Can tenancy agreement override law?

Elle7

This may be a really stupid question, but I'm beyond sick and I can't think straight.

To try and keep it simple;

Agent offered surrender. We took it. No deed, but did return keys with a letter explaining surrender date etc. Landlord replied by email, thanking us, and accepted the keys. All fine, or so I thought.

Agent is now saying that a clause in the contract overrides our right to surrender. The clause says that should we leave early, we remain liable for the rent until a new tenant is found.

They are now going to chase us for rent. I believe that in that case, they should have left the keys with us, or we could make an argument for illegal eviction.

Anyway, can anyone confirm that the tenancy agreement must comply with the law, and cannot override our surrender? It was a surrender by law, rather than by deed, but it was all by the book.

jamie11

Leaving the agent out of it for a minute.

How can you prove the landlord accepted your surrender? You say there was no deed of surrender, that's the normal way if you don't want to be caught up in this situation.

It is normal for a tenant that leaves during the agreement period to pay the loss's of the landlord otherwise.

In answer to your question though, it's yes, statute will always trump an unfair agreement/clause. Unfortunately this clause is fairly standard in all AST agreements.

The landlord however [STRIKE]must[/STRIKE] should make efforts to mitigate his loss.

rpc

What do you mean when you say that the agent offered the surrender? Did they initiate this and not you? What terms did the agent offer and do you have that in writing?

Do you really mean surrender by law - that is derived from estoppel and occurs when actions indicate the end of a tenancy without explicit agreement. What you are more likely doing is mutually agreeing to terminate the contract.

If you did surrender by law, what action led to the tenancy not being reasonable to continue? Surrender by operation of law is a bit of a shady area and I would not want to rely on it if possible.

Unless you have something in writing saying no rent is due after the surrender, you have a hard argument ahead of you. In the absence of that term, the agent will rely on that clause in your contract as being part of the surrender agreement. With no deed of surrender, you don't have a proper record and may struggle to prove anything.

You need to review all your documentation an agreement that the surrender would happen with no liability after the surrender date is what you are after. That would trump the earlier clause in the tenancy. If all you have is "We want to leave on X date as discussed. Please arrange checkout and here are the keys" then you are likely to lose.

Elle7

The agent called us to offer a surrender. Left an answerphone message offering it, and told us to call back within 2 hours to accept, so that the new tenants could move in that weekend.

The surrender was offered in lieu of compensation for an incident that occurred, and the maintenance caused by that incident. The landlord admitted responsibility for the incident, and got workmen to quote for the work, but didn't want to pay it. As such, the property was unsecured. It was agreed that the surrender would be in lieu of any compensation being paid to us for us needing to find alternate accommodation and storage while the house wasn't secured.

We left the rent in the rent account to be collected, as advised, but the landlord/agent did not claim it. They are now trying to claim it.

Sorry that it's so complex. I'm really ill, too, so my head is like a bag of sand.

RAS

So you have NOTHING in writing regarding the surrender?

BitterAndTwisted

"Landlord replied by email, thanking us, and accepted the keys."

"Left an answerphone message offering it (surrender) , and told us to call back within 2 hours to accept, so that the new tenants could move in that weekend."

So, the landlord acknowledged receipt of the keys and the property has since been re-let. Is that right? If that is the case, the only rent you owe is for the period between you having left and when the new tenants moved in if the rent was fully paid up until the day you left.

princeofpounds

What is the exact wording of that clause?

I suspect it will not be enforceable. For instance, you did not leave early, you left on the agreed date. It just happened not to be the original date in the contract.

If I were you, I would speak to the LL. Simply ask if they are aware that the LA was trying to charge you and if this is at their instigation (because the LA can't do that, only the LL can ultimately). Don't make a big argument of your position, save that for later.

rpc

So if new tenants moved in within 7 days, how much extra rent are you being asked to pay?

I am amazed that a LA would offer something in exchange for a promise of no action and not commit this to paper! If they come after you for rent, do you have costs that you can claim against them for?

"Dear Muppet LA,

I understood that in exchange for agreeing not to sue your pants off, we were to be released from our contract on X date with no rent liability after that date.

If you wish to enforce the contractual clause claiming rent, then we will enforce our right to claim accommodation and storage costs from you. Please send me all your money and the shirt off your back."

Don't send this or anything like it, but a discussion along those lines (it was a trade of rent liability for storage/accommodation liability) might put the LA back in their place. The agent cannot give with one hand while taking away with the other. If common sense does not prevail, estoppel is probably your shield (as it is theirs if you chose to sue for your costs).

Werdnal

If the landlord has accepted your surrender and you have written email proof of this, the LA doesn't have a leg to stand on. The overall responsibility for the tenancy rests with the LL - their acceptance of your keys and the surrender means the tenancy ended at that point and LA is whistling in the wind for any more rent other than what was agreed at the point of surrender (if anything).

rpc

Werdnal wrote: »

If the landlord has accepted your surrender and you have written email proof of this, the LA doesn't have a leg to stand on. The overall responsibility for the tenancy rests with the LL - their acceptance of your keys and the surrender means the tenancy ended at that point and LA is whistling in the wind for any more rent other than what was agreed at the point of surrender (if anything).

The sticking point for the OP is that the acceptance was done by email, the LA's surrender offer done by phone. The only thing in writing is the letter for OP saying "here are the keys". To prove surrender by operation of law, they need evidence of an unconditional acceptance by the LL.

Elle7

The letter stated that we were surrendering the property as agreed with the landlord and agent, and referencing the return of the keys.

The email response thanks us for the letter, and asks for us to commence end-of-tenancy cleaning ASAP so that the house can be relet.

The tenancy agreement clause is as follows;

"If the tenant vacates the property prior to the end of the Term, the tenant will remain liable to pay rent until the term expires or the property is re-let, whichever is earlier. Should the property be re-let during the term, the tenant will also be responsible for the repayment of any pro-rata commission fees that have been or will be incurred by the landlord for the unexpired period of the term. If the new tenancy is for a lesser rent, an amount equal to the difference between the original rent and the new lower rental figure up to the end of the term will be due. The teant is also responsible for any reasonable costs (ie telephone lines, satellite television, television licenses, cleaning, admin fees) incurred from that point until the end of the term. For the avoidance of doubt this clause shall not take effect where the tenant is operating a break clause contained in this agreement"

It doesn't appear that the landlord or agent has disputed the surrender, just that we still owe rent because of the above clause. I believe that because the tenancy has ended through a mutual surrender (landlord accepted keys, conducted check-out inventory, conducted viewings without notice to us, didn't claim the rent DD from that date, didn't contact us at any point regarding any due monies) that clause is invalid. It contracts over and above the law, in my opinion.

But it seems that I'll have to take them to small claims to recover the rent. It's about £800.

If anyone can help clear this up in my head, I'd really appreciate it.