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Hi everyone, my brother and his wife have got a situation with their landlord, they have a 30 day rolling contract (I can confirm this if any one needs the specifics) the story thus far is below:

 

On 3rd Nov, they gave notice and informed the landlord/letting agents that they were vacating the premises on 3rd Dec 2012.

 

On 10th Nov the property they were moving to was removed as the landlord decided to pull it off the rental market and sell it.

 

On 11th November they informed the letting agent they had been let down and were not moving after, they told the letting agent they were going to be staying for the 'foreseeable future'.

 

On the 11th November the landlord responded with a request for clarification of 'foreseeable future' and specifically whether this would mean the continuance of their tenancy past Christmas 2012.

 

My brother and his wife responded with they were looking at a couple of other place and if the places where not suitable they would then stay beyond Christmas and possibly beyond.

 

On 21st November they informed the letting agency/landlord they were moving on the 3rd after all.

 

On the 22nd November, the landlord informed the letting agent that he was unhappy and was seeking another months rent with this statement - 'This leaves us with at the very least one months loss of rental earnings through no fault of our own which is unreasonable. '

 

23rd they landlord then retracted the demand and made a new demands for 2 weeks rent - and therefore we can offer a compromise of two weeks additional rent to be paid by X which results in two weeks loss of rental by ourselves.

 

The landlord then added this - As we have already signed and exchanged a new agency agreement with XXX we will contact them to determine if they have incurred any costs to date for advertising, preparing new Tenancy papers etc and advise you accordingly.

 

They had advertised the property for let from the 3rd-11th Nov and apparently had a couple of viewings but no firm offers. The adverts were pulled on the 11-12th and resumed on the 22-23rd.

 

So, the questions...

 

  1. What the heck do we do about this?
  2. Is he liable for the additional rent demand?
  3. Is he liable for the losses of the letting agent? - I do not believe the landlord not the agent has actually suffered any real world tangible loss...
  4. If he refuses to pay I assume the landlord will dispute the return of the deposit, how does he go about defending this claim? Should he defend it?

 

That will do for now, I look forward to a few thoughts from Caggers on the forum...

 

mrbrooks

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hi, about the deposit - is this a protected deposit or a non protected deposit? i remember reading something where a landlord did not protect the deposit and this prevented the landlord from evicting the tenant using section 21 notice. also the tenant sued and claimed for 3 times the amount of deposit.

 

just a thought.

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Hey deano, the deposit is protected...the real issue here to my mind is the landlord claiming 'loss', he has suffered no tangible loss as far as i can see, the bills are paid, the Nov rent is paid till the 3rd Dec, he has/will have had almost 2 weeks to get his advertising back on track by the time they vacate, also the adverts ran from sometime after about the 5th November for a week, and cancelled on the 12th, as far as I am aware they had only a couple or so enquiries (though am not certain how many)....

 

I do accept maybe the letting agency could claim they made efforts to advertise the property and they had to bear the costs of such, how much this is who knows, I figure, if they(the agents) feel they have suffered a loss, then surely they cannot demand it in additional rent nor move to have it taken from the deposit they must make a request for it as a seperate issue and issue a claim if they feel they have a strong case.

 

As for the landlord, I see no tangible loss on his part directly, he has no guarantee the property would be filled let alone a swarm of interested tenants responding to his November adverts...He cannot show he has lost anything, nor would have lost anything, he cannot prove he would have had the property filled by the time my brother vacated...

 

Anyway, many of my thoughts are just guesswork and assumptions, correct or not, at this juncture, and I hope for some more input from folks a whole lot more knowledgeable than myself in this area...

 

Thanks all

 

mrbrooks

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hi, i know that most letting agents only charge 10% ish from tenants monthly rents. some may also have extra charges for finding tenants and so on...

maybe if you explain a bit about the 30 day rolling contract, what notices need to be given etc then hopefully someone will be able to give you advice.

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Hi deano, yeah im not sure exactly what they have, I have asked my brother for a copy and explanation of what he thinks he has, once I know I will post up and let everyone know the exact type, length, notice period etc etc...

 

thanks

 

mrbrooks

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I presumme they gave notice in writing?

I also pressume the LL accepted the cancellation of the said notice? and they would be staying on in the property. ( costs for readvertising etc would have to be accepted IMO )

So new notice was given on 21st November, should be writing, they are liable for rent until the end of the next rental period, and as you have to give one months clear notice commencing prior to a rental period; this will be the 2nd/3rd January 2013.

So IMO if you can reduce that liability at all, I would accept it.

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Hi ray, the original notice was given by email, with regards the retraction of notice, there is no official 'we accept your retraction' but the landlord did ask for confirmation that they were staying beyond Christmas, my brother never specifically agreed to this however.

 

How i see it is, the original notice was for termination on 3rd Dec, this was retracted 11th Nov with an email, the landlord responded with can you explain 'foreseeable future' and does this mean you will be here beyond Christmas, and this is where it gets woolly...He did not officially accept the retraction, and they did not agree they would be staying beyond christmas, they only stated IF the premises they were viewing were not suitable they would stay beyond Christmas.

 

I agree with the landlord technically being entitled to something, the question is what, after all he has now accepted the original date of termination as the 3rd December, not the date from the second notice of termination + 30 days (which is the 23rd Dec), he has already been paid for the property upto the 3rd Dec which leaves 20 days I spose of potential rent owing...

 

Thus I agree with regards to reducing the liability as the landlord may well be able to claim at least 20 days and maybe the full month, but I am not sure how is re-acceptance of the original date for termination (ie 3rd December) actually affect his own end of the case? Also if they pay additional rent, say to the 23rd, are they still then entitled to 'hold the keys' as technically they are still the valid tenants.

 

The landlord has begun advertising the property, based on them vacating by the 3rd Dec, however like i say, if they are technically going to pay beyond this date then surely the landlord cannot let the property to other clients whilst they still hold the valid tenancy?

 

My point being, it seems to me, the landlord wants it both ways, he wants money for his, supposed loss, and wants to keep to the original date of 3rd Dec for vacating, and wants new tenants in that week...sounds a little greedy and one sided to me. and after all, none of this is my brothers fault, he was let down himself by another landlord, I accept he needs to work something out with the current landlord but I don't see why he should shoulder the whole cost of this situation when it is not of his doing.

 

Re

costs for readvertising etc would have to be accepted IMO
Who has to accept these costs?

 

Again, any thoughts and advice is most welcome...

 

mrbrooks

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Your brother is lucky if LL did accept Ts NTQ. Once a T has served valid NTQ during periodic tenancy, the T cannot ubilaterally withdraw it and the T would terminate on expiry. After which, T would become an excluded occupier and LL could claim 2x daily rent as mesne profit for duration of overstay.

Raydetinu's suggestion is sound, as Ts liability with new NTQ would not end until 2 Feb 13.

 

edit. just read latest post.

The Notice period is min 1 cal month if rent due monthly, not 30 days. It could be almost 2 months if statutory dates are not complied with. If rent is due on 3rd then full month is due. Any pro-rata rebate is at discretion of LL. Only rule is LL should not benefit from 2 rents from 2 Ts for same period. If the new T moves in, then brother's laiability would cease on that day. I don't see how LL could accept orig NTQ expiry date as it was conditional. In effect an offer of early surrender which T later retracted. Hence ray's interpretation that your brother cannot rely on 3 Dec date and should resubmit a new SPT NTQ by 2 Jan to expire 2 Feb.

Edited by mariner51

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Hi Mariner, thanks for the post, im sorry to have to say this, but, can you please explain it in english for me :???:

Your brother is lucky if LL did accept Ts NTQ. Once a T has served valid NTQ during periodic tenancy, the T cannot ubilaterally withdraw it and the T would terminate on expiry. After which, T would beboma an excluded occupier and LL could claim 2x daily rent as mesne profit for duration of overstay.

Raydetinu's suggestion is sound, as Ts liability with new NTQ would not end until 2 Feb 13.

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T Tenant

LL Landlord LA Letting Agency

NTQ Notice to Quit (which can only be served by tenant)

 

Apologies for brevity.

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after which, T would beboma an excluded occupier and LL could claim 2x daily rent as mesne profit for duration of overstay.
?????

Who would be overstaying? Do you mean if they decided to hold onto the keys? They are moving tomorrow btw...as agreed...

 

What I dont get, is how can the LL have it all ways, surely he cannot accept the NTQ then demand additional rent and also treat them as excluded??? He must surely pick one position???

 

mrbrooks

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If the notice was withdrawn then in essence the landlord has to live with the fact that he cannot realistically offer a tenancy to someone else whether or not he "accepts" the notice. In essence the tenant is threatening a breach of an undertaking by withdrawing the notice.

 

Obviously, the landlord's concern is that he would struggle to get tenants in if it were advertised the week prior to Christmas.

 

Two weeks sounds like a reasonable compromise, and in essence it is a way of limiting the loss. If LL finds tenants quicker than two weeks, he wins. If LL takes more than two weeks, he loses. Alternatively, tenant has to reissue notice and pay till January. LL does not have to hurry to get someone into the property before Christmas.

 

Regarding agent's costs: I suspect that in reality the new agent will not have grounds to charge landlord for not letting the property. Most agents only charge if a tenancy is created.

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Agree, T has to be the one to be fair, LL losing out by mind changes of T.

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Hi all, my brother has offered the LL a weeks worth of rent, based on the fact he hasnt actually lost anything, and that he has new tenants already. I dunno wether he will bite or not, but my brother decided he didnt want to pay anything so I convinced him to at least try to negotiate...

 

Will let ye know what transpires...Thanks everyone for you input and insight...

 

mrbrooks

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Hi everyone, just a final update, offered 1 week, LL was very gracious and accepted.

 

This was after it was pointed out that he had in fact left the to let sign up all the time over the month, thus it would be hard to prove on his part he had accepted any retraction. Further to this he had already gotten tenants lined up from the initial advertising who had already seen the property and once contacted a week after the viewing, they were still keen and they moved in the day after my brother moved out, so his loss was in fact nil...

 

thanks all for your input...

 

mrbrooks

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OK mrbrooks, an acceptable outcome in this case, but brother should be aware that Ts NTQ is legally binding, once served, and cannot be unilateraly withdrawn during notice expiry. LL is entitled to2x daily rent (mesne profit) for any period of overstay.

Mesne profit is not rent and no new AST can arise from payment demand.

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And now, the landlord has decided not to settle for a week, and has now contested the deposit, he agreed then decided he would like to recover the costs of his advertising, and yet, the board was never taken down, the property was potentially off the market for 11 days, and the new tenants were respondents to the advertising, and moved in with no break in tenancy for the landlord...

 

I reckon he is just being a greedy swine, he has clearly lost nothing, and as far as I know, my brother is not responsible for the landlords 'supposed' loss for advertising...I know technically he is potentially owed up to a months rent (but there is also confusion here because the LL never agreed nor disagreed to them staying, he never made his own intentions clear and is simply blaming everyone else for his own confusion)...

 

However, i don't see how my brother is responsible for this supposed loss of advertising, and if the LL is using this as his claim, I do believe he will come unstuck because clearly he has lost nothing and the cost of his advertising have in fact been reduced because he didn't have to continue paying for advertising and got a tenant anyway...

 

I feel the guy is simply being obstructive and awkward and never had any intention of accepting 2 weeks or 1 weeks...I stated as part of the acceptance and agreement that he not contest the outstanding deposit amount with regard to this, and yet he has, so I'm assuming he is going to say he is not contesting the deposit based on the 'loss' but is going to try to screw the cash out of him for something else...we took photos and personally did the hand over with my brother and the letting agent so we know there's nothing wrong, but apparently he tried to claim £200 from the last tenant for 'cleaning' the windows and in the end offered him £100 just to release the deposit, he has a history of it apparently...so am expecting some cock and bull reason as to why he feels he should keep the deposit...

 

Thoughts please...

 

mrbrooks

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Put the deposit in dispute with DPS ADR.

 

LL is def legally entitled to rent up to 3 Dec and prob beyond due to confusion caused by brother.

 

If LL is offerin settlement if paid to 3 Dec...............................

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Hi Mariner, LL had rent upto 3 Dec, it was already paid up...So that's my point, he lost nothing, it cost him nothing and he has basically been an ahole about the whole thing...and he has acted less than satisfactorily himself with regard to protocol...

 

LL had offer of a week, my brothers offer, he said yes, then changed his mind, brother offered him the 2 weeks the LL initially demanded, he said no and has also refused to allow the release of the deposit...like i say, hes just being an ahole about it...and there is no need for it...i think he really should not be entitled to anything, but an offer of 1 weeks rent is reasonable, 2 weeks is more than enough and this nonsense he is doing now is just unreasonable, obstinate and very bad behaviour in my opinion...

 

mrbrooks

 

--EDIT--

 

Just to clarify, LL had rent upto 3rd December this was never in dispute, what the LL wants is additional rent to cover his supposed loss, of which there is none, he lost no income due to loss of rental, lack of new tenants or any other means, the money he paid for advertising was not lost (though he claims it is) because the new tenants who moved in the day after my brother moved out, responded to his ads, which incidentally they were still taking bookings for, though the LL claims it was 'off the market', we have this on good advice from the letting agent, add to this, he left the notice board in place advertising it was available and never told them they could actually stay....so all in all I'm sure we could easily argue that he clearly had no intention of letting them stay as he was actively pursuing the engagement of a new tenancy agreement...and more importantly, there is no way on earth he can prove any loss of any description, quite simply because he has not suffered any, he is simply being greedy and trying to bully my brother out of his deposit...my brother just wants the guy out of his life and the guy is using this to make life difficult for my brother...

 

mrbrooks

Edited by mrbrooks

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Well if ADR cannot sort or you and LL dont accept, only recourse is to court and let a judge decide; thats what there for.

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