tenancy ended by returning keys - advice requested

snapping_crocodile

I'm afraid you signed a binding contract to rent the porperty until may (?) No break clause until the end of the 6 months means you are legally responsible for paying the rent until the end of this period. Not doing so breaks the contract, in the same manner a LL would not be able to evict you (unless you stopped paying rent), until the end of the 6 months. I found these two articles which may be useful re landlord's repsonsibility to mitigate losses....in that apparently he has no responsibility to do so.

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/116844-tenant-leaves-early-whether.html

http://www.netrent.co.uk/NetRent-Landlord-Resource-Centre/page/55-When-and-if-the-tenant-can-leave-during-the-tenancy.aspx

jakeyd

snapping_crocodile wrote: »

I'm afraid you signed a binding contract to rent the porperty until may (?) No break clause until the end of the 6 months means you are legally responsible for paying the rent until the end of this period. Not doing so breaks the contract, in the same manner a LL would not be able to evict you (unless you stopped paying rent), until the end of the 6 months. I found these two articles which may be useful re landlord's repsonsibility to mitigate losses....in that apparently he has no responsibility to do so.

(links to Reichman v Beveridge)

Thank you for this - I have just been looking at the court of appeal decision in those articles. White and Carter (1962), which was the precedent unsuccessfully used by the defendants in Reichman v Beveridge (above mentioned court of appeal decision) does state an obligation for the landlord, if able to repudiate the lease, to mitigate their losses by attempting to re-let the premises. If only able to do this at a lower rent, they can then claim damages for the difference in rent lost.

The test the judge applied in Reichman v Beveridge was whether the landlord's actions in continuing the lease, and continuing to demand rentcould be characterised as wholly unreasonable in light of the tenant's default to pay rent.

Macfarlane, Hopkins and Nield in 'Land Law text, Cases and Materials' put forward the argument that the reasonableness of the landlord's decision to treat the lease as continuing may be less easy to prove where ... a replacement tenant is readily available.'

This was the case for me, there were many offers made on the property. I also suggested to the agents that I could find a tenant, and then agree a sub-let, but they were insistent on me returning the keys.

I think another point worth making about my surrender is that I did not volunteer to return the keys, I was told that returning the keys was a condition of the agent remarketing the propety ie they would not start to find a new tenant before I returned the keys.

Another aspect of the landlord's unreasonable behaviour was in instructing the agents only to accept a tenant who wished to start a tenancy in May (the expiration of my tenancy). so the agents asked me to forfeit the keys, but had no intention of getting a tenant until my tenancy was fully expired - so not attempting to mitigate losses in any way.

I'd be grateful if anyone with legal knowledge would tell me what they think of this argument.

N79

It might work, but you have the statutory nature of the AST, the contract you signed and case law against you. I would rate your chances at well less than 20% but don't let that put you off. Afterall, any argument you make will come up against the brick wall that the LL did not have to do anything at all and was perfectly entitled to just keep charging you the rent.

If you have a clear, written commitment from the LL to market the property and to allow early surrender subject to this marketing then that will help your case - I can not see any reference to what written agreement you made with the LL at the point of surrender.

jakeyd

N79 wrote: »

It might work, but you have the statutory nature of the AST, the contract you signed and case law against you. I would rate your chances at well less than 20% but don't let that put you off. Afterall, any argument you make will come up against the brick wall that the LL did not have to do anything at all and was perfectly entitled to just keep charging you the rent.

If you have a clear, written commitment from the LL to market the property and to allow early surrender subject to this marketing then that will help your case - I can not see any reference to what written agreement you made with the LL at the point of surrender.

There is a written email saying that they agree to remarket it ONLY after I surrender the keys to them. Previous and subsequent emails show clearly that their intention (stated to me is to find a tenant immediately. They then admit two months later that they did not market the property under these conditions, but rather for occupancy at the end of my lease.

When I threatened legal action at that point they told me the landlord had changed his mind and was now advertising the property as for immediate occupation.

Jowo_2

post a summary of your issue on the landlordzone rental forum - one of their members, Jeffrey, is a housing solicitor. perhaps they will know better where you stand than us legal amateurs.

ultimately, small claims court action is fairly cheap and if negotiation with the landlord for a refund doesn't work out, that's where you have to go next, at the risk of losing the fee for your claim.

N79

jakeyd wrote: »

There is a written email saying that they agree to remarket it ONLY after I surrender the keys to them. Previous and subsequent emails show clearly that their intention (stated to me is to find a tenant immediately. They then admit two months later that they did not market the property under these conditions, but rather for occupancy at the end of my lease.

When I threatened legal action at that point they told me the landlord had changed his mind and was now advertising the property as for immediate occupation.

As a general rule, courts do not consider emails as "in writing" but so long as it is not disputed then it will not matter. That agreement is your strongest card and definately raises your chances of winning.

jakeyd

have posted on landlordzone - will let you know what people's view there is.

jakeyd

here's what they say - it's not good news for me

Taking into account everything the OP has told us I do not think he has a strong case for a refund of any rent.

"When it comes to surrenders you really do need to be crystal clear on what it is you have agreed and indeed whether there is an agreement to surrender or an actual surrender. A tenant should always be looking for a clean break with agreement as to what he pays the landlord to accept the surrender and what allowance should be made in respect of rent paid in advance. Agreeing that the landlord will take the premises back when a new tenant is found rarely benefits a tenant because there is no incentive on the landlord to find a new tenant. If you vacate and give back control of the property to the landlord the situation can become even more confused as doubt arises whether there is an agreement to surrender or an actual surrender."

This seems dreadfully unfair, and all I really can do is leave this as a warning to anyone in a similar position that they are much better off finding a tenant themselves as landlord's consent cannot be unreasonably withheld.

And the agency? Foxtons of course. I should have known better than to rent from them.

Fire_Fox

You signed a legally binding contract, the landlord (or his agent) cannot enter the property until it has been formally surrendered which means in writing with the keys returned. The letting agents cannot simply market the property and let themselves in with a tenant in occupation, this would breach the Protection from Eviction Act 1977. There would have been all sorts of ramifications had they signed up a new tenant and you changed your mind. IMO a large part of the problem is you have taken a wholly casual approach to a formal situation.

Jowo_2

Ultimately, you can only test this by taking the landlord to court and trying to persuade the judge on the merits of your case, namely that you were given an expectation that they would seek a replacement tenant and then the agent revealed that the landlord did not take any action on this at all.

Send a brief letter before action to the landlord (the agent should tell you their address within 21 days of a written request) which gives the landlord x days to pay you the x disputed sum disputed for x reasons. Then if you are ignored, raise a claim through the Moneyclaim online site. There is plenty of info on the internet how to write a letter before action and prepare a small claims court.