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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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we had a fixed term tenancy, we wanted to move 7 months earlier

Resolved Question:

we had a fixed term tenancy, we wanted to move 7 months earlier (we lived there 5.5 years), we told this to landlors over 2 months in advance. First he said: we move out, he redecorates on our expense and we pay till he finds someone, then he changed his mind and asked us to find someone. We have found several people, however, all wanted the flat for longer then 7 months, so the landlord increased the rent by 30% for the new period which is unreasonably high. We moved out, he redecorated the flat but asks us to pay for the redecoration period and the time until he finds someone new on a 30% increased rent. Moreover, he is not looking actively but asked us to find the tenant (advertise, etc..). We have found two people who submitted applications (we have this in writing). To one of them he sent a contract from now (i.e within our tenancy) for over 3.5 years where the increase applied already to the period of our tenancy i.e should be lower. So the candidates withdrew. Basically what he is trying to do is to use the time he has within our contract to renovate the place (done already) and then find someone for much higher rent (30%). He can wait even 7 months for the new person because he expect us to pay until the new person can move in.
Can he do this? If we stayed till the end of our tenancy then he would have to redecorate and look for new tenants in his own time (being unpaid the rent). With us he wants to be paid rent for the redecoration time, for the time to find someone new, and MOREOVER for much increased price. With the old price we have already found two people who wanted the flat. With the new 30% up price there is noone even interested to view the flat as the price is too high in my view. However he took the keys, he redecorated the flat and even issued a new contract to the new person (which failed as the rent he gave was too high) so are we still liable? Or we can assume that he took over the property. He seems to think we are liable until he finds somone to replace us (but with a higher rent).
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Are you able to evidence events as you describe them or is everything simply been done verbally to date please?

Customer:

we have e-mails

Customer:

when the new tennant sent application we have the copy of her application with all the details

Customer:

about the second application we have an e-mail from the new tenant who said that the landlord issued him a contract from now for 3.5 years where part of our tennancy period was included in the new contract with lower price and the rest on higher price, we have e-mail from the failed tennant confirming this

Customer:

so he issued a contract to a new person for a period of our tenancy. The contract was not signed as the new person did not agree to such high rent after the lower rent period

Joshua :

thank you. With your permission first of all I will set out the legal position and then move on to possible practical solutions. May I proceed?

Customer:

yes

Joshua :

If you wish to leave the tenancy, before the end of the fixed term subject as follows the starting point is that you cannot unilaterally leave during the fixed tenancy period as this amounts to a breach of contract. However it is possible to escape early from the tenancy by asking the landlord to remarket the same or finding satisfactory tenants to replace you on the tenancy. The landlord has a common law duty to mitigate his losses and costs and as such must do his best to remarket the property or must accept any replacement tenants that you find to replace you subject to satisfying standard referencing. You would be liable for reasonable marketing costs (if applicable) together with any reasonable agency fees for referencing new tenants etc. However your liability would end on the earlier of the end of your existing term or a new tenant being sourced to replace you both. The landlord cannot refuse to do anything at all or he will find that he is limited in the amount of continuing rent he can attempt to recover.


Joshua :

the landlord is not required or entitled to insist on granting the replacement tenants a new tenancy and he is not entitled to increase the rent or offer different terms other than by agreement between him and the new tenants. He is obligated subject as above, to allow the new tenants to take over your tenancy on the same terms and same rent for the remainder of the existing term or alternatively release you from the tenancy if you no longer wish to rent the property


Joshua :

if the landlord does not market the property unlike terms or unreasonably refuses to accept suitable tenants subject to adequate referencing, he is in breach of his common law obligations.

Joshua :

Based upon what you say, you have substantive evidence that the landlord has failed to offer the property on the market for like terms and that he has refused a number of interested tenants on the basis that he has sought to alter terms of your existing lease to his benefit.

Customer:

there is one problem here: noone wants to rent for 7 months, everyone wants to rent for longer. We had candidates to rent but they wanted the flat for longer. But he raised the rent by 30%. The new contract he issued to one of them (since he issued the contract he must have accepted him) was for 5 month the same rent as ours and then 30% higher. So there were 2 months from our tennancy which should had been lower which he already sharged higher rent. 30% is too high increase. He will not find anyone to pay this but he can wait

Customer:

We have advertised but he has not so far

Customer:

We can see the flat on Primelocation, Zoopla advertised by us, but I cannot find anywhere advertised by him, so he did not

Customer:

we refere interested candidates to him

Customer:

he references them

Customer:

there were two who went far

Customer:

one she submitted application but then she learnt the new rent and withdrew

Customer:

and the second person submitted, also got the new price, but still was thinking as he liked the flat

Joshua :

Are you finding there is no demand for rental for 7 months because of the higher rent or no demand for a 7 month let even at the existing rent?

Customer:

it is unfurnished flat so all people interested wanted for longer then 7 months

Customer:

our landlord will not accept corporate or comercial lettings only private people

Customer:

private people will not rent unfurnished flat for 7 months

Customer:

our contract is till the end of Agust 2016

Customer:

the contract he issued to the last person was

Customer:

old rent till beginning of July

Customer:

new rent from beginning of July for 3 years and two months

Customer:

why begininng of July?

Customer:

I don't know

Customer:

as a prove we have e-mail of this person

Customer:

we don't have the contract itself

Customer:

with this e-mail we have the prove that he was accepted as a tennant but he did not agree to this higher rent terms

Joshua :

as above, the landlord obligation is to offer the remainder of your tenancy on identical terms to any suitable tenant. He cannot be compelled to offer a longer tenancy period than that remaining on your tenancy nor alter terms. equally however, he cannot charge a higher rent than that you presently pay.

Joshua :

Are you still living in the property now? Is there 7 months left to run on your tenancy agreement?

Customer:

yes, but what is the practical solution? We acted in good faith: advertised, have been showing the flat before we moved out, found people interested etc... However

Customer:

a) poeple want to rent for longer

Customer:

b) he came up with 30% increased rent

Customer:

c) to the last candidate he sent a contract for only 5 months on our rent and then on new rent

Customer:

and he has not advertised yet and we moved out on the 7th of Feb

Customer:

soon we will reach Agust and noone will be found

Joshua :

Thanks. Is there 7 months remaining on your tenancy?

Customer:

Also technically he took over the property: we have no access and also he had people redecorating

Customer:

w have the tennancy till the end of Agust 2016

Customer:

I mean 2015

Customer:

now 5 months and a bit

Customer:

but we moved on the 7th of Feb and the person wanted to move on the 7th of March

Customer:

so he could have this rented from the 7th of March if not crazy prices

Customer:

so it was 7 months now it is closer to 5

Customer:

we told him we want to move in November and he has not advertised

Joshua :

Thanks. Final couple of points: You say "Also technically he took over the property: we have no access and also he had people redecorating". Have you moved out or been denied access?

Customer:

he told us he wants to redecorate before advertising

Customer:

No we have moved out and left the keys with his house-keeper (we have never saw the landlord in real life) only e-mails

Customer:

We told him in November we want to move out as soon as possible

Customer:

we wanted to advertise and find new tennant

Customer:

he wanted to redecorate first, so we advertised ourselves and have been passing candidates to him

Customer:

now we moved out, he redecorated, and did not even advertise

Joshua :

Thanks. Finally just to be clear you have evidence that two people were interested in the property but person 1) was sent a contract for 3.5 years with a higher rent for your period of tenancy and person 2) withdrew for what reason?

Customer:

we have e-mails if that can act as an evidence. One person was sent a contract from 7th of March till the 7th of July on our terms and from 7th of July 2015 till 31 Agust 2018 on new terms (30% increase) i.e he chatted on two months from 7th of July till the end of Agust. The person did not sign the contract as he decided the costs were too high

Customer:

the second person submitted application (we have it)

Customer:

the landlord asked for many things connected with finance

Customer:

she sent evidence of her income (which was very high)

Customer:

but he wanted evidence of her husband's income

Customer:

and in general he was not very pleasent

Customer:

one remark: he does not talk to me only to my husband as he does not deal with woman

Customer:

I have this in writing:

Customer:

when I sent him e-mails he replied that he will only talk to my husband

Customer:

that person was a woman and he was very difficult. So at the end she found another place. She e-mailed me that the landlord is asking for excessive ammount of financial evidence and she is going with a diffrent flat

Customer:

Her sallary was twice mine so I don't think there was a problem really there

Joshua :

thank you. Based upon what you say, you would appear to have clear evidence that the landlord is in breach of his common law obligations over an extended period. In addition, from what you say, the landlord is charging you rent but at the same time has entered the property without your permission with contractors to carry out renovations. This amounts to a breach of contract in itself.

Customer:

well, we did not technically object to him renovating. We moved out before this happened and left the keys. We know this has been renovated beacuse he e-mailed us and also this interested tennant who saw the place told us

Joshua :

On this basis, you can consider contacting the landlord advising him that you have requested that you are able to vacate the property earlier than your minimum term and that he markets the property on your behalf. As he will be aware, he is required under common law to mitigate his losses and market the remainder of your tenancy unlike terms and must accept any tenant subject to satisfactory referencing. You can refer to evidence above of his failure over the relevant period to do either of these things and accordingly, you requires confirmation that the tenancy is now at an end with immediate effect failing which you will consider making an application to the court for an order that the tenancy is terminated as he has had reasonable opportunity to source a new tenant has failed to avail himself of that opportunity. In addition, you consider that he is in breach of contract by unlawfully entering the property to carry out renovations without your consent which is also a criminal offence under the protection against eviction act

Joshua :

if necessary, you can apply for the above order using the following form:

Joshua :

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=424

Joshua :

in addition, do consider checking to ensure that your deposit is protected using an approved deposit scheme - links as above. If he has failed to protect your deposit you may claim back your deposit as well as up to 3 times the amount in compensation.

Joshua :

Is there anything above I can clarify for you?

Customer:

all we have are e-mails of course, is this an evidence?

Customer:

he has protected the deposit - we have the certificate but he did not sign that certificate: the signature is missing. Does it matter?

Joshua :

Yes absolutely. Emails are very good evidence because the are contemprary and can be dated

Customer:

we have never meet and we have exchanged contracts via e-mails

Joshua :

providing he protected the deposit in one of the above schemes that is satisfactory and the missing signature will not be pertinent.

Customer:

so we should be paying the rent or we should assume he breached the contract and stop paying rent?

Joshua :

My view would be that on the basis of the above evidence as you describe it you can treat him as being in breach of contract and breach of his common law obligations and seek an order for determination of the tenancy as above. Strictly, rents should be paid until such time as the tenancy is determined either by the landlord agreeing or by an order of the court.

Customer:

also there is the council tax issue: we called council to say that we moved out on the 7th of Feb and closed the account. He sent the council a letter saying that we are liable to pay council tax till the end of Agust and the council reverted this back to us. I called again saying we moved out and the council says that they are not entering disputes and since the lanlord sent a letter saying he has the contract with us till the end of Agust we are the ones liable even if we moved out and he is the owner

Joshua :

you will be liable for council tax until such time as the court determines your tenancy or you agree with the landlord of the tenancy is determined. As a tenant, albeit an unwilling one, you are liable for council tax payments though depending upon the decision of the court, if you decide to go to court, it may be that they wwill backdate the determination of tenancy in which case you would be able to claim back any council tax for that period which you may have paid

Customer:

so which argument is important if we want a court order to end the tennancy? That he has not advertised so far? That he moved in to renovate? That we found two tennants but with the new price they widthdrew?

Customer:

He can argue that we could of rented for the 7 months only

Customer:

but with unfurnished flat, and with no commercial, corporate lettings, finding someone for 7 months is not reasonable

Joshua :

the most important evidence is his failure to advertise and his refusal to accept two suitable and willing tenants by imposing unlawful or unreasonable conditions upon their potential tenancies. Of less importance but still significance is his further unlawful entry to the property which amounts to a breach of contract and an offence under the protection against eviction act if you have not given permission for such access

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Customer:

last question: of course going to court is a lot of hassle. So it is important to establish what is the best cause. If we stop paying rent he would have to take us to court. Right? With the same arguments as above will we be in a worst position. I.e lets say we stop paying rent and after a few months he takes us to court for unpaid rent: can we then use exaclty the same arguments what you gave me or now they will not work as we also breached the contract by not paying rent?

Customer:

It would be eaiser of course to stop paying rent but have enough evidence then when/if taken to court we have arguments in our hands that we did a lot to help to find a new person and he didn't even advertise from November etc.. The council tax we will have to pay in this case but it is a lot less then the rent of course.

Joshua :

I understand your concern with regards ***** ***** a court application however it is likely to be your best approach if you are unable to resolve the matter with the landlord directly which seems likely to be the case and the cost is not overly burdensome and of course you can seek to recover costs from the landlord if you are successful. having said that, if you simply stop paying rent, this is certainly an approach you could consider however the likely consequence will be landlord seeks to recover unpaid rent from you in the Small Claims Court. a judge would typically be less sympathetic to your position if you simply stop paying rent then if you proactively apply for an order from the court as above and so such an approach is likely to damage your position though not necessarily fatally.

Joshua :

If your preference in light of the above is still to simply stop paying rent, in order to limit the damage to your position, you would do well to ensure that the nnotify in writing to the landlord your intention and detailed reasons as above as to why you are doing so asking him to respond within 10 days if he disputes your position. If he does subsequently pursue you, at least you can present such correspondence in court to demonstrate that you did not simply stop paying rent without any prior warning for that reason

Joshua :

also remember as you touch them yourself, such an approach would not assist you with avoiding council tax and the council would likely separately pursue you for any unpaid tax

Joshua :

Have I been able to help you with all your questions on the above?

Customer:

so the argument that we told him in November and he still has not advertised seems the strongest one in the light what you are saying, as with others he can easly argue that all candidates wanted a longer term, beyound our 7 months, and he can then quote even unreaonable rents if he wanted.

Customer:

Also, my husband is fed up with the situation and very busy at work, I am fully included in the tennancy

Customer:

but the landlord refuses to talk to me

Customer:

can he do this?

Joshua :

I would place the strength of arguments as 1. failure to advertise 2. rejecting tenants and 3. unlawful entry.

Joshua :

He must deal with either you or your husband if you are both tenants.

Customer:

he wants only with my husband

Customer:

is there anything I can do that he deals with me

Customer:

as my husband is fed up and not willing any more

Customer:

by law

Customer:

does he has to talk/e-mail me

Customer:

if I sent him an inquiry he replies saying he wants to communicate with my husband only

Joshua :

You have a contract with him and as such he either must engage with you or he harms his position in failing to respond to you as a tenant. A court will expect parties to attempt to resolve disputes without recourse to court and can take failure or refusal to do so into account when considering judgement

Joshua :

Has the above answered your questions satisfactorily?

Customer:

thanks

Customer:

yes

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Customer:

yes, I was about to rate but my husband called and reminded about one small point:

Customer:

at the moment when we were moving out the heating broke

Customer:

there was no heating in January for about a month

Customer:

when we were moivng out there was no heating

Customer:

we have evidence as he issued e-mail to all tennants

Customer:

the heatign broke seriosuly and it was 16 for about a month

Customer:

we have two kids: one 3.5 and one 4 month old at the time

Customer:

it was not possible to stay there

Customer:

I was at my parents's with kids

Customer:

can we use this somehow

Customer:

I didn't say as I think this was less important but he was not doing any maitance in the flat at all

Customer:

we bought new shower, new fridge, new dishwasher, repaired toilet 2 times, he wanted just to maximise on pofit i.e there was no service what so ever, we complained but he always ended up giving us a plumber phone number and expected to pay

Customer:

we stayed beacause we liked the location and bought furnuture specifcally for this flat so to move there was a lot of hassle but he did nothing over 5.5 years

Customer:

and in January the heating was off for arround a month

Customer:

again, we have his e-mail about dealing with the situation as evidence

Joshua :

the problem. This does not affect your rights as we have discussed above. However, if you can demonstrate the above, you can also seek a reduction in your rents for the period in question up to the point being heating was fixed for loss of amenity in the property. It would be limited to a claim of any order of 25% or so of the rent for the period in question.

Customer:

thanks

Joshua :

A pleasure. dear revert to me if I can assist further.

Joshua :

I should be very grateful if you would kindly take a moment to rate my service to you above.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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