Ending Contract Early Advice

[Neonin]

Hi everyone,

 

I'm a student currently living in a 4-bedroomed house that is being let as four separate rooms rather than as a house. However, university hasn't worked out and I plan on moving back to my hometown. My contract was from September 06 and is supposed to end 30th June 07. I've been trying to think of a way of leaving by the end of this month and was going to offer my landlord a compromise where I'd allow him to keep my deposit to pay for April and then I'd offer to spend a week helping him do up the new property he just bought.

 

Today he brought round someone who is looking to move into a property immediately. She was supposed to view his new house but as the people she was going to move in with dropped out he brought her here to see if she'd like it for September. Since she wants to move in immediately I thought this would be a perfect solution, as she could take over my room and my landlord would not lose out financially. I think I read that if I find a suitable replacement then I can leave before the end of my contract, so it seemed ideal.

 

Unfortunately, for some reason my landlord didn't take to the idea and rejected it out of hand. I'm at a loss to explain why (and so are my housemates) but he's turned around and said if I want to argue about it he'll happily take me to court, and that I'm not allowed to find a replacement because they might not be acceptable to him.

 

Is he right? I can't see why he wouldn't allow this new tenant to take over my room in the house. I argued that I could find a replacement but he said in the strictest sense of the word I hadn't, because he'd brought the new tenant round.

 

Is there any way I can salvage this situation? I plan on going home by the end of this month and I really don't want to be stuck paying for a room for three months that I'm not using.

[MrShed]

What does it say in the tenancy agreement about assignment and subletting? The exact wording?

[MrShed]

Also worth reading the replies here, in particular mine where I outline the options available.

 

http://www.consumeractiongroup.co.uk/forum/landlords-tenants/42221-leaving-sooner-than-contract.html?highlight=leaving+early

[Neonin]

1.6 To use the property only as a provate home for the tenant to live in. The tenant must not assign or sublet the property, or take lodgers, or paying guests, or carry on any trade, or business, at or from the property.

 

I guess that's me screwed then. I can't believe there's no way to get out of these things when circumstances change, and I'm especially disgusted at my landlord who's been one of the nicest, friendliest guys I've met up here in Sunderland. I should have guessed he'd have a bad side, especially since it was his brother who wrote the contract since apparently he's a lawyer!

 

What'll be interesting to find out now is whether he lets me leave when he said he would. When I first moved in I told him my course would finish around mid-May and I'd probably want to move out before the stated date. He told me at the time it wouldn't be a problem, but I'm having my doubts now.

[MrShed]

I live in Sunderland

 

What region of sunderland is the property in out of interest?

[MrShed]

But, back to the topic

 

That contract term is unenforceable. It is an unfair term, according to the Office of Fair Trading (OFT) to have an unconditional ban on both assignment and subletting. Therefore, that term you have posted you can safely consider to be null and void.

[Neonin]

I live in Roker

 

Interesting that the term is null and void due to it being unfair... The liklihood of me finding a student willing to take on my room at this time of year is pretty slim and I'm sure if I do he'll argue about it. What kind of conditions can he impose on the suitability of any replacement I might find?

[MrShed]

Yeh really bad time of year to find a student!!

 

In theory, there is an argument that you could assign the tenancyt to whoever you want, as there is now effectively no term in regarding it. Realistically, not such a good idea. Realistically, it would be very unreasonable for the landlord to not accept the tenancy being taken over by someone who passed the same credit and reference checks that you yourself passed.

 

That link I put above will be your absolute best guide to solutions - it is my typical "textbook" answer to the problem. The only thing I perhaps do not emphasize enough is that you are NOT automatically liable for the entirety of the remaining rent. Potentially you could be, but not automatically.

[Neonin]

I just don't understand why he wouldn't let that other student tenant take over my room. Probably something to do with him trying to persaude us to take on his new house so he can rent the rooms out of this one individually. Unfortunately for him it's not going to happen, the rooms in the new place are too small.

 

I'm a bit confused as to the liability for the rent issue. Are you saying that if I were to leave and refuse to pay the remaining rent I'm not automatically liable for it? How does that work exactly?

 

Oh, and I don't think our landlord did any checks. If he did, he never mentioned it and has never asked us for anything other than our "permanent" address to go on.

[MrShed]

I shall explain

 

By leaving, you are terminating the tenancy. The tenancy is, in fact, an embellished contract. Contract law CANNOT, and does not, enforce the contract to be fulfilled - this would never work in many situations. Instead, contract law allows for financial compensation to be granted to the person who did NOT terminate the contract for their ACTUAL financial loss. In theory, in this situation, this would be the rent lost from yourself. HOWEVER, the landlord has an OBLIGATION to attempt to mitigate his(and therefore your) losses. In other words, he must make every reasonable attempt to fill the vacancy. And, if he fills the room in 1 month(for example), he can then legally only pursue you for 1 months rent, as that is his actual financial loss(plus some minor costs - reletting, advertising fees etc). Does that make sense? If he does NOT attempt to mitigate his loss, he cannot legally pursue you for anything.

 

My inclination would be to think along the mitigating his losses line. Put something in writing to him, asking for permission to assign the tenancy to someone who would pass the same criteria as yourself. Also ask if, failing that, it would be possible for him to readvertise the vacancy

to find someone to fill your vacancy, and thus reduce the rent you would have to pay him, ASAP. Also put in a formal date that you will be leaving, further to your conversation. Ask for a reply in writing. If he replies(as I suspect he will) stating that he will do/allow neither, then you have him nailed. At that point, I would move out on the date stated, and let him sue you. If he does, you can prove, using both that letter and the term you have highlighted in the contract, that he has not attempted to mitigate his losses, nor has he allowed you to do so. Furthermore, should he sue, I would countersue for the deposit - which you are entitled to regardless, obviously provided there are no damages.

 

By the way, I would not be intimidated by the fact that his brother is a lawyer or whatever. The vast majority of lawyers do not specialise, or even know much about, tenant law. I do not know of any specialists in the field in Sunderland or the surrounding area, they really are few and far between! And you cannot apply "standard" law knowledge to tenancies, they have some very specific rules.

 

If he replies in the way I have outlined, then there are a few other ways to play hardball with the guy, which I shall go into if the case occurs - namely, that he needs from the council something called an HMO licence. I am guessing he probably does not he would get some fine for this I suspect. And, judging by that term, I am guessing there will be scores of terms in the tenancy agreement that would never hold up in court - if you wanted to email me the agreement, I would be happy to look it over.

[Neonin]

I don't really think advertising fees will come into it hehe, he just puts a couple of flyers he prints off from his computer at home up around the uni campus at St Peters.

 

He's coming to collect the rent on Sunday, so from what you've said would I be correct in assuming that my best course of action is to give him a letter when he gets here with a stated date of departure on it (31st March for arguments sake) and a request that he either allows me to assign my room or fulfills his obligation to attempt to find someone to replace me?

 

Also, how do I know whether he's made a reasonable effort to replace me or not? I kinda doubt he'll report every move he makes to me, and I'm unsure as to what is to stop him sitting on his arse and just telling me he's "trying" until my contract ends.

[MrShed]

I would post such a letter, in order to ensure a written response.

 

The onus would be on HIM in court to provide PROOF of mitigating his losses(ie witnesses, receipts for advertising etc). Advertising fees may come into it, as if he has not advertised adequately then he has not followed every reasonable attempt to mitigate his loss - putting a couple of flyers around campus would NOT be sufficient. A reply as outlined above would also work to show that he did not have the intention of mitigating his loss.

 

I would seriously consider withholding the rent on Sunday, in order to cover your deposit cost, as he is clearly not going to give it back. However that is a personal decision, it could potentially make the last month of living up in sunny Sunderland a tense one!

[Neonin]

I think I will post the letter actually. That way he wont get it till monday morning and can't just read it whilst he's here collecting the rent and then harass me about it!

 

 

Interesting about providing proof... It would be tempting to tell him the measures expected in his letter in the hope he'll realise that messing me around is just going to cost him more money than it's worth, but I'm not sure that's a good idea.

 

As for witholding the rent, well, I'm not sure about that. It wouldn't really affect my last month here as I plan on catching the train back home by the end of next week and would just pop up with my dad before the stated leaving date to pick up my stuff.

[MrShed]

I also would be tempted to put in all the ways in which he is in the wrong in a letter. However, then you have "played your cards" so to speak, and it could well leave you in a worse position. When he realises he cannot prevent you assigning the tenancy, you can be damn sure he will then say ok you can, but always find an excuse - then he has attempted to mitigate his loss, or at least it will be a lot harder to prove otherwise.

 

If you are leaving next week, I would not personally be paying him any more rent. Again, up to yourself.

 

I would definitely recommend posting the letter. Get proof of postage as well(the post office provide a certificate of posting for free I believe).

[Neonin]

That was my thought too. Why make it easy for him by telling him all the ways he's wrong? It's a shame because up till now he's been a brilliant landlord, always fixing things quickly (in the case of a broken microwave, replacing it the day we reported it broken) and friendly as anything.

 

I'm going home next week with a travel bag yes, but my things will remain in the room till the end of the month when I can get my dad to drive me up to collect them. Since they'll be in the room all month, I don't think I can reasonably refuse to pay the rent for March. I'm guessing he'd just throw my stuff out if I did!

 

I have to say thank you very much for all your help and advice so far! I was pretty sure I was stuck paying for a room I wasn't using, but you've given me some options to explore.

[MrShed]

No problem

 

Just a quick one with regards the rent. I am not advocating not PAYING this months rent. Just withholding it and telling him to use the deposit(I am assuming that the deposit is at least one months rent?). This may be the only way to get hold of your deposit effectively without going to court.

 

Anyway I'm going to bed, god only knows what I'm doing up at this time!!! But just post again or PM me if you want any further help and shall answer in the morning

[Neonin]

Ahhh I see. What if he were to refuse with the argument that I'd then be living here without a deposit though? He might decide to be extra awkward thanks to our... discussion... last night, and whilst I'm confident there's nothing he can use as an excuse to keep my deposit I now wouldn't put it past him to try and find something.

 

I'm going to write a draft of the letter I'll send him later today. If I were to post a copy here would you be willing to take a look at it to see if there's anything I'm missing or any bits that could be improved?

[MrShed]

Certainly, post it when done and I'll look it over. And what can he do if he "refuses"? He cannot physically force you to give him the rent for this month, nor can he physically remove you from the property.

[Neonin]

Current Address

 

Date

 

Dear Mr ,

In furtherance to our discussion on Friday 2nd March 2007, I am writing to confirm to you that I intend to vacate the property listed above on the 31st March 2007. I ask for permission to assign the tenancy over to someone who would pass the same criteria as myself. Failing this, I ask if it would be possible to readvertise the vacancy to find someone to fill it as soon as possible, thus reducing the amount of rent I would have to pay.

 

Please ensure that any response to this request is provided to me in written format. As I plan on being away from your property between the 17th - 31st March I ask that any response that would reach me between those dates be sent to my permanent address instead of the above address, which I have provided below and which is also shown on the front of my contract.

 

Yours sincerely,

 

 

 

 

 

Mr C Jenkins

Permanent Address

 

That seems to cover everything. I've booked a ticket to go home on the 17th, so if he's going to waste time and send the reply after waiting then I thought I'd better add that last bit about sending it to my permanent address.

[MrShed]

That seems fair to me, send it!

[Neonin]

I'll get it printed off and mailed on monday

[Neonin]

Hmm, maybe I won't be sending the letter after all. When the landlord came round today to collect the rent he left a message with my housemate saying that he is going to try and find a replacement for me, and he expects me to do the same, but it "won't be just anybody" whatever he means by that...