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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9340
Experience:  I have been practising for 30 years.
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We originally moved into our house on 24th April 2015 on a

Resolved Question:

We originally moved into our house on 24th April 2015 on a 12 month lease. By mutual agreement, this then changed to a Fixed Term rental agreement (01/01/16 - 31/03/18). On 14th July 2016 we met with our landlord and asked if he would agree to end it early as our situation had changed. We had originally intended to buy the house but now find that we cannot afford what he feels it is worth, plus have also discovered that the drive and gardens flood badly and frequently in wet weather, resulting in us being unable to drive in and out of the driveway and depositing large amounts of flood debris all over the drive and in the the lane outside the house. We were unaware of the extent of this flooding when we entered into the Fixed Term Agreement. We have explained to the landlord that the reasons are financial and family based and not mentioned the property issues as yet. We have always had a strong and friendly relationship with him and did not want to cause offence. The agreement does not end until March 2018 and our landlord has texted us to advise that he will not be rushed into making any decisions regarding the contract (28th July) but has put the property on the market for sale (1st August), expecting us to allow viewings and deal with the estate agent. The house is apparently being marketed as vacant possession although we have not given notice yet and have not received any notice from the landlord of his intentions, save 1 text message, advising us that he had put it up for sale and that an Estate Agent would be contacting us to get keys and alarms fobs etc. We have found a house to move to and want to give notice to leave asap.
Submitted: 11 months ago.
Category: Law
Expert:  F E Smith replied 11 months ago.

What would you like to know about this?

Customer: replied 11 months ago.
Hi. We'd like to know what our position is legally and what is the best route to take for us to give notice and leave the house.
Customer: replied 11 months ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 11 months ago.
Hi - Sorry, I don't want to spend any more money until I have some kind of idea of our position on this. How long will it be until you are able to give us some written information please? Many thanks, Steph
Expert:  F E Smith replied 11 months ago.

I think the Premium Service proposal because you asked for a telephone call. You don’t have to take it up.

The fact that you may have been going to buy the property and have now changed your mind is not relevant with regard to the rent.

At present, the legal situation is that he is stuck with you until the end of March 2018 and you are liable for the rent until then or until he gets another tenant to replace you if you just move out.

He is under a duty to try to get another tenant. Meanwhile you are responsible for the rent.

The difficulty facing you is that your only bargaining chip to go early is that he wants you to go but he only wants you to go when the property is sold. On the other hand, you are entitled to stay until the end of the term and the buyer would buy the property subject to your tenancy.

The only way out of this is to tell the landlord that unless he lets you go now, you will have no option but to stay until the end of the term and hence, he will not be able to sell with vacant possession.

Basically, you are going to have to bluff it.

You can tell the agent that so that they are not misleading anyone who enquires after the property.

Can I clarify anything else for you?

Please rate the service positive. It doesn’t cost you anything but helps me greatly.

We can still exchange emails. Best wishes. FES.

Customer: replied 11 months ago.
Many thanks for getting back to me so quickly and for the information. Could you clarify a couple of points please? Firstly, as we are in a fixed term agreement, does he have the right to put the house up for sale at all? is he not breaching the contract in doing that as we have not given notice to leave at all? also, is there any mileage in the fact that he didn't disclose the level of the flooding? We did specifically ask about it prior to taking the original rental agreement as we checked the image on google earth and saw flood water near the house. He advised that the image shown was the worst it had ever been and that it hadn't happened since. we know this to be entirely untrue from neighbours - the image shows flooding nowhere near as bad as what we have had. we would never have signed an extended agreement had we know the truth.
Expert:  F E Smith replied 11 months ago.

Yes he can put the house up for sale the buyer will buy it subject to your tenancy and he does have to give you the new landlord’s name and contact details.

He hasn’t breached any contract by putting the property up the sale and he hasn’t breached any contract by saying its vacant possession. That’s only because he hasn’t sold. However it will be breach of contract if he sells and completes on that basis and you are still in occupation.

He isn’t under a duty to disclose anything about the property. Caveat emptor applies. You have to make enquiries and if he misrepresents in replies to those enquiries, you can claim breach of contract.

However whether you would be entitled to terminate the tenancy agreement based upon the excess flooding would depend on what problems the excess flooding caused for you and how often. If you had bought the property, you would be entitled to substantial compensation for that misrepresentation.

It would be less so in a rental agreement.

Although you have to be where of threatening blackmail, the extent of the flooding would be something which any buyer would be really interested in!

I’m sure you take my point.

Customer: replied 11 months ago.
I do! Basically we just want to get out and get on with our lives. we have worked very hard to look after the property and our landlord has openly said on many occasions that he could not have asked for better tenants. this is the reason that he will not take up our offer to pay any costs incurred with transferring our lease/terminating/re renting to another party. he feels that he wont get anyone as good as us and has decided to put it up for sale. the house had been empty for 8 months prior to us moving in at an asking price of £725,000. he had received offers lower than that but couldn't achieve anywhere near the asking price. he has now advertised it at £745,000. our position is that we are purchasing a house at substantially less money and want to complete and move within the next 6 weeks - it seems really that we don't have any option but to give notice and leave and see if he takes action against us then?
Expert:  F E Smith replied 11 months ago.

In a nutshell, you are correct. However, if he doesn’t know that you want to leave, you can give the veiled threat that he can’t give vacant possession if you are in the property and you are really worried about it!

Tell him that if he’s going to sell with vacant possession he needs to let you go now you don’t want to be looking for a house at the last minute. Is not the legal situation he doesn’t need to know that you know what the legal situation is.

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