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propertylawyer
propertylawyer, Solicitor
Category: Law
Satisfied Customers: 280
Experience:  Property Solicitor with expertise in commercial and residential property transactions.
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I recently entered into a 1 yr fixed term tenancy agreement,

Customer Question

I recently entered into a 1 yr fixed term tenancy agreement, as a tenant, with Foxtons. The landlord is a Chinese based in China. This contract has no break clause.
Prior to the viewing, I had filled in a tenancy requirement form in which I clearly stated I needed a quiet place. The viewing took place during daytime.
After I moved into the flat (02/07/2016), I realised the traffic noise is unbearable, especially at night. Immediately this poses a major issue for me. Im a light sleeper and also suffer from tinnitus, for which I have hospital evidence going back one year.
To make matters worse on the following day, the smoke alarm triggered off and I was unable to switch it off. I tried getting in touch with Foxtons and the landlord, but it being a Sunday, to no avail. This was finally sorted on Tuesday evening, meaning I spent those nights at a friend’s place.
I asked Foxtons i I could terminate my contract. They say I have to pay an 11% commission for the reminder of the contract tenure, pay rent for the period the flat is unoccupied and if the rent is o a lesser value, then I have pay the difference thereafter plus the usual charges of vacating a property such as inventory checks, etc.
In return I offered to pay the a fixed penalty of 6 weeks rent to which they asked I should speak to the landlord. The landlord stated to me he will stick with Foxtons.
I then thought of maybe soundproofing the windows, but then I am not allowed to make any changes to the place, so again this will not help and can turn out to be expensive.
3 weeks into my tenure, my tinnitus seems worse, lack o sleep (even tried earplugs) and Im scared it will affect my work as I work on a contract basis.
In all this I accepted my responsibility that I signed the contract, but the fact remains it is very difficult to know how a neighbourhood is at nights, when one needs peace and quiet. I feel I have been denied this y both the agency and the landlord.
What can I do to get these parties to accept my penalty or to come up with a lenient penalty than what they have stated?
The flat itself is lovely, sufficient for me and in a decent commutable distance to Central London where I work. Its only the traffic noise that’s driving me crazy.
Submitted: 12 months ago.
Category: Law
Expert:  propertylawyer replied 12 months ago.

Unfortunately there is not much you can do apart from (1) negotiate a surrender (2) find a new tenant acceptable to the landlord who you can either transfer the existing tenancy to or a new tenancy to be granted and your's surrendered.

Whilst your circumstances effect you there is no contractual or legal basis allowing you to terminate because of this.

The landlord has to take reasonable steps to mitigate loss and cannot seek to penalise you, the 11% commission appears unreasonable if a new tenant is found and the rent under the new agreement the same.

I hope this helps. Do you have any questions or queries?

Customer: replied 12 months ago.
Thanks for the response.I have a few questions for you:-
- Do I need to get clearance from Foxtons before I start looking for a replacement tenant? My contract states Im not allowed to advertise the flat, so wondering how I will manage this.
- Also, whats to 'negotiate a surrender'? Is this as good as asking the landlord to accept my offer?
- My contract states if the flat is left unoccupied by more than 21 days,without informing the agency, it becomes invalid. What could this clause mean?
Expert:  propertylawyer replied 12 months ago.

Firstly, you should discuss with Foxton if there is such a clause. You will probably want to assist to ensure that a new tenant is found asap.

Secondly, yes. Try to reach a compromise to exit the tenancy a cost effectively as possible.

Thirdly, if you leave for more than 21 days the landlord can claim you have invalidated the tenancy. But you could still be liable for rent, expenses etc.

Customer: replied 12 months ago.
Id like to call you, but im only free after 7pm tomorrow. Is that a suitable time for you?In the meanwhile should I attach my contract for you to go through?
Expert:  propertylawyer replied 12 months ago.

I can review the contract but that would be an additional service. If you are agreeable I can send you an offer, you can then accept and attach the document to a message. I can also speak to you after 7pm tomorrow. We do not exchange numbers, I can send you an offer after 7pm and we get connected via the website.

propertylawyer and other Law Specialists are ready to help you
Customer: replied 12 months ago.
OK, send me an offer. I do not think we need to speak though.
Customer: replied 12 months ago.
HI. Iv accepted the AST, what next/
Expert:  propertylawyer replied 12 months ago.

Add the AST by attaching it to a message, via paperclip icon.

Customer: replied 12 months ago.
Attached the tenancy applicaton and agreement
Expert:  propertylawyer replied 12 months ago.

Thanks. I will review generally but do you have any particular concerns or queries regarding the contract?

Customer: replied 12 months ago.
Well I was hoping you would tell me if there is any way I could challenge it,or if there is a provision for me to opt out of it without heavy penalties.
Expert:  propertylawyer replied 12 months ago.

Morning,

I have reviewed the AST.

Unfortunately, the reference to what foxtons told you in your o/p above is also a contract term, clause 19.2. This makes negotiation difficult.

Clause 12.1 says no assignment (I.e transfer) or subletting without landlord's consent but consent should not be unreasonably withheld (meaning the landlord can only refuse if it can be established that is it reasonable to do so, I.e bad references, poor financial standing). So the landlord cannot refuse if you find a tenant of good financial standing with good references. However, you need landlord's consent to advertise the property, cl. 12.3. Although, this may be the only way to find a new tenant quickly. You can ask for consent to advertise but the landlord has absolute discretion to refuse.

Your options (1) accept cl.19.2 and allow foxtons to find a new tenant (2) ask permission to advertise property to find potential new tenants who you will introduce to foxtons / landlord (3) advertise without consent but you would be in breach of cl. 12.3 but if landlord refuses consent in option 2 then you are in the agent's hands (will they act quickly given that you have to pay rent to avoid breaching the tenancy and the risk of a bad reference following you). (4) try to negotiate a financial settlement to leave early. There is no rule of thumb here and the landlord does not have to agree.

The tenancy is on standard terms and there is no break clause. On the facts there are no statutory provisions allowing you to terminate early.

Customer: replied 12 months ago.
Thanks for the clarification. I have one last question - this might sound silly, but if you see clause 19.2, the last sentence states "For avoidance of doubt this clause shall not take effect where the Tenant is operating a break clause contained in this Agreement."
There is no break clause in the contract, yet they are referring to one. Is such a typo admissible?The reason I ask is, before blindly signing the contract I had asked the Foxton Rep that I need a break clause, and she said it does have one.This was verbal unfortunately. In my haste I recall reading this statement and thought the clause must be placed somewhere in the contract so never bothered to look for it - I had signed the contract in good faith.But I guess this is still not a win situation for me...
Expert:  propertylawyer replied 12 months ago.

Hi, there is no break and the wording in cl.19.2 doesn't really effect the document.

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