Estate Agent mixed up move-in date for rental property

hazyjo

housebuyer143 said:

macman said:

richdeniro said:

macman said:

Did you agree in writing to end the tenancy on the 19th? If you did, then you would be in breach if you remain beyond that date. If you didn't, then simply say that circumstances have changed and you will be surrendering on the 28th as per the S21.
Entirely the fault of your LL for trying to advance the sale so far before actually having vacant possession. But, since she can't exchange without vacant possession, she simply has to reduce the gap between exchange and completion by 9 days, which should not be impossible.

Unfortunately we did - we sent the agent an email saying that we could move out on the 19th and that this date has been accepted by the landlord.  When we went back to them and told them about the mix-up the Estate Agent came back and said that we cannot now change the date and are putting the landlord into 'an incredibly uncomfortable and risky position'.

Saying 'you could' move out on the 19th is not formally surrendering the tenancy early. What was the exact wording used? If you said 'i agree to surrender early by vacating on the 19th', then that would be a different matter.

Is it though? What will the landlord do if the tenant who surrendered the tenancy doesn't go? They still can't throw them out on the street.

Charge them double rent, probably!

Gavin83

It sounds like you have served notice for the 19th. You can't just then change that without agreement of the landlord. Technically they can't throw you out on the street so you could stay put but they could sue you for double rent + any expenses they accrue due to your failure to vacate. If the sale falls through due to the delay (although I expect the week might not make much difference) then the costs could be reasonable.

I expect ultimately it would potentially be cheaper and less stress to stay in a hotel for a week.

What agreement do you have with the new landlord? If you've signed a contract to say you'll move in on the 19th they can't just change that. They'll be liable for any costs you incur. Of course suing your new landlord as you move in won't lead to a harmonious relationship going forward but that's the risk you'll need to consider.

macman

housebuyer143 said:

macman said:

richdeniro said:

macman said:

Did you agree in writing to end the tenancy on the 19th? If you did, then you would be in breach if you remain beyond that date. If you didn't, then simply say that circumstances have changed and you will be surrendering on the 28th as per the S21.
Entirely the fault of your LL for trying to advance the sale so far before actually having vacant possession. But, since she can't exchange without vacant possession, she simply has to reduce the gap between exchange and completion by 9 days, which should not be impossible.

Unfortunately we did - we sent the agent an email saying that we could move out on the 19th and that this date has been accepted by the landlord.  When we went back to them and told them about the mix-up the Estate Agent came back and said that we cannot now change the date and are putting the landlord into 'an incredibly uncomfortable and risky position'.

Saying 'you could' move out on the 19th is not formally surrendering the tenancy early. What was the exact wording used? If you said 'i agree to surrender early by vacating on the 19th', then that would be a different matter.

Is it though? What will the landlord do if the tenant who surrendered the tenancy doesn't go? They still can't throw them out on the street.

No they can't, but the LL could certainly sue them for any losses incurred, and double rent may apply.
Which is why it's better to establish if the tenancy has already been surrendered on the 19th or not.

saajan_12

**Disagree with several of the posts, subject to further info, it may cost you dearly to rely on them**

Re the current tenancy: 
The Section 21 notice is somewhat irrelevant, it doesn't end a tenancy anyway. The point is IF you've mutually agreed to terminate the tenancy on 19th June, and then breach that. The big question is whether your emails constitute a binding agreement - ultimately a judge will decide. [Note this is different to the usual case of a LL lining up a sale straight after their notice expires.. here its arguably an agreement to terminate. ]

If yes, then you could be liable for the LL's losses from their sale due to your breach. They still need to mitigate and prove their losses, which may be hard if say a sale falls through pre-exchange, but not impossible.. If they have exchanged, then their buyer could claim their own hotel costs etc, which could get expensive. 

Re the new tenancy: 
Where had you reached with signing the new AST? If it was signed, then you have a clear claim against them for damages if you can't move in for 10 days.  
If not signed, then you have a fight re whether anything they said verbally or in emails is binding on the start date. However in that case, you perhaps jumped the gun in giving dates on the old tenancy without the new one being binding.. what if the new LL pulled out entirely rather than the 10day delay?

propertyrental

As saajan_12 says above, more information is needed to establish the precise legal position regarding ennding the existing tenancy, and the LL deferring the new tenancy.

Exact wording of each side in relation to the agreement to leave on 19th please. And how? Phone? email?.....

Precise point reached in establishing new tenancy. Signitures? Yours? LL/agents?  Precise wording of any relevant emails/documents.

richdeniro

propertyrental said:

As saajan_12 says above, more information is needed to establish the precise legal position regarding ennding the existing tenancy, and the LL deferring the new tenancy.

Exact wording of each side in relation to the agreement to leave on 19th please. And how? Phone? email?.....

Precise point reached in establishing new tenancy. Signitures? Yours? LL/agents?  Precise wording of any relevant emails/documents.

Thank you!

Our tenancy agreement was for 6 months running from 19th November 2022 to 18th May 2023.

We received the Section 28 notice on 28th April by email. This stated that we would need to leave the property on 28th June (two months notice). It was signed electronically by the landlords agent. 

We then emailed the Estate Agent the following:
If we find a suitable property between now and 19 May then the notice period we have to give is 2 months and we can not move out any sooner? …But after 19 May the notice period we have to give is 1 month?

They replied with: 

The notice will be 2 months from today's date, so your last day of tenancy would be the 28th June 2023.

If you find a suitable property between now and 19th May, then technically your notice is 2 months and after 19th May it is 1 month. However, your landlord is prepared to release you from the tenancy earlier than the notice requirements if required.

My partner then emailed the following to the Estate Agent on 5th May:

We have just heard this afternoon that an offer we had pending on another rental property has been accepted. 

In light of our new rental property being agreed please can we advise that we will be moving out of XXX Road on 19 June 2023. Please do kindly start the process for this. I think our last rent payment will be due 19 May 2023 and I will stop the standing order thereafter.  Thank you very much for your efforts in trying to help us with our next move and for handling our tenancy at XXX Road. 

Agent replied on 9th May:

I am really pleased to hear that you have found a property that you are happy with and I have forwarded your email to the landlord for her information. We will be in touch again shortly with regard to end of tenancy procedure etc, but if you have any questions in the meantime, please do let me know.

Further email from the agent on the 9th May:

I am just doing some admin for your end of tenancy. You have put your last day of tenancy as 19th June, however, your rent period runs from the 19th of the month to the 18th, so if you wanted to give your notice in line with your rent period with your last rent payment due on 19th May, then your last day would need to be the 18th June. It is no problem for you to end your tenancy on the 19th, but this would mean an extra day's rent would be due.  Please can you confirm whether you wish to end your tenancy on the 18th? If so, this is a Sunday, so your check out would be first thing on the 19th, or whether you wish to extend by one day to the 19th, in which case I will issue a request for the additional day's rent?

On the 10th May we then went back and asked if we could stay until 20th June in order to have one day of crossover with the new property as we thought it might be easier to do the move over two days especially with a baby, this was the email:
Having discussed we wondered if we could actually make 20th June 2023 our last day of tenancy. This would give us a useful one day overlap with the new property which we take over on 19th June 2023. If this is ok then please let me know how best to pay for the 2 extra days of rent? Our notice was served to us on 28 April taking us to 28 June so hopefully the 20 June should be agreeable

The agent then replied with:
I am really sorry, but unfortunately it will not be possible for your end of tenancy date to be moved to the 20th as you counter served notice and the end date therefore changed.
We then received the news on 18th May that the other Estate agent had mixed up the available from date and we emailed the following including the correspondence from the agent stating the mix up:
We have just found out this afternoon that we have a serious problem. The agency for the property we are moving to has informed us that the advertised and agreed tenancy start date of 19 June 2023 was incorrect and that we can not move into the property until 28 June 2023. 

We are therefore going to be homeless for 10 days which with a newborn baby and unfortunately no family or friends we can stay with.  All we can do is ask if you would kindly ask her again on the basis of our situation and/or ask whether the buyer would allow us to rent it from him if the dates would fall after exchange. We would really appreciate any other advice or suggestions you might be able to offer us in this situation.

The agent replied with the following on the 19th May:

We have spoken with your landlord and she has advised as follows:

'Unfortunately, we cannot exchange on the property until you have vacated and so we are unable to come up with an arrangement where you rent the property from XXX until you can move into the other one, but this also means that the sale is in limbo until you have vacated, which puts XXX in an incredibly uncomfortable and risky position.'

With this in mind, it is unfortunately not an option for your tenancy to be extended beyond the 19th June and it is also not possible for you to rent the property from the new owner, I am so sorry.

That is where we are now, we have not replied to this email. 

saajan_12

My read of this part is an agreement to end the tenancy on 19th June. The subsequent discussion around 18th / 20th didn't come to a conclusion so there was no firm amendment of the prior agreement. However the only way you can know for sure is if you stay and it goes to court. If my read is correct, then I think they could charge you double rent for the time you stay beyond the 19th, or costs for your breach of the agreement. 

richdeniro said:

They replied with: 

...However, your landlord is prepared to release you from the tenancy earlier than the notice requirements if required.

My partner then emailed the following to the Estate Agent on 5th May:

We have just heard this afternoon that an offer we had pending on another rental property has been accepted. 

In light of our new rental property being agreed please can we advise that we will be moving out of XXX Road on 19 June 2023. Please do kindly start the process for this. I think our last rent payment will be due 19 May 2023 and I will stop the standing order thereafter.  Thank you very much for your efforts in trying to help us with our next move and for handling our tenancy at XXX Road. 

Agent replied on 9th May:

I am really pleased to hear that you have found a property that you are happy with and I have forwarded your email to the landlord for her information. We will be in touch again shortly with regard to end of tenancy procedure etc, but if you have any questions in the meantime, please do let me know.

. 

Part of the problem is jumping the gun with your current tenancy before having a signed contract (assuming that's true). However remains to be seen what exactly was discussed / agreed with the new place. 

richdeniro

I have read that a tenant’s notice isn’t valid when served during the fixed term.  We gave our counter notice on 9th May but the Fixed Term ends on the 19th May.

Would this make our counter notice invalid?

propertyrental

richdeniro said:

I have read that a tenant’s notice isn’t valid when served during the fixed term.  We gave our counter notice on 9th May but the Fixed Term ends on the 19th May.

Would this make our counter notice invalid?

No. You are right that notice during the fixed term is invalid if it attempts to end the tenancy during the fixed term. But in this case the expiry of the notice falls during the subsequent periodic tenancy so is valid.

However, reading the email exchanges, that seems irrelevant. The tenancy was agreed to be ended by mutual consent, not following valid tenant notice or valid application by the landlord to a court.

The contractually agreed date, by mutual consent, to end the tenancy, appears to have been the 18th May. Your subsequent request to defer to the 20th May was rejected, as was your later request to defer to 19th June. So the 18th May remains the mutually agreed tenancy end date.

For some potential implications of remaining beyond the tenancy end date, please read:

Distress For Rent Act 1737 S18 & Landlord and Tenant Act 1730 S1(Double rent if tenant stays after giving notice) plus explanation here

shelter.org.uk/ explanation of mesne profits /double rent.

Be aware that in addition the LL could sue for any financial losses he incurs as a result eg the cost of a lost property sale