No rent or deposit paid - valid agreement?

newname1

I usually post in other areas of the forum under another name, but as this isn't my query but that of a family member, decided to use a new name - hope that is ok.

My family member has a rental property - as a favour rented to a friend of a friend. A tenancy agreement was signed (assured shorthold) and tenant was given keys on promise they would pay the deposit and rent on first day moved in.

No money was ever paid.

It didn't look like tenant had moved in (never seen by neighbours) and so landlord let themself in (yes, wrong i know) and decided tenant obviously wasn't living there and so readvertised property.

New tenant moved in and all was (seemingly) ok.

Now (1 year after new tenant moved in) the old tenant is suing for unlawful eviction and breach of contract (thousands of pounds claimed). Can they do this?! I accept if the tenant had paid deposit or even 1 day of rent the landlord cannot just let themself in, but is the tenancy agreement valid and binding if there is no deposit or rent paid?

Any help very welcome.

BitterAndTwisted

The old "tenant" is an opportunist of the worst order. They have very possibly been viewing threads on this forum. Your friend should have gone through the proper procedures to regain possession as I'm sure you realise. In this instance I would be tempted to call the friend-of-friend's bluff. A year later! Never paid a penny in rent!

king100

Think you will have to read the fine print of the agreement.

What was the time frame between signing the agreement and your friend going round to check if old tennant had moved in?

Days,weeks, months?

newname1

Bitter & Twisted - More than an opportunist I think as letter is from a solicitor and says he has legal aid funding to pursue claim.

King - Tenancy signed in August to move in a couple of days later. Landlord had heard nothing (and been paid nothing) so went to property in October and new tenant moved in in November.

Landlord just assumed as rent not paid, the agreement was not valid but cannot seem to find info on this on the internet (and not sure where else to look!)

BitterAndTwisted

If your friend's non-tenant is receiving Legal Aid (and I doubt this, they probably have a friend who works in a Solicitor's office, as happened to me once) they should consult a professional themselves. There are formal procedures in place for regaining possession which your friend should have adhered to but going by the time-scale between expected moving-in and the second tenant's occupation one could argue that the first non-tenant had plenty of opportunity to contact the landlord and either confirm when they were going to move in and hand over the flaming rent or wanted to surrender their contract.

If I were a judge I'd kick that non-tenant's backside out of court but then I'm no judge, alas. When I rule the world it will be very, very different.

G_M

A tenancy is only created when a tenant moves in I believe, so there was no tenancy. Therefore no need to go through processes like S21/court orders etc in order to get possession back. Therefore there was no unlawful eviction. Indeed from what you say there was no eviction at all since the tenant never took up occupation.

However, there was a binding contract, since a document was signed, with Consideration on either side. A claim for breach of contract is possible therefore, with a claim for damages.
However the defence that the contract was rescinded by non-occupation, and subsequent re-possession/re-letting would I suspect, be looked at sympathetically by a court.

And even if breach of contract was established, what damages are claimed? What has the tenant lost? Presumably he's been living somewhere else for a year, so potentially the difference in rent between the property in question and another, higher rent value, property where he's lived?

However this view is to a large extent conjecture - I'm not expert in the area so specialist advice is recommended.

BitterAndTwisted

I would suggest that the "consideration" on the part of the non-tenant would have to be payment of the rent. They never paid any, did not contact the LL about this tenancy and have only contacted the LL a year later. Opportunist. They can't have suffered any loss or they'd have contacted the LL or moved in before the November.

Hump

Were it to ever get to court - Your family member's defence to the 'unlawful eviction' bit (s27 Housing Act 1988) is that he had a reasonably held belief that the tenant had gone (having never moved in).

To counter the claim for damages try to establish whether anyone has bothered to pay the Council Tax for the period when they were supposedly living there? The Council should at least discuss whether it's been paid with the property owner - if the 'non-tenant' hasn't registered and paid the Council Tax then your family friend should speak to the water company (same sort of questions), gas, electric etc - might mean they have to pick up a couple of bills but it all goes to support the idea that the 'non-tenant' never moved in!