What can she do?
Discussion
My daughter is having problems with a tenancy agreement which is going to cost her a fortune.
This is way outside my area of expertise so any help would be appreciated very much.
Topline is she and her partner want to set up home together and have founda place that they want to move to
She has found a good replacement for her part of the tenancy agreement who can move in straight away with no interruption in rental. She has also offered to pay any agency fees the landlord may be charged for affecting the change on tenancy.
However,the agent is insisting she cannot move and,if she attempts to,she is liable to pay the monies due to the end of the agreement which is November 2010. This will amount to several thousand pounds.
The agent has been exceptioanally unhelpfull,agressive and has reneged on several aspects of the contract-e.g. the flat had no hot water for two weeks,was found on occupation to be infested with vermin and had to be fumagated,the flat was dirty with rubbish both inside the flat and outside in the corridor and furniture was broken.They have refused her any compensation for these problems which took a long time to resolve.
I am in favour of her abandoning the property on the basis that any liability under the agreement would be limited as her replacement will be paying rent on her vacating the flat.
Can anyone offer her any advice?
This is way outside my area of expertise so any help would be appreciated very much.
Topline is she and her partner want to set up home together and have founda place that they want to move to
She has found a good replacement for her part of the tenancy agreement who can move in straight away with no interruption in rental. She has also offered to pay any agency fees the landlord may be charged for affecting the change on tenancy.
However,the agent is insisting she cannot move and,if she attempts to,she is liable to pay the monies due to the end of the agreement which is November 2010. This will amount to several thousand pounds.
The agent has been exceptioanally unhelpfull,agressive and has reneged on several aspects of the contract-e.g. the flat had no hot water for two weeks,was found on occupation to be infested with vermin and had to be fumagated,the flat was dirty with rubbish both inside the flat and outside in the corridor and furniture was broken.They have refused her any compensation for these problems which took a long time to resolve.
I am in favour of her abandoning the property on the basis that any liability under the agreement would be limited as her replacement will be paying rent on her vacating the flat.
Can anyone offer her any advice?
Tenancy agreements are a darned sight harder to get out of than they are to sign up to.
The upshot is she signed a tenancy until November, so has to pay the rent until November.
It is, of course, the landlords problem to get the issues solved, but this isn't a reason to be able to wriggle out of the agreement as long as the required work has been carried out.
I agree that it's a bit mean to not agree to transferring the tenancy, but they are under no obligation to do this for you.
Sorry, but I think you're stuck with this one.
The upshot is she signed a tenancy until November, so has to pay the rent until November.
It is, of course, the landlords problem to get the issues solved, but this isn't a reason to be able to wriggle out of the agreement as long as the required work has been carried out.
I agree that it's a bit mean to not agree to transferring the tenancy, but they are under no obligation to do this for you.
Sorry, but I think you're stuck with this one.
It's not her position to find a replacement tenant, the agency will have to do that and carry out the various referencing checks etc, so they're probably not happy about that for a start.
She might have some more luck if she gets her "good" replacement to sign up as an applicant with the letting agency and take it from there.
She might have some more luck if she gets her "good" replacement to sign up as an applicant with the letting agency and take it from there.
If she leaves, then it will be the landlord's responsibility to mitigate their losses before pursuing your daughter for the shortfall against the rental agreement period.
They must also attempt to do this at the same level of rent as your daughter is paying, they cannot simply up the rent and then claim against your daughter.
Your daughter has mitigated the Landlord's potential losses fully by finding a replacement tenant.
I know this from first hand experience, the case saw court, the court found in my favour the only difference in my case was that our Landlord was hilarious, we didn't bother finding a replacement tenant and just moved out. The Landlord did nothing to find a tenant at the same level and actively upped the rent.
In court our barrister pushed the Landlord on this point and she said 'if they wanted to pay less rent, they should live in Slough with the coloureds' before feigning a seizure and collapsing on the floor screaming.
It remains to be one of the most amusing scenes I have ever witnessed.
Play hardball with them, it's an absurd position to look a gift horse in the mouth.
ETA: Also no hot water for two weeks could be construed as breach of implied right of quiet enjoyment.
They must also attempt to do this at the same level of rent as your daughter is paying, they cannot simply up the rent and then claim against your daughter.
Your daughter has mitigated the Landlord's potential losses fully by finding a replacement tenant.
I know this from first hand experience, the case saw court, the court found in my favour the only difference in my case was that our Landlord was hilarious, we didn't bother finding a replacement tenant and just moved out. The Landlord did nothing to find a tenant at the same level and actively upped the rent.
In court our barrister pushed the Landlord on this point and she said 'if they wanted to pay less rent, they should live in Slough with the coloureds' before feigning a seizure and collapsing on the floor screaming.
It remains to be one of the most amusing scenes I have ever witnessed.
Play hardball with them, it's an absurd position to look a gift horse in the mouth.
ETA: Also no hot water for two weeks could be construed as breach of implied right of quiet enjoyment.
Edited by Plotloss on Friday 19th March 18:05
Thank you for the very helpfull replies.
I would also think that as she had made every attempt to avoid losses or any form of cost to the landlord she can argue she has discharged her responsibilities.
The irony is if she abandons the property the law does support the landlord as you might expect however her costs re rental are incurred up to the point where a replacement is found.
As she already has one waiting in the wings it could be argued that cost would be zero.
Plotloss,wonderful court report,it made her smile.
Thank you for that also ( She was terrified! )
I would also think that as she had made every attempt to avoid losses or any form of cost to the landlord she can argue she has discharged her responsibilities.
The irony is if she abandons the property the law does support the landlord as you might expect however her costs re rental are incurred up to the point where a replacement is found.
As she already has one waiting in the wings it could be argued that cost would be zero.
Plotloss,wonderful court report,it made her smile.
Thank you for that also ( She was terrified! )
Edited by sidewayz on Friday 19th March 19:34
rich1231 said:
As a Landlord. I'd accept your tenant assuming they passed the various checks agents pretend to do.
Usefull, many thanks rich1231.The replacements are professional people with higher incomes than my daughter looking for a long term rental. I can see no reason to reject them.
If your daughter has signed a Tenancy Agreement for a fixed term, with that fixed term ending in November 2010, and if within the Agreement there are no early termination rights, then the landlord/letting agents can hold your daughter liable for the rental payments up to the end of the Tenancy Agreement, November.
Fixed term Tenancy Agreements are there to protect both the tenants and the landlord, binding not just the landlord to the Agreement, but also the tenant. So for the OP’s daughter to simply abandon the premises/tenancy would be extremely foolhardy and costly.
However, as a landlord I have had tenants who have sort an early release from their Tenancy Agreement, mainly through changes in their circumstances, relationship breakdown, made redundant or employment transferred etc. etc. In all such cases I have always attempted to work with the sitting tenant, and I can honestly say I have always found alternative tenant/s to take up a Tenancy, thereby incurring no losses for either the departing tenant or myself.
In the OP’s daughter’s situation I believe both your daughter needs to negotiate an early closure/end to the Tenancy Agreement, and to seek to mitigate the landlords/letting agents losses, by either financial compensation and/or seeking out an alternative tenant to take on the Tenancy Agreement.
Whilst the landlord/letting agents must be seen to be seeking to mitigate their losses, seeking a replacement tenant, there is a proviso that any tenant found, by either the OP’s daughter or landlord/letting agent, that replacement tenant must be to the “liking” of the landlord/letting agent.
If any breach of the Tenancy Agreement went to Court, then I am certain the Court would want to see an attempt by the landlord/letting agent to mitigate their losses, so with that in mind the OP’s daughter and the prospective tenant need to communicate with the agents in writing, preferably by e-mail.
Fixed term Tenancy Agreements are there to protect both the tenants and the landlord, binding not just the landlord to the Agreement, but also the tenant. So for the OP’s daughter to simply abandon the premises/tenancy would be extremely foolhardy and costly.
However, as a landlord I have had tenants who have sort an early release from their Tenancy Agreement, mainly through changes in their circumstances, relationship breakdown, made redundant or employment transferred etc. etc. In all such cases I have always attempted to work with the sitting tenant, and I can honestly say I have always found alternative tenant/s to take up a Tenancy, thereby incurring no losses for either the departing tenant or myself.
In the OP’s daughter’s situation I believe both your daughter needs to negotiate an early closure/end to the Tenancy Agreement, and to seek to mitigate the landlords/letting agents losses, by either financial compensation and/or seeking out an alternative tenant to take on the Tenancy Agreement.
Whilst the landlord/letting agents must be seen to be seeking to mitigate their losses, seeking a replacement tenant, there is a proviso that any tenant found, by either the OP’s daughter or landlord/letting agent, that replacement tenant must be to the “liking” of the landlord/letting agent.
If any breach of the Tenancy Agreement went to Court, then I am certain the Court would want to see an attempt by the landlord/letting agent to mitigate their losses, so with that in mind the OP’s daughter and the prospective tenant need to communicate with the agents in writing, preferably by e-mail.
Thank you Wings, I appreciate the detail. You sound like a very reasonable landlord and I appreciate hearing your perspective. My daughter has tried to act as a reasonable tenant.
Where the situation is a little different in that the agency are asking for full settlement of the remaining term up to the break clause and intend to re-let immediately, thereby increasing their income for the period.
They are also arguing that this period should be calculated at the new rental that will apply after my daughter vacates plus a 10% charge on top of that.
My understanding, which is growing all the time, is that the landlord may not reasonably refuse a tenant application that my daughter has found.
Additionally, they may not seek gain from the arrangement, only mitigation of potential loses.
In the last resort I can play hardball - however I believe the landlord is being badly advised by the agency employed who are seeking to profit by the situation
I am prepared to advise her to walk away and then we go to court-the responsibilities of the private landlord are currently onerous - the recent ruling Reichman & Anor v Beveridge & Anor [2006] EWCA Civ 1659 the Court of Appeal which found the landlord did not have a duty to mitigate costs has yet to be tried on private fixed tenancy with a break clause, and in any case only applies to recovery for rents unpaid.
It's all getting very stupid when you consider all the poor girl wants to do is set up shop with her partner and had bent over backwards to ensure the landlord was not effected in any way
It is not always about the letter of the law/agreements, more often about how we interact between tenants, landlords, letting agents etc., and often the right approach by a party can resolve an issue without the need for solicitors, courts etc.
Your understanding is correct, the landlord should not seek to make any gain out of the situation, and should also be seen to be attempting to mitigate any possible losses. I believe to support your daughter’s case, your daughter needs to put the issue in writing to either the landlord/letting agents, possibly e-mail, and in a layperson’s language, in the hope that either the landlord/letting agent in their reply set out their draconian demands.
Do you know if your daughter paid a Deposit against the ASAT, and if so was the Deposit registered and which scheme was the Deposit registered with.
Your understanding is correct, the landlord should not seek to make any gain out of the situation, and should also be seen to be attempting to mitigate any possible losses. I believe to support your daughter’s case, your daughter needs to put the issue in writing to either the landlord/letting agents, possibly e-mail, and in a layperson’s language, in the hope that either the landlord/letting agent in their reply set out their draconian demands.
Do you know if your daughter paid a Deposit against the ASAT, and if so was the Deposit registered and which scheme was the Deposit registered with.
Wings said:
It is not always about the letter of the law/agreements, more often about how we interact between tenants, landlords, letting agents etc., and often the right approach by a party can resolve an issue without the need for solicitors, courts etc.
Completely agree. It is my preference to negotiate a sensible conclusion.Wings said:
Do you know if your daughter paid a Deposit against the ASAT, and if so was the Deposit registered and which scheme was the Deposit registered with.
She did,the detail is ( XXX marks the agency to avoid Name and Shame)5.2. A leaflet explaining how the Deposit is protected by the Housing Act 2004 will be provided to the Tenant by the person holding the Deposit being XXXXXXXXXX.
5.3 XXXXXXXXX will register the Deposit with and provide other required information to the Tenancy Deposit Scheme within 14 days of the commencement of the Tenancy and provide proof to the Tenant of compliance. If XXXXXXXXXXX fails to provide proof within 14 days the tenant should take independent legal advice from a solicitor, Citizens Advice Bureau (CAB) or other housing advisory service.
5.4 The procedure for instigating a dispute regarding deductions from the Deposit at the end of the Tenancy is explained in theAppendix to this Tenancy Agreement shown below. No deductions can be made from the Deposit without written consent from both parties to the Tenancy Agreement.
5.5 All interest earned will belong to XXXXXXXXXXX.
Edited by sidewayz on Sunday 21st March 00:07
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