Student Let Saga - advice please

[T4NKG1RL]

Brief background:

My son signed an AST tenancy for a 10 month term to share with 4 fellow students commencing Sept 10. Son knew landlords having rented off them last year and moved into another of their houses for this year. Major problems with 3 of the 4 other students has resulted in multiple complaints & requests for landlords to visit and sort out breaches of contract (e.g. these 3 students damaging internal fixtures & fittings firing BB guns inside house, trashing communal rooms etc). Things came to a head last week when the 3 of them got personal with my son which has now resulted in the University instigating internal disciplinary investigation and moving my son into emergency student accommodation on campus because he no longer feels safe in his own home.

Landlords coincidentally turned up the day after the incident whilst I was at the house discussing options with my son and the other affected tenant, we told landlords the problems, advised them that at this point there was little or no chance of the tenancy continuing with all 5 tenants and asked them to consider evicting the 3 guys who had all clearly been regularly breaching tenancy agreement otherwise my son and the other tenant would have to find alternative accommodation and quit the property as a result. Landlords initial response was but what about our investment? Explained that their investment was not my concern, my son's safety was and since despite repeated requests to sort these other students out had resulted in no action, clearly we would have to consider all options. Landlords were made aware that Uni had been involved, as have police and that we would update them with any further developments. Their next advice was can't you guys just try to get along? They were advised that the nature of the attack resulting in Uni disciplinary & police involvement meant 'getting along' was extremely unlikely. Now the problem we have is that son cannot continue in rented house and Uni have provided accommodation, aware of safety issue for son. Rent for house for this term is paid up till end of April. We moved all son’s possessions in property out yesterday and have returned his room within house to pristine order (photographed as well, as proof). I am about to contact landlord to return keys and advise him my son has officially moved out and will not be returning.

 

So my question falls into 3 parts:

 

1. Is it reasonable to advise landlords that since tenancy agreement has been breached by other parties (which they (the landlords) have done nothing to remedy) and the other tenants antisocial behaviour and actions have now made it impossible for son to live there and enjoy his tenancy with 'quiet enjoyment' (nevermind safely), my son is now ending this tenancy agreement due to breach of contract and has decided to forego return of rent paid till end of April as full & final settlement of all outstanding monies for term of contract.

He does want the security deposit back and so will ask for that as a matter of principle. The contract has no break clause and I did sign a guarantor's agreement which stipulates:

GUARANTEE FOR A FIXED TERM

Details of the Tenancy Agreement

Name of Landlord:

Name(s) of Tenant(s):

Property let:

Date of Tenancy: 01 September 2010

Term of 10months

Rent: £195.00 per tenant per month

Share of Rent: the proportion of the Rent due from any one tenant given that the Rent for the whole Property is divided by the number of tenants and each tenant is only liable to pay his or her equal share of the Rent, and not the whole.

Guarantee

In return for your granting the above Tenancy I now give you this guarantee as to the payment by ******* (“the Individual Tenant”) to you of his Share of Rent and the performance and observance by him of the terms of the Tenancy Agreement upon the following conditions:

1. If ********fails to pay his Share of Rent for the period of one month, I will, upon receiving a written request from you, pay you the Share of Rent that is in arrear;

2. I shall not be liable to make good any arrears of rent caused by the default of any of other Tenant who has not paid his Share of Rent;

3. My liability for Rent under this Guarantee shall not exceed ******Share of Rent.

4. If *******defaults in the performance or observance of any of the provisions on his part contained in the Tenancy Agreement, I will pay to you all losses, damages, expenses and costs that you shall be entitled to recover by reason of his default, to the extent to which you are unable to recover them from the Tenant, upon the following conditions:

(a) If *******can prove that the default was not caused by him but by one of the other tenants, I shall have no liability under this Guarantee; and

(b) In any event, my liability shall be limited to a proportionate share of the losses, damages, expenses and costs that you shall be entitled to recover from*******, such proportion to be calculated in the same manner as the Share of Rent above.

6. This Guarantee shall continue for 10 months and shall extend to the acts and defaults of *******during that period. During that period I cannot revoke this Guarantee and it shall not be discharged by my death or by the death or bankruptcy of *******

7. Without prejudice to the above clause, this Guarantee shall not be discharged by your giving *******time in which to meet his rent or other indulgence in respect of his obligations under the Tenancy Agreement.

8. If the Tenancy Agreement is assigned with your consent or terminated by agreement or by re-entry or otherwise, all future liability on my part shall cease.

Which leads nicely to my second question:

2. Am I still liable as guarantor then or is this breach as outlined above sufficient to discharge my liability?

 

Also, the tenancy agreement is a bit grey about whether this is an Individual tenancy agreement or whether it is Joint & Several responsibility – so my final question :-

3. Anyone care to cast an eye over this little lot and let me know if this is Individual or Joint & Several?

The guarantor’s agreement, which was subsequent to the tenancy agreement, makes it look like its individual and the only reference to Joint & Several obligation in the tenancy agreement is a footnote when even the calculation for rent payable is written down as an individual tenant calculation. (see below)

The Landlord agrees to let and the Tenant agrees to take a tenancy of the Premises described below ("the Premises" )

The Premises are a room and shared facilities at ********but not so as to give the tenant exclusive use or occupation of any other rooms orenable him\her to use any particular bedroom in the Premises.

The following rights are excluded:

The free passage and running of water soil and gas and electricity through all pipes cables wires drains sewers passing in or under the Premise

Commencement and termination

rent per tenant (total 4)

(2) The tenancy shall be

For a term of Ten months from 1 September 2010 to 30 June 2011

Rent

(3) Weekly periodic rent payable in advance by Ten instalments by bankers order/transfer or (this may be paid termly in advance) pre-dated cheques by the first day of each month (September 2010, to June 2011) Please see note 2 & 4below

 

First payment to be made on the first day of September 2010 shall include an additional surety of

£ 200.00 + £50 holding deposit (please see note 3 and clause 3(3) below)

The monthly payments for the premises at the date of this agreement for each tenant shall be:

£ 195.00(£46.00 per week)

This includes the water charge Please see note 1 below Please see note 2 below

Note 1: Should the water charge on the Premises be increased the amount of such increase may be added to the monthly rent

 

Note 2: July and August

If the premise is vacated during July and August, it is agreed to vary the above charge during these months. Under these circumstances, the rate for July and August together, will be equal to one month’s payment at the normal rate above. This reduced rent will reserve the property over these months. This summer rent may be waived at the landlord’s discretion.

Please note contract to commence Sept 2010 due to renovations

The landlord(s) reserve the right to carry out improvements and maintenance over July and August,

in which circumstance, it may not be possible to reside in the property for some or all of this period.

Under these circumstances, the non-residence rent clause is still applicable.

Note 3: If the surety is paid immediately, the £50 holding deposit may be waived at the landlord’s discretion. Please see Para 3 (3) for full surety conditions.

The Landlords will be using a Government authorised custodial deposit protection scheme managed by the Deposit Protection Service for the surety.

Note 4: The last rent is due on 1 June 2011 (the deposit or surety may not be used by the tenant for this rent)

Letting Provisions

(4) This Tenancy Agreement incorporates the Letting Provisions set out below

Contents

(5) The furnishing and effects ("the Contents") are included in the tenancy and their existing condition shall be deemed to be good unless a defect is noted at the start of the tenancy

Interpretation

(6) The paragraph headings do not affect the construction of this Agreement

Parties

(7) Where more than one person is named as Tenant their obligations are Joint and Several

(8)References to "the Landlord" include those entitled to the reversion of this tenancy

(9) Acknowledgement:

The parties hereto acknowledge that each of the terms contained in this agreement has been individually negotiated

LETTING PROVISIONS

1. THE TENANT AGREES WITH THE LANDLORD as follows:-

Rent

(1) To pay weekly periodic rent at calendar monthly intervals in advance by bankers’ standing order or post dated cheque to cover the term of the agreement, free from deductions or set off both legal and equitable

Deposit

(2) To pay the surety and deposit to the Landlord upon the date of this Agreement in accordance with the terms set out in Clause 3 (3) of the Letting Provisions. In addition the deposit may not be used by the tenant in lieu of rent.

Outgoings

(3) (a) To perform and observe any obligation on the part of the tenant arising under the Local

Government Finance Act 1992 or regulations made thereunder to pay council tax and indemnify the Landlord against any such obligation which the Landlord may incur during the tenancy by reason of the Tenant's ceasing to be resident in the Property

(b) To pay all other services charges and rates taxes duties assessments and outgoings which are now or which may at any time hereafter be assessed charged or imposed upon the owner or occupier in respect thereof

© To pay the cost of all oil electricity and gas consumed and the cost of all telephone calls made at the Premises during the tenancy (together with any standing charges levied by the appropriate authorities) and not to do anything to cause disconnection of the electricity or gas supply or the telephone

(d) Not to change the company supplying gas or electricity without the landlord’s written permission

Repair and Decoration

(4) To keep the interior of the Premises and the fixtures and fittings and the Landlord's installations and the doors and the glass in the windows in good tenantable repair decoration and condition and condition and in working order (damage by accidental fire excepted)

Consent for alterations and decorations

(5) Not to cut damage injure alter rearrange or interfere with any part of Premises or the decorations or the contents or make any additions or alterations and not to paint or decorate any part of the

Premises without obtaining the Landlord's approval to the colours and materials before the work is started

Misuse

(6) Not to use or permit the Premises to be used for any improper immoral or illegal purpose

(7) Not to carry on upon the Premises any profession trade or business or let apartments or rooms or service to paying guests or lodgers or place or exhibit any notice board or notice on the premises

Animals

(8 Not to keep any pet or animal of any kind in the Premises without first obtaining the Landlord's written consent and such consent whether given or waived may be withdrawn at any time.

Noise, nuisance, etc

(9) To ensure that nothing shall at any time be done in the Premises (or any buildings of which the

Premises form part) that shall be a nuisance damage disturbance annoyance injury or inconvenience to any adjoining or neighbouring property or its occupiers (This refers to Anti-Social Behaviour (based upon The Housing Act 1996)

(a) Part 5 of the above Act gives private landlords “stronger powers to deal with anti-social behaviour by their tenants”.

(b) Anti-Social Behaviour includes that which is “very serious and of a criminal nature” e.g. drug dealing, racial harassment, physical violence and that defined as “sometimes less serious but equally detrimental to the quality of life of the community” and includes loud music, barking dogs and verbal abuse.

© The above Act now:-

“strengthens the existing grounds for possession based on nuisance and annoyance to neighbours in two ways; so that it applies to behaviour within the locality of the tenant’s property, and covers behaviour by visitors to the property”. “makes it possible for a landlord to evict a nuisance tenant for behaviour likely to cause a nuisance and annoyance, so that the landlord would not have to call the victim of the behaviour to give evidence”. “makes it possible for a landlord to evict where a tenant, lodger or visitor has been convicted of an arrestible offence in the locality of the dwelling”.

Use

(10) To use the Premises only as a private residence for occupation by the Tenant(s).

No disposals subletting or sharing

(11) Not to assign underlet or part with or share possession or occupation of the whole or any part of the Premises

Insurance

(12) To ensure that nothing is done in the Premises which may cause an increased premium to be payable and to make good to the Landlord any loss or extra expense arising from a breach of this Clause

(13) To notify the Landlord promptly after any event which causes damage to the Premises or which may give rise to claim under the insurance of the Premises

Entry by Landlord

(14) To allow the Landlord or the Landlord's agents upon giving 24 hours' prior notice (except in the case of emergency when no notice shall be required) to enter the Premises:-

(a) To inspect their condition

(b) To carry out any repairs alterations or other works to the Premises or any adjoining property

(15) To permit the Landlord or the Landlord's agent at reasonable hours in the daytime, upon giving

24 hours' prior notice, to enter and view the Premises with prospective tenants or purchasers

Thereof

Drains, Gutters, Chimneys and Access

(16) Not to obstruct the drains or any jointly used access and to keep the drains and gutters clean the chimneys swept when necessary and jointly used access clear and tidy

Costs

(17) To pay all legal or surveyors' or other costs fees and expenses incurred by the Landlord:-

(a) As a result of breach by the tenancy is avoided by relief granted by the Court or in any other way;

(b) In the preparation and service of a Schedule of a Dilapidations during or after the tenancy;

© In the connection with the recovery of arrears of rent due under this Agreement;

(d) Relating to any request for consent required under this agreement whether or not such consent is given

Interest on payments in arrears

(18 If any rent or other sum due from the tenant under this Agreement remains unpaid for more than seven days after the due date ( whether formally demanded or not) to pay interest thereon at 3% above the base rate for the time being of National Westminster Bank Plc until the date of payment

Frost

(19) To take all reasonable precautions to prevent damage by frost

Cleaning

(20) To clean or where appropriate wash the Premises and the contents as often as may be necessary or appropriate and if reasonably required by the Landlord to pay for the professional cleaning of the Premises during or at the end of the term

Garden

(21) Where any garden is included in the tenancy to use it as a private garden only and to keep it clean and tidy properly cultivated and free from weeds and grass regularly mown

Refuse

(22) Not to leave any refuse outdoors except in a properly closed receptacle. To put out rubbish in a properly closed receptacle on the day of collection, as required by the Refuse Department

Vacation of Premises

(23) Not to vacate the Premises or leave them unoccupied for more than 30 consecutive days except on the expiration of the term of the tenancy and in any event on vacation at the end of the term to deliver keys to the Landlord and to pay rent up to the date of such delivery

(24) To keep the Premises locked and secure when they are vacant

At the end of the Tenancy

(25) At the determination of the Tenancy to deliver up to the Landlord the Premises and the

Contents, including all keys, in accordance with the Tenant's agreements and clear of the

Tenant's own effects

Condition of contents

(26) To keep the contents in at least as good repair and condition as they are now and to keep mechanical and electrical equipment properly serviced and to make all damage and undue wear (except damage caused by accidental fire) and to replace with similar articles of equal value all contents which are destroyed or lost or damaged (except by accidental fire) or unduly worn and incapable of reinstatement and not without the Landlord's written consent to remove any of the contents from the Premises nor to move any of the Landlord's furniture or furnishings from the room in which it is placed

Correspondence and notices

(27) Within seven days of receipt thereof to send the Landlord all correspondence addressed to the

Landlord or the owner of the Premises (or any building of which the Premises form part) given made or issued under or by virtue of any statute, regulation, order, direction or bye-law by any competent authority

Locks

(28 Not to change the locks to the outer doors of the Premises nor to make any duplicate keys thereto but to return all such keys to the Landlord at the end of the tenancy

Telephone

(29) Not to apply to change the telephone number of the Premises without the Landlord's written consent

Combustible and other dangerous substances

(30) Not to store or bring up or use on the premises any articles of a specially combustible inflammable or dangerous or illegal nature (including oil or gas heaters and candles)

Heating appliances

(31) Not to store or bring up or use on the premises any heater or cooking appliance other than those provided by the landlord(s)

Safety equipment and procedures

(32) Not to misuse or disable any safety equipment. This applies in particular to any smoke or carbon-monoxide alarm and fire blanket. Self-closing ‘fire’ doors must not be wedged open and must be kept closed at all times when not in use. Interference with such equipment may constitute a criminal offence. To inform the Landlord immediately if any safety equipment is faulty.

(33) Tenants are required to familiarise themselves and their guests with main and alternative emergency escape routes.

Others

(34) Shall have sole responsibility for the replacement of light bulbs

(35) Not to store any bicycle inside any part of the Premises without written permission of the landlord(s)

2. THE LANDLORD AGREES WITH THE TENANT as follows:-

Quiet enjoyment

(1) That the Tenant paying the rent hereby reserved and performing and observing the various agreements on his part contained herein the Tenant shall have quiet enjoyment of the premises against the Landlord and all persons claiming title through the Landlord

3. IT IS AGREED BY BOTH PARTIES as follows:-

Forfeiture

(1) If at any time the whole or part of the rent shall be unpaid for fourteen days after it becomes due (whether legally demanded or not) or if there shall be any breach of any of the Tenant's agreements the landlord shall be entitled (in addition to any other right) to repossess the whole or any part of the Premises and this Tenancy shall immediately then terminate but without affecting the Landlord's right to sue the Tenant for any breach of covenant

Fire

(2) If the whole or any part of the Premises shall be destroyed or made uninhabitable by fire then unless the Tenant has broken the letting Provisions the payment of the rent or the appropriate part of it shall according to the extent of the damage be suspended until the Premises have been reinstated and made fit for habitation

Deposit

(3) The surety and deposit is payable to the Landlord as security for the performance of the Tenant's obligation.

The deposit will be protected by The Deposit Protection Service (The DPS) in accordance with its terms and conditions. The terms and conditions and ADR Rules governing the protection of the deposit including the repayment process can be found at www.depositprotection.com

The surety or deposit may not be used by the tenant in lieu of rent.

The surety and deposit may be expended by the Landlord in paying arrears of rent or the cost of making good any failure by the Tenant to perform any of the Tenant’s other obligations in this Agreement (including outstanding bills). The landlord shall authorise the balance of the deposit and surety to be paid by the DPS to the tenant, after appropriating any part expended or expendable by the landlord as aforesaid, within one month of the termination of the Tenancy and vacation of the Premises by the Tenant, with proof of payment of all outstanding bills.

(4) Ownership of all property left the Premises at the end of the Tenancy and not claimed within two months thereafter shall immediately pass to the Landlord who shall be entitled (though not bound) to sell the same for his own benefit

(5) For the purpose of Section 48 of the Landlord and Tenant Act 1987, the address at which any notices (including notices in any proceedings ) may be served on the Landlord(s) by the Tenant

is, until the Tenant is notified to the contrary: ************

(6) Any notice served by the landlord on the Tenant shall be sufficiently served if sent by first class post to the Tenant at the Premises or the last known address of the Tenant or left addressed to the Tenant at the Premises

(7) It is hereby mutually agreed and declared that this Agreement is an Assured Shorthold Tenancy within the meaning of Section 20 of the Housing Act 1988

Sorry about all the detail but am currently attempting to work this one out and am all over the place!

Thanks for reading.

 

 

 

 

[xoAmyox]

Sorry if I miss any details, as your post is long and I've scanned it.

 

Just a few questions

 

1. Was the guarantor agreement executed as a deed, and was this witnessed? Were you specifically given a copy of the tenancy agreement (not your sons copy) at the same time or before signing the guarantor document?

2. Did all the tenants have an agreement that includes the whole house? Or did each tenant have a room detailed on the agreement? Do the rooms have locks on the doors, and did the landlord have access to the communal areas?

 

In regards to the landlord not doing anything with the other tenants. I presume the incident involved violence as the police were involved and certainly sounds serious.

I would recommend that your son gets some legal advice from Shelter, or alternatively CAB. As the failure to act on the part of the landlord may breach your sons right to 'quiet enjoyment' and therefore amount to harrassment.

 

However, if the landlord did push ahead with action against these tenants, whether the agreements were individual or joint and several plays and important part. If joint, then the landlord is unable to simply 'evict' the troublemakers, he would have to evict everyone.

Also, the process of eviction for anti-social/violent behaviour although faster than other routes, can still take up to a couple of months with hearings, bailiff appointments etc, if they refuse to 'go quietly'.

[T4NKG1RL]

Thanks for taking the trouble xoAmyox, I know how wordy the post is but I needed to make sure that I could see all the relevant stuff!

I signed the Guarantor's agreement and gavie it to the landlords at the house, I don't recall if it was signed by a witness and I did not have my own copy of the tenancy agreement before, during or afterwards. The copy I have pasted from is my son's emailed copy.

"The Premises are a room and shared facilities at ***** but not so as to give the tenant exclusive use or occupation of any other rooms or enable him\her to use any particular bedroom in the Premises." Supposedly no locks on doors but my sons room clearly has a lock (although no key supplied). The landlords have access to all communal areas, bathrooms, living room,kitchen, halls, etc (with appropriate notice to tenants that they were coming). Students Union advised that eviction could be lengthy time-wise and my son and the other tenant both felt too afraid to stay on hence the move to student halls.

Basically is my proposal to let the landlords to let them keep the rent paid to date, return the deposit and not try to chase me for money afterwards reasonable? My son just wants to get on with his course, put this behind him and forget he ever met the other 3 students at all. I want to make sure that we don't incur further financial punishment when he is the wronged party!

[xoAmyox]

The contract says that your son could not have exclusive occupation, but can only use 'a room'. Which says to me they're trying it on as a joint agreement, but it can't be joint if all tenants are not names on one tenancy agreement. Even if they are, can you say which 'number' in the list of names your sons appears?

 

It seems that your guarantor agreement is unenforceable, which means it cannot be relied upon in court. You were not given a copy of the TA which means you had no 'contractual consideration' when signing. I know this may be irrelevant with the rent being paid up, but does prevent the landlord chasing you for any claim for damages.

 

In order to instigate the return of the deposit you need to contact the scheme protecting the deposit, in the agreement it is listed as the DPS. Prescribed information including a protection certificate should have been provided to your son. If you are unable to find the deposit as registered with them, please return and I can inform you of further steps to take. It is best not to inform the landlord if you find this, as non-protection can carry a fine in court.

 

Also, do keep an eye on whether the room is re-let. If this happens then you will be entitled to a pro-rata refund of the rent paid. The landlord cannot let the same premises several times over, and you would be able to claim the refund in court if the landlord is not forthcoming.

Edited February 2, 2011 by xoAmyox
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