tenancy ended by returning keys - advice requested

jakeyd

In November I entered into an Assured Shorthold Tenancy. I paid six months rent upfront. In December due to a change in circumstances I wished to terminate the tenancy (I had a six month break clause but wished to do it right away). The agency told me that if I handed back the keys they would remarket it and they were confident they could find a tenant in a matter of a week or two. They said they would only remarket it if I gave them the keys back.

So I had no use of the property, and they ended up taking until end of March to find a tenant (i got this property the first week it was on the market!). They have confirmed to me in writing that up until mid-March they were marketing it under the landlords instructions as available only from May onwards. They only admitted this to me a couple of weeks ago - obviously I would not have agreed to hand the keys back if I'd known this.

Do you think i have a case against the agents/landlords in that by asking me to return the keys they have de facto ended the tenancy? Especially as the same agents managed the property, and held a separate set of keys which they could have used for viewings with me living there! And can I do anything about the fact that they pretended to me they were marketing it for rent immediately and this was not the case (I have emails that clearly state this)

Thanks

Jowo_2

Check with Shelter - I believe that a landlord is obliged to try and mitigate their losses by finding new tenants and you fortunately have some proof that the landlord did not do so. However, they didn't have to accept your request to surrender the contract early. A tenant sending back keys early doesn't formally end a tenancy and most early surrenders are accepted on the basis that there is no loss to the landlord and the tenant must pay for any void periods until a replacement is found.

Did the landlord/agent advise you that you would be responsible for the rent until a new tenant was found, plus any marketing costs associated with the early relet, such as advertising costs? Do you have anything to this effect in writing?

Looks like you should consider taking them to court to recoup some of your rent that you paid upfront. I've not actually come across a similar issue before - that of a landlord squandering their opportunity to find a new tenant for an empty property when the previous one left early but paid for the rent upfront. Perhaps some other posters have and know the likely outcome if you challenge this.

DVardysShadow

As they have confirmed LL's instructions in writing, you are in luck, in that you can show that LL did not attempt to mitigate losses. However, what do you have to show that you ended the tenancy? Do you have a checkout inventory?

I would say you are due a refund from the entry of the new tenant, plus return of your deposit, but tell us what you ahve.

jakeyd

My issue is that I ended up paying for over three months' in which I had no use of the property. I was advised that I would pay rent until a new tenant was found, plus there would be an agent's fee deducted from the rent returned. I was all right with this, but it turned out they were marketing the property for new tenants to take possession in May.

Had I known this I never would have surrendered the keys, as I would have looked to come to some other arrangement with the landlord, like an agreed sub-let for the rest of the time. I have ended up severely out of pocket. By telling me they could only remarket it when I surrendered the keys (despite the fact that they already had a set, so they could have shown it), they deprived me of use of the property. I have a strong suspicion (but no proof) that the landlord moved back into it as soon as I gave the keys back.

jakeyd

DVardysShadow wrote: »

As they have confirmed LL's instructions in writing, you are in luck, in that you can show that LL did not attempt to mitigate losses. However, what do you have to show that you ended the tenancy? Do you have a checkout inventory?

I would say you are due a refund from the entry of the new tenant, plus return of your deposit, but tell us what you have.

No checkout inventory was ever done, but there was professional cleaning done the day after I sent back the keys, which I paid for (agreed in writing it was to be subtracted from the deposit), as per the contract which stated I was responsible for that at the end of the tenancy. I have the dated invoice for that, and the email discussions about it.

I am about to put a small claims court claim in, can anyone tell me where I can find the statutory obligation for LL to attempt to mitigate losses - is it in a piece of legislation?

Jowo_2

jakeyd wrote: »

I am about to put a small claims court claim in, can anyone tell me where I can find the statutory obligation for LL to attempt to mitigate losses - is it in a piece of legislation?

This is often cited as their responsibility but equally often it is disputed by others. Afterall, the landlord has a legally binding contract that obliges the tenant to pay for the entire duration of the tenancy.

I don't think you'll find it in legislation (such as housing law) but due to legal precedents (previous cases that have been bought to court which has resulted in guidance in how to treat similar ones).

Hopefully a poster can cite some actual cases where the landlord has lost a similar case. I've seen them cited before for commercial property.

Perhaps Shelter can advise you of your chances of winning the court case or whether they think it will be a waste of the small claims court fee. Obviously the Xmas/New year period and early part of the year is a generally weak time to find new tenants.

jakeyd

Something else that happened is that I, when surrendering the keys, made the offer to the agents that if there was a low offer, I would be happy to make it up to the level of rent I was paying for the first six months of the new tenancy, and was open to negotiating this with the landlord.

I never heard anything about this, and was subsequently informed that there had been many offers on the property,but the landlord had rejected them all either for being too low, or unsuitable. Would I be able to ask the agents to disclose details of this offer when this comes before the small claims court? And was the landlord rejecting my offer to make up the difference of a low offer failing to attempt to mitigate their losses?

jakeyd

Jowo wrote: »

This is often cited as their responsibility but equally often it is disputed by others. Afterall, the landlord has a legally binding contract that obliges the tenant to pay for the entire duration of the tenancy.

I don't think you'll find it in legislation (such as housing law) but due to legal precedents (previous cases that have been bought to court which has resulted in guidance in how to treat similar ones).

Hopefully a poster can cite some actual cases where the landlord has lost a similar case. I've seen them cited before for commercial property.

.

I would be really grateful if anyone could cite me a precedent, for commercial or residential property!

clutton_2

i think if you have a read over on www.landlordzone.co.uk you will find that a LL is not legally liable to mitigate his losses.....

jakeyd

clutton wrote: »

i think if you have a read over on landlordzone.co.uk you will find that a LL is not legally liable to mitigate his losses.....

I found this on landlordzone.co.uk, seems to apply to a similar case:

The tenant is on a 12 month contract which means she is committed to this. There are several options here: (1) the landlord can voluntarily release the tenant from the contract (2) the landlord can release the tenant from the contract agreeing compensation for losses - re-letting expenses and void time (3) the tenant can find another tenant acceptable to the landlord, whilst paying re-letting expenses (4) the tenant leaves anyway, in which case the landlord can sue for breach of contract, but must mitigate these losses by re-letting as soon as possible, but claiming all re-letting costs here is quite legitimate.

What makes you say a LL is not legally liable?

jakeyd

clutton wrote: »

i think if you have a read over on landlordzone.co.uk you will find that a LL is not legally liable to mitigate his losses.....

Does anyone have any further information, advice, or legal precedents about a LL's obligation to mitigate their losses? It's not a statutory requirement, but anyone know of a similar case, or could advise me if and how my LL has failed to keep to this obligation?

Thanks