Joint tenancy implied surrender

hmovassagian

I'm writing as a tenant in a somewhat complicated situation:
1) Joint tenancy, ended a month ago by implied surrender before the fixed-term
2) No break clause, therefore had to find replacement tenants who pay less rent
3) Never signed any deed of surrender etc but everything was approved by agency and landlord and I handed the keys over to the new tenants myself
4) In our tenancy agreement we had agreed to paying the difference in rent until the end of fixed-term should the new tenancy be for a lesser rent
5) Agency/landlord are now refusing to return our deposit unless we pay that difference in rent
6) My co-tenant had vacated the property months before the end and was not planning to come back - it is however unclear whether agency/landlord are aware of this
7) His tenancy was supposed to be taken over by someone else but the landlord never approved the partial change of occupancy, even though agency had completed all referencing checks
8) I had a change of mind and decided to end the tenancy altogether - I informed him of this but not of the fact that the new tenants would be paying less
9) Agency/landlord never asked for his approval which would imply that the surrender was not effective

My questions:
1) Did co-tenant have a right to have a say in the surrender?
2) If yes, is the surrender therefore not effective?
3) If not effective, can our tenancy be reinstated even though the property has been re-let?
4) If this is not possible, can we still be charged for the difference in rent even though the surrender was not effective?

Note that co-tenant and I are not on good terms because of this whole situation.

SpiderLegs

Why are you trying to get out of paying?

AdrianC

What do you actually want out of this?
Do you WANT your tenancy to be reinstated?
Or are you simply trying to find a way to minimise the financial hit from leaving the tenancy early?

It is not at all unreasonable that you cover the landlord's shortfall in revenue from your decision to end the fixed-period tenancy early.

No, your tenancy is very unlikely to be reinstated, given that the property is not available.

You and your ex-flatmate need to come to an agreement between yourselves - you are both jointly and severally liable for all debts arising from the tenancy.

hmovassagian

SpiderLegs said:

Why are you trying to get out of paying?

Landlord not carrying out essential repairs

hmovassagian

AdrianC said:

What do you actually want out of this?
Do you WANT your tenancy to be reinstated?
Or are you simply trying to find a way to minimise the financial hit from leaving the tenancy early?

It is not at all unreasonable that you cover the landlord's shortfall in revenue from your decision to end the fixed-period tenancy early.

No, your tenancy is very unlikely to be reinstated, given that the property is not available.

You and your ex-flatmate need to come to an agreement between yourselves - you are both jointly and severally liable for all debts arising from the tenancy.

That's correct, I'm trying to minimise the financial hit.

AdrianC

The short answer is that the landlord agreed to your request to end the tenancy early - on consideration that you covered the shortfall in revenue.

You agreed to that by vacating and handing the keys over to your replacement.

If you do not pay, he can either take the debt from your deposit or launch a court claim - which you will lose.

SpiderLegs

hmovassagian said:

SpiderLegs said:

Why are you trying to get out of paying?

Landlord not carrying out essential repairs

That is ridiculous

greatcrested

hmovassagian said:

I'm writing as a tenant in a somewhat complicated situation:
1) Joint tenancy, ended a month ago by implied surrender before the fixed-term

Either the tenancy was surrendered or it was not. If not, the tenancy did not end.

2) No break clause, therefore had to find replacement tenants who pay less rent

Please quote the exact terms of the surrender agreement (whether written or verbal).

3) Never signed any deed of surrender etc but everything was approved by agency and landlord and I handed the keys over to the new tenants myself

'Approved' how? And what about your joint tenant? Was the joint tenant's agreement obtained? How?

4) In our tenancy agreement we had agreed to paying the difference in rent until the end of fixed-term should the new tenancy be for a lesser rent

Please quote the exact wording.

5) Agency/landlord are now refusing to return our deposit unless we pay that difference in rent

Assuming the tenancy was indeed ended (which seems unclear, since your joint tenant might be entitled to return should he wish), then the clause you refer to probably applies (please quote it).

6) My co-tenant had vacated the property months before the end and was not planning to come back - it is however unclear whether agency/landlord are aware of this

Your joint tenant would be within his rights to return. The tenancy does not appear to have ended.  Full rent is still due.

However, if the landlord has agreed a new tenancy, with new tenants, he may be guilty of an illegal eviction.

7) His tenancy was supposed to be taken over by someone else but the landlord never approved the partial change of occupancy, even though agency had completed all referencing checks

Then your joint tenant remians a joint tenant and the tenancy continues.

8) I had a change of mind and decided to end the tenancy altogether - I informed him of this but not of the fact that the new tenants would be paying less

Since this was a 'fixed term' tenancy, with no Break Clause, you could not 'decide to end the tenancy'. That would require the agreement of allparties ie the landlord and all joint tenants.

9) Agency/landlord never asked for his approval which would imply that the surrender was not effective
Correct.
My questions:
1) Did co-tenant have a right to have a say in the surrender? Of course.
2) If yes, is the surrender therefore not effective? Correct
3) If not effective, can our tenancy be reinstated even though the property has been re-let? You could bring an action against the landlord for illegal eviction.
4) If this is not possible, can we still be charged for the difference in rent even though the surrender was not effective?
I assume you have stopped paying rent? So if the tenancy continues (as argued above) you are in rent arrears)
Note that co-tenant and I are not on good terms because of this whole situation.

You appear to have two choices.

1a) claim illegal eviction, refer the matter to the council Private Tenancy Officer and/or Trading Standards and they might (or might not) bring a prosecution.

1b) bring a civil action for illegal eviction and seek a court order for the LL to return your access to the property.

1c) in both the above scenarios, your case would be strengthened by paying off any rent arrears. By continuing to pay the (full) rent you would be confirming that the tenancy was never surrendered.

However, by handing over the keys to the new tenants you have greatly reduced any claim of illegal eviction.

2) or take the view that a surrender was agreed (albeit not by the absent joint tenant who appears to have no interest either way). In this case you should pay the difference in rent that your tenancy agreement appears to require.

The repairing issues are entirely separate and irrelevant to this issue.

anselld

Your actions clearly indicate that you chose to surrender.
The agent seems entirely justified in retaining your deposit, especially given that you are now trying to wriggle out of paying the agreed surrender amount.

hmovassagian

greatcrested said:

You appear to have two choices.

1a) claim illegal eviction, refer the matter to the council Private Tenancy Officer and/or Trading Standards and they might (or might not) bring a prosecution.

1b) bring a civil action for illegal eviction and seek a court order for the LL to return your access to the property.

1c) in both the above scenarios, your case would be strengthened by paying off any rent arrears. By continuing to pay the (full) rent you would be confirming that the tenancy was never surrendered.

However, by handing over the keys to the new tenants you have greatly reduced any claim of illegal eviction.

2) or take the view that a surrender was agreed (albeit not by the absent joint tenant who appears to have no interest either way). In this case you should pay the difference in rent that your tenancy agreement appears to require.

The repairing issues are entirely separate and irrelevant to this issue.

Thanks for answering my questions! Since both of us are in new, separate tenancies now, it would be catastrophic for us if the old tenancy is reinstated and we had pay the full rent for the old flat as well. 

I had been willing to take the loss from the outset, i.e. giving up the deposit and paying the remainder. However, I have a dispute with my ex-flatmate now because he says it's unreasonable to lose his part of the deposit as well, which I disagree with. So he is considering to start legal action either against the landlord or against me to get his share of the deposit back. Apparently the agency is within their right to keep our deposit, and I'm not willing to transfer him any money either. I don't know whether he has a case considering the fact that he had vacated the flat (i.e. he was not forced out), but obviously he doesn't want the old tenancy reinstated either, unless he waits until he can get out of his new flat, whenever that is. This is the main issue here. I am perfectly happy if we lose our joint deposit and I pay the remainder, but not if I have to take the full loss.

The thing is, there is no written surrender agreement. I found the replacement tenants online, passed on their details to the agency, and a new tenancy agreement was made with the new tenants. At no point did the agency ask for the joint tenant's agreement.

This is why I am wondering about where we stand now legally. On the one hand we have the case that the surrender was technically not effective (which supports the fact that the tenancy is still running) but on the other hand the flat has been re-let (which contradicts the fact that the tenancy is still running, correct?)

I assume that the new tenants in our old flat cannot be simply evicted, can they?

AdrianC

hmovassagian said:

I had been willing to take the loss from the outset, i.e. giving up the deposit and paying the remainder. However, I have a dispute with my ex-flatmate now because he says it's unreasonable to lose his part of the deposit as well, which I disagree with. So he is considering to start legal action either against the landlord or against me to get his share of the deposit back. Apparently the agency is within their right to keep our deposit, and I'm not willing to transfer him any money either. I don't know whether he has a case considering the fact that he had vacated the flat (i.e. he was not forced out), but obviously he doesn't want the old tenancy reinstated either, unless he waits until he can get out of his new flat, whenever that is. This is the main issue here. I am perfectly happy if we lose our joint deposit and I pay the remainder, but not if I have to take the full loss.

The thing to remember is that you had a joint tenancy.

You are each jointly and severally liable for the entirety of the debt arising from that tenancy. It is up to you to sort it out among yourselves. Whether you pay or your ex-housemate pays is not the landlord's problem. It is your problem, the two of you. The landlord is due £X from you plural, jointly. Not £X/2 each from you singular, personally.