thanks again, Steve__M. Myself and my partner have already spent so much time on this, that it's looking most likely that we'll take option 2 above.

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