anyone????

[reggie42]

Hi

I've put this question up 3 times now with no response - am I doing something wrong here??

If anyone can help at all I'd REALLY appreciate it - even if just to point me in a direction I can look.

 

am writing on behalf of a friend who has taken out a contract for a student house. He was attacked near the house recently and is being severly harassed by the attacker since then. He has moved out of the house, and all his friends have too for fear for their safety but is still in joint and several contract til next year. He has told his landlady they want out of the contract and is trying to find replacement tenants, but the landlady has now put the rent up by £100pcm and is insisting he only gets 3rd year/post grads in - these conditions weren't here when he originally took the tenancy on.

This is making it really difficult to find replacement tenants and my friend now is paying rent on 2 properties. He can't live in the original house because of fear of his attacker.

Is the landlady within her rights to do this?

[Planner]

Does the tenancy have a 6 month break clause? and have you tried LandlordZONE Forums - Residential Letting Questions for answers?

[Aequitas]

He signed up for the tenancy. He has a contract with the landlady. If he wants out he has to do it on her terms. If she relets that brings the tenancy to an end.

[Ed999]

He signed up for the tenancy. He has a contract with the landlady. If he wants out he has to do it on her terms. If she relets that brings the tenancy to an end.

 

 

I disagree.

 

For one thing, if the tenant has been mislead, by an actionable misrepresentation by the landlord, made before the letting contract was entered into, the contract may be void or voidable. The correct question to ask is: what enquiries did the tenant make of the landlord before entering into the contract?

 

 

Another relevent question is: who is doing the attacking? If the landlord is in collusion with others to assault or harass the tenant, both the landlord and the third party commit a criminal offence. Assault, ABH, and an offence under the Protection from Eviction Act 1977 or the Protection from Harassment Act 1997, may all have been committed.

 

If the tenant is being harassed by a third party, independent of the landlord, then the third party still commits a criminal offence of assault, ABH, or Harassment.

 

This is plainly a matter for the police, to arrest the harasser and prosecute him. This offence carried a term of 6 months imprisonment under the 1997 Act. Imprisonment of the third party will remove the problem.

 

 

Alternatively, the tenant can give notice to terminate the tenancy, if there is an express notice clause in the letting contract. Or he can assign or sublet to a third party, or share occupation with a third party, unless the agreement prohibits all of those things.

 

 

Alternatively, a tenancy can be brought to an end by a surrender. If the tenant hands in the keys, and the landlord accepts them, this may of itself be a sufficient surrender.

 

Re-letting certainly indicates an acceptance of a surrender, but any other act that demonstrates unequivocally an intention on both sides to bring the tenancy to an end can also do this, such as e.g. vacating and handing over all the keys to the property.

 

 

The landlord might have a duty to mitigate her loss. If so, handing over the keys forces the landlord to try to re-let. If the landlord does nothing, she might be leaving herself open to an argument that she failed to mitigate her loss. This should be expressly pointed out to her, in writing.

 

The tenant needs to get the landlord to sign a document of surrender, ideally. Even a mere letter signed by her acknowledging the surrender may help.

 

But merely moving out all his goods and delivering up all the keys may put some pressure on the landlord to re-let, in order to mitigate her loss, particularly if the tenant can prove that there were other persons interested in renting the premises.

 

It is not for the landlord to dictate who she will let to. If the tenant can show that there is anyone willing to take a tenancy of the premises, that will help him prove a failure to mitigate loss if this is an issue.

[Aequitas]

There is an understandable tendency to think of a tenancy as a contract that confers a right of occupation. However, it is above all an estate in land to which obligations are incidentally attached. This means that it has pecularities that do not apply to "ordinary" contracts. In particular:

 

1. The doctrine of frustation can only apply in exceptional circumstances.

 

2. A tenancy cannot be rescinded. When it comes to recission, it is necessary to distinguish between a case where there is a contract to grant a tenancy that has not been completed (an executory contract) and a case where the tenancy has begun. If a party to an executory contract has failed to perform its obligations or has made a misrepresentation then the other party may have the right to rescind. However, once the tenancy has begun recission is not available and the remedies lie elsewhere, e.g. in damages or specific performance.

 

3. The duty to mitigate losses does not apply, at least in the case where the tenant no longer wants the premises and the landlord continues to demand rent when it is due. Any doubts about this have been removed by the case of Reichman and Another v Gauntlett and Another.

 

A tenancy is an estate in land and has a special character. A tenancy can only come to an end:

 

1. In the case of a fixed term tenancy by effluxion of time or the exercise of a right to break.

 

2. In the case of a periodic tenancy by notice.

 

3. By surrender, express or by operation of law.

 

4. Merger.

 

5. Disclaimer.

 

6. Forfeiture.

[reggie42]

Hi all

thanks for the responses:)

its given me lots of info to pass on -much appreciated

[Douglas52]

I recall that the OFT site has some stuff about unfair terms in consumer contracts (UTCC) and it stated that the landlord had to re-let to mitigate losses other wise this constituted an UTCC breach.

[Aequitas]

I recall that the OFT site has some stuff about unfair terms in consumer contracts (UTCC) and it stated that the landlord had to re-let to mitigate losses other wise this constituted an UTCC breach.

 

I remember reading that and thinking they had the law wrong. The case I referred to above has confirmed they do (did? I wonder if they have amended their site) have the law wrong. See this thread: http://www.consumeractiongroup.co.uk/forum/landlords-tenants/74071-tenant-leaves-early-whether.html

[Ed999]

The duty to mitigate losses does not apply, at least in the case where the tenant no longer wants the premises and the landlord continues to demand rent when it is due. Any doubts about this have been removed by the case of Reichman and Another v Gauntlett and Another.

 

 

I disagree. In Reichman v Gauntlett it was an essential aspect of the Court of Appeal's decision that the tenant had the right to assign or sub-let the premises, as this was not prohibited by the terms of the tenancy agreement.

 

The decision is accordingly limited to cases in which assignment and subletting are permitted, a situation in which the tenant can relet the premises himself, and will thus probably suffer no loss.

 

I have already mentioned that Reggie42's friend can assign or sublet the premises to a third party, or share occupation of the premises with a third party, unless the tenancy agreement prohibits all of those things.

 

 

I cannot see how, in the present circumstances, the tenancy could be brought to an end by merger, disclaimer or forfeiture.

 

None of those grounds appears to arise. Although, if appropriate, no doubt the tenant could have himself declared bankrupt, in the bankruptcy county court, whereupon his trustee-in-bankruptcy would have the right to disclaim unprofitable contracts.

[Aequitas]

Whilst the judge did mention that the tenant had the right to assign, the court's argument ran something like this:

 

1. A landlord can only relet if he takes back control of the premises.

 

2. If he takes back the premises he forfeits the lease.

 

3. If he forfeits the lease the tenant's obligations, including the obligation to pay rent, end on the date of forfeiture.

 

4. There is no rule of law that allows a landlord to claim damages equal to the rent he would have received for the period between forfeiture and reletting (or if earlier, the end of the fixed term).

 

5. Accordingly, the only way a landlord can mitigate his loss is to take a risk and that cannot be right.

 

If there were an automatic right for tenants to "hand back" properties they no longer required I would have to ask why the Landlord and Tenant (Covenants) Act 1995 was passed.

[Ed999]

I can't quite see how this affects this particular tenant.

 

If the tenancy agreement does not prohibit assignment, subletting and sharing of occupation, then the tenant can dispose of the premises in one of those ways to a third party.

 

In the ultimate, the tenant can have himself declared bankrupt if his liabilities exceed his assets, although this will have a devastating effect on his credit rating. Bankruptcy also lasts at least three years.

 

I doubt the landlord will have heard of Reichmann v Gauntlett, so it's worth mentioning to her the need to mitigate her loss by reletting.

 

From my experience of solicitors, I doubt her solicitor will have heard of it either! ;-)

 

Handing in the keys often has a devastating effect on landlords, who will usually rush off and relet without appreciating the legal significance of doing so.

[Joa]

A little bit off topic:

 

4. There is no rule of law that allows a landlord to claim damages equal to the rent he would have received for the period between forfeiture and reletting (or if earlier, the end of the fixed term).

 

 

I was under the impression that until the l/lord accepts the surrender, by re-letting for example, the tenant is responsible for rent. No specific rule of law necessary. Am I correct?

Aequitas, check your PM inbox, please.

[Aequitas]

I can't quite see how this affects this particular tenant.

 

Well we have rather drifted into general principles.

 

 

From my experience of solicitors, I doubt her solicitor will have heard of it either! ;-)

 

As a legal executive I couldn't possibly comment.

 

Handing in the keys often has a devastating effect on landlords, who will usually rush off and relet without appreciating the legal significance of doing so.

 

No harm in bambozzling the opposition.

 

In practice, residential landlords are usually better off cutting their losses and reletting.

[Aequitas]

A little bit off topic:

 

I was under the impression that until the l/lord accepts the surrender, by re-letting for example, the tenant is responsible for rent. No specific rule of law necessary. Am I correct?

Aequitas, check your PM inbox, please.

 

The forfeiture takes place as soon as the landlord takes back control of the property or, if he issues proceedings, the date that notice of the proceedings is served on the tenant.

[Ed999]

The forfeiture takes place as soon as the landlord takes back control of the property or, if he issues proceedings, the date that notice of the proceedings is served on the tenant.

 

 

No. The tenant has a right to apply for relief from forfeiture, so the forfeiture only takes effect when a court order is granted.

 

Serving the writ is conclusive only as to the landlord's intention to end the tenancy. The forfeiture may take effect from the date of service of the writ, under the terms of the court order, but a residential tenancy can't be forfeited by re-entry, only by court order. There is no power of peaceable re-entry in a residential letting.

 

A surrender is achieved by agreement. It is not an act of forfeiture.

[Aequitas]

No. The tenant has a right to apply for relief from forfeiture, so the forfeiture only takes effect when a court order is granted.

 

Serving the writ is conclusive only as to the landlord's intention to end the tenancy.

 

No. The position is as I stated above. If the forfeiture were not immediately effective it would never happen if the tenant never applied for relief. When relief is granted it has the effect of retrospectively reviving the lease - a case of statutory magic.

 

but a residential tenancy can't be forfeited by re-entry, only by court order. There is no power of peaceable re-entry in a residential letting.

 

This only applies so long as the tenant is not in occupation. It is of course when the tenant abandons the premises that forfeiture by peaceful re-entry typically takes place.

 

A surrender is achieved by agreement. It is not an act of forfeiture.

 

Agreed.

[Ed999]

There is no power of forfeiture by peaceable re-entry in a residential letting. That power survives only in respect of commercial premises.

 

If the landlord takes back possession of a residential property in the way that you're suggesting (what is described informally as an abandonment) he is in law simply accepting a tenant's surrender of the lease.

 

He is not forfeiting. In a residential letting, forfeiture is only possible by proceedings: by service of the writ, and obtaining of the court order.