Help with tenancy notice probem

pimento

My nephew rents a room in a shared house. His agreement is titled "Resident Landlord Excluded Tenancy Agreement." and the start date is 24 Nov 2016 and end date 29 Sept 2017.

The only reference to moving out states:
You will have the property and the furniture from midday 24 Nov 2016 until either we or you give the other written notice to end the tenancy. Two weeks notice is needed on our part to you.
If you give us 2 months notice that you are going to move out of the property but move out before the notice has ended, you must pay our reasonable costs for re-letting the property….

My nephew wrote to the landlord today (email) as said he wanted to move out on June 30th. The landlord replied...



Thank you for your email – we are sorry you have to move.
We apologise but due to prior plans we are not able to allow you to leave before your contract ends or the official contract assignment. Instead, there’s an option of sub-letting.
You can sub-let your room with the knowledge that you are ultimately fully responsible for the property during and until the end of your tenancy as per your current contract. This, however, should not cause any problems since you can take a damage deposit from the sub-letting tenant, just like we did from you (you will also need to register it with one of the schemes). Then it’s easy to resolve any discrepancies between the state of the house and the inventory or any other issues between you and your sub-letting tenant. We would prefer to continue dealing with you for the rest of the tenancy, however, the subletting tenant could write to us from this address to minimise any confusion. For emergencies, the sub-letting tenant should fill in the Tenants Information Form and email it to us. This should work well and we’ve had good experience with this option. There’s also no fee for sub-letting, which is another positive.
I am very sorry we cannot help you on this occasion in the way you suggest but very much hope that sub-letting could be a suitable alternative. We plan with the contracts in mind and our plans have been already made.
If you decide to terminate your contract anyway please see the clauses from your contract regarding this.

I would suggest to advertise on spareroom (bold advertising works better) immediately and get as many viewers straight away as possible. Please do not leave this for the last minute. I can email you pictures and little description. Thank you.

I believe that the best option in this situation is subletting because it’s free and beneficial for both parties. I hope you understand and do not hesitate to email me with any questions because I would prefer to discuss this matter in writing. Thank you and looking forward to hear from you.



Now, I don't think he has the correct agreement because the landlord does not live on site. I think it should be an HMO because there are six individuals living in the house with a room each (no locks) and a shared kitchen and bathroom(s). He hasn't had sight of the HMO Licence.

Does he have any wriggle room? The deposit is protected.

Guest101

pimento wrote: »

My nephew rents a room in a shared house. His agreement is titled "Resident Landlord Excluded Tenancy Agreement." and the start date is 24 Nov 2016 and end date 29 Sept 2017. - So it's a lodgers agreement, does the landlord live in the same building?

The only reference to moving out states:
You will have the property and the furniture from midday 24 Nov 2016 until either we or you give the other written notice to end the tenancy. Two weeks notice is needed on our part to you.- That's not true, the agreement ends on 29th Sept.
If you give us 2 months notice that you are going to move out of the property but move out before the notice has ended, you must pay our reasonable costs for re-letting the property…. - Ye, that's not going to happen. 2 weeks one way, 2 months the other. No court is going to deem that fair.

My nephew wrote to the landlord today (email) as said he wanted to move out on June 30th. The landlord replied... (so the LL doesn't live there?)



Thank you for your email – we are sorry you have to move.
We apologise but due to prior plans we are not able to allow you to leave before your contract ends or the official contract assignment. - They may be right.

Instead, there’s an option of sub-letting.
You can sub-let your room with the knowledge that you are ultimately fully responsible for the property during and until the end of your tenancy as per your current contract. - Correct. This, however, should not cause any problems since you can take a damage deposit from the sub-letting tenant, just like we did from you (you will also need to register it with one of the schemes). - excellent advice. Then it’s easy to resolve any discrepancies between the state of the house and the inventory or any other issues between you and your sub-letting tenant. We would prefer to continue dealing with you for the rest of the tenancy, however, the subletting tenant could write to us from this address to minimise any confusion.- seems reasonable. For emergencies, the sub-letting tenant should fill in the Tenants Information Form and email it to us. - not necessary. This should work well and we’ve had good experience with this option. There’s also no fee for sub-letting, which is another positive. - good
I am very sorry we cannot help you on this occasion in the way you suggest but very much hope that sub-letting could be a suitable alternative. We plan with the contracts in mind and our plans have been already made.- That's unfortunate. They should have contingencies, however very reasonable response
If you decide to terminate your contract anyway please see the clauses from your contract regarding this. - can you list the clauses?

I would suggest to advertise on spareroom (bold advertising works better) immediately and get as many viewers straight away as possible. Please do not leave this for the last minute. I can email you pictures and little description. Thank you. - excellent

I believe that the best option in this situation is subletting because it’s free and beneficial for both parties. I hope you understand and do not hesitate to email me with any questions because I would prefer to discuss this matter in writing. Thank you and looking forward to hear from you.



Now, I don't think he has the correct agreement because the landlord does not live on site. - indeed, I gathered that I think it should be an HMO because there are six individuals living in the house with a room each (that locks) and a shared kitchen and bathroom(s). He hasn't had sight of the HMO Licence. - he's not entitled to it.

Does he have any wriggle room? The deposit is protected.

Not really. What are the clauses?


Yes the agreement is the wrong one, and seeing as the LL is being nice I'd probably inform them of that.


But ultimately he is liable until 29th September (and longer if his subtenant, refuses to leave and refuses to pay)

pimento

Thanks. I thought that was the case. So does he have to pay until September or is it two months notice on his part?

pmlindyloo

They have used the wrong contract if the landlord does not live on the premises. Having said that I feel that it would be classed as an assured shorthold tenancy agreement as that is what your nephew have been renting as.

Certainly the notice required for leaving as in the contract would most likely be deemed as unfair. However, as it stands the contract reads as if two months' notice can be given by the tenant during the fixed term.

A bit of a mess.

Your nephew could contact Shelter and read/quote the terms of the contract and see what they say.

http://england.shelter.org.uk/get_advice/how_we_can_help/housing_advice_helpline

The HMO is a separate issue so you could also ask about that.

pimento

OK. My sister (his mother) is on the phone to Shelter as we speak. Many thanks.

pimento

Did a snip of the clauses but am on my work PC and can't upload the file to post it. IN a nutshell it says 'reasonable costs in re-letting and rent until a new tenant moves in (tenant, not lodger) or rent until the end of the notice period.

Guest101

pimento wrote: »

Thanks. I thought that was the case. So does he have to pay until September or is it two months notice on his part?

You need to right out the clauses in full to determine that

Guest101

pimento wrote: »

Did a snip of the clauses but am on my work PC and can't upload the file to post it. IN a nutshell it says 'reasonable costs in re-letting and rent until a new tenant moves in (tenant, not lodger) or rent until the end of the notice period.

Honestly take the 10 minutes, type it out, I know it's a hassle and then we'll know.

G_M

1. If he has exclusive use of his room (+ other parts of the property) and his LL does not live there, he has an AST.

2) the fact that the contract is labelled differently makes no difference.

3) the terms within the contract remain valid, except where they might conflict with the rights of a tenant provided by leglislation (Housing Acts, LL & Tenant Acts etc).

4) Both the contract, and the leglislation, require 2 months notice.

5. There is a contradiction in the contract. On the one hand it states an end date (29 Sept); on the other hand it allows for 2 months notice by the tenant. Where a conflict exists, courts usually interpret it in favour of the tenant (since the LL drew up the contract).

6. Either way, he has to give either 2 months notice, or stay till 29 Sept.

7. The property may require registering as an HMO. The Local Authority website should define the local requirements, and/or a call to them could confirm a) the requirements and b) whether the property is registered

8. Subletting is indeed an option - and the LL has been helpful here. However it has risks. Your nephew becomes a landlord, with LL responsibilities. He'd have to deal with any issues, including eviction of the sub tenant if he overstayed. Yes he could take a deposit but he'd have the hassle and admin of protecting it, and possibly dealing with deposit disputes if the sub tenant contested deductions. He'd also have to declare the rent as income to HMRC

For more on the implications of becoming a landlord, see

* New landlords: advice, information & links

saajan_12

Anomalies with the title of the contract aside, son has a fixed term AST until 29 Sept 2017, with a break clause requiring 2 months notice (or 'reasonable reletting costs'). Whether the unequal notice periods clause is unfair or not is irrelevant as the non resident LL would need to evict using a Section 21 notice giving 2 months anyway after activating their break clause and besides, ignoring the clause would mean your son is tied in to a fixed term. Now the options are
1) Activate break clause and pay 2 months rent from now until end July
2) Activate break clause and pay rent until son leaves, 30 June + LL’s reletting costs
3) Sublet room, as advised by LL. You are ultimately responsible for the rent and room until the latter of 29 Sept and end of notice period after subtenant vacates though you can offset this with rent income and a damages deposit from the subtenant.

pimento

Snip from contract. Hope this works.

https://www.dropbox.com/s/95ghjdomt0y3wkx/agreement%20clauses.JPG?dl=0