Dispute with tenancy period/DPS or small claims court? - HELP!

xswitch

Hi all,
I was wondering if anyone would be so kind and help someone who’s in a bit of a pickle.


My housemates and I have recently moved out of our house. It was to our knowledge that our tenancy period was set at 11 months. This is confirmed by several emails, phone calls and meetings with the estate agents prior to the signing of the contract, and a letter from the Deposit Protection Service, all which confirmed this 11 month tenancy period.


On the final day of our tenancy, the estate agents told us that we actually had signed a 12 month contract and owed another month’s rent. We disagreed, and after presenting them with evidence, they admitted the mistake. Again, shortly afterwards they confirmed that our contract was 11 month tenancy period via email.


This week, our guarantors all received letters from the estate agent asking for a month’s rent. We’ve explained the situation to the estate agents yet they say we all signed a 12 month tenancy agreement, and all application and guarantors forms all stipulated 12 months. To add insult to injury, they have threatened us with late fees for this outstanding rent?!
Following a meeting with a solicitor, it turns out the length of our contract is ‘variable’ on the agreement.



I’ve written to both the Property Obudsman and DPS about the situation since they have acted unprofessionally, by blatantly lying to us on a number of occasions.



None of us are in the position to pay this extra month’s rent, so our worry is now that they will not return our deposit.
My question is whether or not it is best to go through the DPS or bring them to small claims court?


This experience has left me quite angry at estate agents. We are all students are aren’t in a great financial position so we desperately need our deposit money back.


Many thanks for your help

may_fair

Please tell us:

Was the property in England/Wales?
What date did the fixed term commence (dd/mm/yy)?
What does the contract actually say about the length of the fixed term and its end date? Exact wording.
What date did you/everyone vacate?

G_M

As Mayfair says, unless you tell us what the tenancy agreement says it is hard to advise.

Having said that, even assuming the tenancy agreement was for 12 months, you could argue that the agents agreed to early surrender - you seem to have considerable evidence to support this argument.

So who owes who? Are they holding your deposit and if so is it more or less than the one months rent they are claiming? ie you are trying to reclaim your deposit from them?

Or was there no deposit or deposit repayed and they are trying to claim the 'outstanding' rent from you?

There used to be a saying "ownership is 9/10ths of the law" and there is some truth in this: the party trying to claim money is the one who has to bring a court/arbitration case, with all the hastle involved.
Or

xswitch

Sorry for the late response, I appreciate the help!
The property was in England
The fixed term commenced on the 04/08/2010
The exact wording is “For the term of One Year Less A Day”
We vacated the premises on the 04/07/2011 – exactly another months after signing the contract

The situation is that they claim we owe them another month’s rent. They have already sent several letters threatening legal action should we not pay, however we dispute the contract’s length.
The deposit money has not been returned and does indeed cover a month’s rent, hence why we are worried they will seek to deny us repayment.
The notion of a ‘early surrender’ sounds like a promising argument. Can anyone shed anymore light on the matter and how it can be best used in our defence?

BitterAndTwisted

One year less a day is not eleven months, although I don't understand that "less a day" bit. It looks like your rental-periods ran from the 4th of the month to the third of the month following. Therefore you should have surrendered the property on the 3rd of July if the landlord was willing to accept an early surrender. By not leaving until the 4th you entered into another rental-period so one more month's rent was due.

At least, that's how it looks to me. If you're intent on disputing the rent claimed I suggest that you dispute it via th deposit-scheme's arbitration process. From what I understand they often weight the evidence heavily in the tenants' favour. I think you're onto a loser but good luck in any case.

xswitch

Thanks for the hasty reply.

Aha! My mistake. They sent a copy of the contract and reading over it again, the commencment actually states the 5th August 2010.


I'm too a bit confused over the wording but by moving out on the 4th July, do you think we have a much better case of disputing this extra month's rent?

G_M

xswitch wrote: »

The fixed term commenced on the 05/08/2010
The exact wording is “For the term of One Year Less A Day”
We vacated the premises on the 04/07/2011 – exactly another(??) months after signing the contract

The normal Term would be one year, which from 5/8/10 would mean an end date of 4/8/11. My guess is that their 'one year less a day' is attempting to achieve this, though in reality a year less a day = 3/8/11 !

So you committed to a contract that ends on 4th (possibly 3rd!) August 2011.

...
The notion of a ‘early surrender’ sounds like a promising argument. Can anyone shed anymore light on the matter and how it can be best used in our defence?

'Early surrender' is where a tenant offers/asks to be released early from a contract, and the landlord agrees. It has to be a mutually agreed process. One side cannot end the contract early without the other agreeing.

Your claim that

to our knowledge that our tenancy period was set at 11 months.

appears from the contract you quote to be wrong. And since the emails you refer to were all prior to the contract being signed, they could not constitute agreement on early surrender (you cannot agree to surrender early a contract that does not yet exist!).

The only remaining argument you have is

...a letter from the Deposit Protection Service, all which confirmed this 11 month tenancy period.

When was the letter written? By/to who? Why? Saying what?

xswitch

We have emails dated before the signing of the contract and one dated after the 4th July 2011, after we had all moved out. I know emails can hardly be used as concrete evidence but surely the fact that they confirmed a 11 month tenancy after we moved out, only for them to flip-flop on the issue and send letters demanding a extra month's payment, defintely shows inconsistency!

The letter from the DPS was sent to us surely after moving into the house. It is addressed to all the tenants in the house and states that our deposit is protected by the DPS.

The fact that the DPS letter states that it is 11 months, must mean that either the landlord or estate agent, have agreed the tenancy length.

I''ve submitted my details to the DPS, explaining the situation but they have yet to get back to me.

may_fair

xswitch wrote: »

Following a meeting with a solicitor, it turns out the length of our contract is ‘variable’ on the agreement.

No, it's not. The term is one year less a day commencing 5th August 2010.

xswitch wrote: »

The property was in England
The fixed term commenced on the 05/08/2010
The exact wording is “For the term of One Year Less A Day”
We vacated the premises on the 04/07/2011

You are liable for rent up to 3rd August 2011. You will struggle to argue that the term agreed was 11 months, because you can't (plausibly) argue that a 'term of one year less a day' is a typo or something easily overlooked when you signed the contract.

Letters from the DPS are not strong evidence versus the evidence of the tenancy contract signed by the T.

The notion of a ‘early surrender’ sounds like a promising argument. Can anyone shed anymore light on the matter and how it can be best used in our defence?

A T may make an offer to surrender, and LL is free to accept or refuse the offer.

Sometimes this is done formally by Deed. Sometimes it's a case of interpreting the actions of both parties - if the actions of both are inconsistent with the tenancy continuing, then it's called a surrender by operation of law. However, only a court can decide whether there has been a surrender by operation of law or not, having looked at all the evidence. If, for example, the LL had re-let the property on 10th July, this would be good evidence that he'd accepted an offer to surrender on that date.

gunge

may_fair wrote: »

You will struggle to argue that the term agreed was 11 months, because you can't (plausibly) argue that a 'term of one year less a day' is a typo or something easily overlooked when you signed the contract.

I have read plenty of your posts and, knowing very little of contract law, I wouldnt want to suggest that you are wrong. However, I would be interested to know why you say this.

Surely the correspondence with the agent before, during and after the tenancy period would confirm that the intention of both parties was to execute an agreement with an 11 month period. The fact that it says 12 months does not reflect the true intentions of the contract and, despite the LL now trying to enforce what has turned out to be an error in his favour, I would have thought should not be binding.

G.

may_fair

gunge wrote: »

I have read plenty of your posts and, knowing very little of contract law, I wouldnt want to suggest that you are wrong. However, I would be interested to know why you say this.

Surely the correspondence with the agent before, during and after the tenancy period would confirm that the intention of both parties was to execute an agreement with an 11 month period. The fact that it says 12 months does not reflect the true intentions of the contract and, despite the LL not trying to enforce what has turned out to be an error in his favour, I would have thought should not be binding.

G.

I agree that OP has a basis to argue that the parties intended to create an 11 month term, but, if this ended up in court, the court would look at all the evidence. And only a court can say whether the contract was for 11 months or one year less a day (i.e. who's right/wrong). OP says:

xswitch wrote: »

It was to our knowledge that our tenancy period was set at 11 months. This is confirmed by several emails, phone calls and meetings with the estate agents prior to the signing of the contract, and a letter from the Deposit Protection Service, all which confirmed this 11 month tenancy period...

...We’ve explained the situation to the estate agents yet they say we all signed a 12 month tenancy agreement, and all application and guarantors forms all stipulated 12 months.

And the written/signed contract itself, which arguably evidences the final contract agreed, specifies "one year less a day"; so there is conflicting evidence as to the intentions of the parties. Nor do we know what the emails actually said.

IMO, OP would, I think, struggle to plausibly argue that he saw the phrase "one year less a day" in the contract when he signed it, and thought it meant 11 months. And, as there appear to be several joint tenants, they'd have to argue that they all failed to spot it or that it was typo, ambiguous, etc, which I doubt a court would accept.

OP also says that "Following a meeting with a solicitor, it turns out the length of our contract is ‘variable’ on the agreement." But it isn't; it's neither variable nor ambiguous (unless OP isn't telling us a crucial fact). This suggests that he perhaps didn't understand what he was signing up to, and I wonder whether it's possible OP also misunderstood the pre-contract negotiations - ?