My landlord is trying it on

[enquiring.mind]

On Monday, 25th April 2011 I got in touch with a Solicitor online who specializes in U.K. consumer protection and consumer rights. Subsequently, I would like to have a second opinion about the ongoing dispute between me and the landlord. The following is a copy of the correspondence between me and the Solicitor:

 

Monday, April 25, 2011 2:51 PM(GMT/GMT)

 

 

I recently had a dispute with my landlord on Wednesday, 13th April 2011 and I decided that under those circumstances my status as a tenant was no longer tenable. I asked him how much notice I would have to give to vacate the property and to have my initial deposit of £260 refunded; but I did not specifically give notice to terminate my tenancy agreement on any particular date. He said he wanted me “out of the house by Tuesday (19th April 2011)”; which I interpreted as an implied verbal contract between the two of us (which he sent me as a text message to my cellphone). Normally, I am required to give 1 month's notice to terminate the agreement, or else I would lose the initial deposit of £260; but on this occasion, I believe the verbal contract takes precedence over the official tenancy agreement between me and the landlord. The fact he advised me to vacate the property by 19th April 2011 was a de facto proposition on his behalf for us to terminate the contract on the above date. However, I no longer have the original text message containing my landlord's instructions advising me to vacate the property on the above date. It’s inexplicable that somehow the original text containing his instructions is no longer held on my mobile phone, although I have no specific recall about deleting the message.

 

As it happened, I started removing my belongings from the house on Friday, 15th April and I didn’t manage to remove all my stuff until Monday, 18th April.

 

Subsequently, I received another text from my landlord on 24th April 2011 telling me that I owed him £300 rent for the calendar month 18th April to 17th May 2011, which is based on the premise I failed to give him 1 month's notice and the contract is still legally in force.

 

However, I no longer have the original text message on 13th April 2011, whereby, my landlord specifically asked me to vacate the property by Tuesday, 19th April 2011. Consequently, I am concerned about the alleged rent I still owe him; plus the fact, I am concerned about the deposit of £260 which my landlord said he would use to settle a large percentage of this month's rent in the event that I still wanted to give notice to vacate the property; and my landlord said that I still owe him £40 in addition to losing my deposit of £260, which is on account of the rent being £300 a calendar month. I believe the situation is unfair because I am no longer living at this address and my decision to leave was based on the premise of what he'd initially said to me on 13th April 2011; which he sent as a text message to my cellphone.

 

Moreover, I held onto the keys to the house until Wednesday, 20th April 2011 because I had some unfinished business to attend to. I had to go back to the house to give my old room a good hoover and I left the keys inside a small envelope in the kitchen before leaving the property for good. Given that I spent less than an hour inside the property during my last visit on 20th April, I’m not sure whether this is a de facto breach of the verbal contract between me and the landlord; and whether this would make me liable to pay the monies which he suggested I owe him. Consequently, I am now afraid it would be neither easy nor straightforward to bring any successful legal action against my landlord to recover my deposit of £260; and I would still be liable to pay him £40 in light of this month's rent which I am supposed to owe him for the period 18th April to 17th May 2011.

 

Henceforth, I would like to have a professional, definitive answer from a qualified Solicitor who is licensed to practice in England & Wales as to whether there might be any chance at all I could still bring a successful legal action against the defendant, my landlord, in view of the fact I no longer have the original text from him on 13th April 2011, whereby, he specifically asked me to vacate the property on Tuesday, 19th April 2011. I would like the answer to be based on case law in England & Wales as to whether it might be possible to bring a successful legal action on the basis that there is no existing hardcopy (or text) to show that the contract was terminated on 19th April 2011. Whereas, the original tenancy agreement is a document which still exists, this same cannot be said of the text message which he sent me on 13th April 2011; which was to effectively cancel the tenancy agreement without the usual requirement of 1 month's notice on Tuesday, 19th April 2011. On the basis of case law, I would like to know whether there is any chance whatsoever I could still bring a successful legal action against the defendant, my landlord, to recover the deposit of £260 and to void his claim that I still owe him £300 rent for the period 18th April to 17th May 2011.

 

I would like to have professional advice as to what would be the best course of action for me to take in light of the above circumstances. Please contact me as soon as possible.

 

 

Monday, April 25, 2011 3:00 PM(GMT/GMT)

 

 

 

Hiya

 

 

On the basis that you have a text from him advising you to leave on or by the 19th April and you left on that date then you have a good claim to not owe any money and on the basis that you are returning the property in its original condition to get your deposit back. I would actually threaten to take him to the small claims court if you can not resolve this.

 

Happy to discuss

 

 

Monday, April 25, 2011 3:30 PM(GMT/GMT)

 

 

If I took him to a small claims court do I need to provide evidence of the original text which no longer exists? I suppose the judge or magistrate in a small claims court is more likely to take my word for granted without any evidence of the original text (which no longer exists!) because a private dispute such as this is usually settled according to a lower standard of proof. Private lawsuits are usually settled according to the "balance of probability", which is a lower standard of proof compared with the majority of criminal prosecutions, which require a much higher standard of proof. More often than not, criminal cases are resolved according to a much higher standard of proof, which is "evidence beyond reasonable doubt." In my particular case, this private dispute between us could be settled in a small claims court on the balance of probability, which does not require me to produce evidence of the original text. Is this the underlying principle behind your answer?

 

 

Monday, April 25, 2011 3:35 PM(GMT/GMT)

 

 

 

There is a different burden this is correct. Also the landlord will know that he sent you this text and would not want to be seen to lie in court

Edited April 26, 2011 by enquiring.mind
To improve the general appearance of the thread.

[sir_gilmour]

Hello enquiring.mind, welcome to the CAG.

 

Enjoy your visit, but take some time to look around the forum and understand where everything is.

 

 

It can seem confusing at first but you will start to find your way round and to understand what a helpful community we are.

 

You haven't received any replies to your post yet. Try posting your query again in a relevant sub-foum. You will get the help and support you need there.

[rebel11]

Hi en

 

Welcome to CAG

The guys will advise as soon as they are available.

 

Thread moved.

[xoAmyox]

Your mobile phone provider should be able to send you a printed list of text messages received from particular number, I have seen this form of evidence used in several illegal eviction/ landlord harassment cases.

[The Carpet Cleaners]

As you have been advised, your landlord knows he sent you the message....

 

He does not know that you don't still have it.

 

I would suggest a bit of bluff calling, and follow XoAmyox suggestion.

[Ed999]

My advice is applicable only if the rented premises are entirely within England and Wales, and only if you were granted a shorthold tenancy (under which you [and your spouse/partner/children if any] had exclusive use of a seperate dwelling, which was not shared with another tenant nor with the landlord) and you were over 18 years of age when the tenancy was granted.

 

 

If you leave the premises without first validly ending the tenancy, the rent continues to accrue, and can be deducted from the deposit; and you can be sued if the deposit doesn't cover it.

 

There are two ways for you to end a shorthold tenancy if it is a periodic tenancy in which the rent is payable monthly: you can give not less than one calendar month's notice in writing, expiring on the day before a rent day (but if the tenancy agreement requires a longer period of notice you must give the notice which the agreement specifies); or you and the landlord can agree an immediate surrender, by a deed signed by you both. In this situation, the rent ends when the notice period ends, or on the date the deed of surrender specifies, respectively.

 

If there is a fixed term tenancy (e.g. a 12 month fixed duration, or a 6 month fixed duration) you can't give notice to end the fixed term early, unless a provision in the agreement - called a 'break clause' - allows that, so the rent keeps running until the next tenant moves in (although the rent can't continue after the last day of the fixed term, so that date is the long-stop). But you and the landlord can, ALTERNATIVELY, agree an immediate surrender, by a deed signed by you both; and if so, the rent ends on the date the deed of surrender specifies.

 

A re-letting of the premises by the landlord also ends the tenancy, and ends the tenant's continuing rent liability with it, because re-letting is an act incompatible with the continuation of the original tenancy.

 

 

In my opinion, a verbal agreement will not amount to a valid surrender of a tenancy.

 

To create, or to vary, a contract - including a tenancy contract - the parties must adhere to the normal rules for the creation of a binding agreement: namely an offer, acceptance of it, and consideration. In the circumstances discussed, there is normally no consideration given by the landlord or the tenant: indeed quite the reverse, since the tenant is being released from the continuing liability to pay the rent.

 

A deed of surrender is the normal method for giving legal effect to a surrender of a tenancy, because a contract by deed (i.e. under seal and witnessed) is exempt from the requirement that the contract must be supported by consideration.

 

What normally brings the letting to an end in such cases, and the tenant's rent liability with it, is the re-letting of the premises by the landlord, i.e. an act incompatible with the continuation of the original tenancy agreement, not the invalid contract of surrender. In your case the landlord seems to have no intention of reletting; but if he does relet it would normally have the effect I've described.

 

 

A tenant being sued for rent arrears might seek to rely on the highly uncertain vaguaries of an estoppel, which is a discretionary remedy only; but he must take legal advice from a Solicitor on that highly technical and specialised legal defence. That would be based on an invalid verbal agreement to surrender.

 

A surrender might, at best, bring to an end the rent liability; but it will not - unless, perhaps, if professionally prepared in writing, by deed - prevent the landlord suing for disrepair or other breaches of the terms and conditions of the letting.

 

 

A precautionary notice to the landlord seems to be necessary, if you desire to give notice to end the tenancy for sure at the end of the next rent period, i.e. on 17th June. But see a Solicitor, because it will need to be very carefully worded, so as not to create a new tenancy - or revive the original tenancy by accident - nor to prejudice any case you might have for claiming that the tenancy has already ended.

Edited April 27, 2011 by Ed999