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Remus2004
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69369
Experience:  Over 5 years in practice.
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Giving notice assured shorthold tenancy

Customer Question

giving notice for an assured shorthold tenancy
Submitted: 1 year ago.
Category: Property Law
Expert:  Remus2004 replied 1 year ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
-Could you explain your situation a little more?
Customer: replied 1 year ago.

Hi,

Thanks for picking this up - continuation from previous thread.

I wrote pretty much as you suggested, and received the reply that the landlord had contacted the letting agent to arrange for new viewings.

(Do you need to read these? - I can copy the text in if you felt it best and didn't mind).

As a first point:

You mentioned before that the landlord has a duty to mitigate his loss ( I hope this is the case) - by attempting to re-let at the same price?

The rent increased just over two months ago (when I re-signed) by £25 to £500 / week. I have just noticed that the flat is back with the agent at £540 / week.

Can I take issue with this? I.e. that I shouldn't have to subsidise the landlord attempting to make a profit rather than mitigate loss and so potentially missing out of prospective tenants at replacement cost?

Thanks.

Expert:  Remus2004 replied 1 year ago.
It depends.
Certainly he cannot deliberately ensure the flat cannot be let by pricing it too high for the area. But he can increase the rent to an appropriate rent in the area. Actually £540 isn't that much.
I suppose you could argue that the recent increase gives rise to the inference that was a proper price and so the new increase is just to deter new tenants.
But that only applies if he tries to take the money from you.
Can I clarify anything for you?
Jo
Customer: replied 1 year ago.

I'm not sure what you mean "if he tries to take the money from you".
I'm not sure why he can increase the rent... if he accepted an increase to £500/week two months prior, and has a duty to mitigate his loss, then shouldn't he try for the same price in order to maximise the chances of finding a replacement?

Could you tell me what the worst case scenario is reasonably likely to be?
What is my best course of action?
Thanks.

Customer: replied 1 year ago.

On the previous thread you wrote:

"

He would have to prove he had looked to find a replacement at the existing rent and could not find out which is hard to do.

If he could do that then you would be liable but that isn't going to happen.

"

so I'm confused why you say now that he can increase the rent.

Expert:  Remus2004 replied 1 year ago.
I'm not sure why he should not be able to increase the rent?
Landlords have to do it at some point.
Customer: replied 1 year ago.

You had previously written (on the other thread):

"the landlord is under a duty to mitigate his loss by seeking a replacement and usually he is expected to achieve that within one to two months."

and:

"He would have to prove he had looked to find a replacement at the existing rent and could not find out which is hard to do.
If he could do that then you would be liable but that isn't going to happen."

I'm saying, based on what you said previously, he should not be able to increase the rent and continue to hold be liable if he is under a duty to mitigate his loss - because increasing the rent is not mitigating loss but seeking profit (potentially at my expense if it puts of prospective tenants).

And, that if he has increased the rent then he could not prove he had looked to find a replacement at the existing rent - which you said he would need to do in order for me to remain liable.

Could you have a think about this, because it seems I may not be explaining my logic based on your previous answers well enough.

Thanks.

Expert:  Remus2004 replied 1 year ago.
I'm sorry but I cannot agree that a landlord cannot ever increase the rent and still be complying with a duty to mitigate.
Customer: replied 1 year ago.

so you think that the landlord increasing the rent by 8% two months after having accepted another year's rent at 5% increase is consistent with your previous answer:

"He would have to prove he had looked to find a replacement at the existing rent and could not find out which is hard to do."

I don't see how that is looking to find a replacement AT THE EXISTING RENT, as you previously wrote.

Could you address that point specifically please? At no point was never increasing the rent mentioned.

Thanks.

Expert:  Remus2004 replied 1 year ago.
Certainly he cannot deliberately ensure the flat cannot be let by pricing it too high for the area. But he can increase the rent to an appropriate rent in the area. Actually £540 isn't that much.
I suppose you could argue that the recent increase gives rise to the inference that was a proper price and so the new increase is just to deter new tenants.
Customer: replied 1 year ago.

You're copying and pasting your answers which I find arrogant.

Can you admit that you are contradicting your previous answer:

"He would have to prove he had looked to find a replacement at the existing rent and could not find out which is hard to do."

Increasing the rent is not "at the existing rent". Do you understand this?

Expert:  Remus2004 replied 1 year ago.
I'm really sorry and I wish I could tell you something else but I am not going to be able to tell you that he cannot increase the rent.
It depends on rents in the area.
He has a duty to mitigate his loss by seeking a replacement tenant. He cannot charge less than the existing rent as that would not be mitigating because you would remain liable for the difference.
He could charge more if that is appropriate in the area. If it is not then he is just deterring tenants which is not mitigating.
Customer: replied 1 year ago.

Very well. Thank you for that clarification. Perhaps I took you previous statement too literally when you wrote "find a replacement at the existing rent".

I previously asked:

"Is there any advantage of offering to make up the difference between current rent and prospective rent (to make it easier to find a replacement)."

And you replied:

"I wouldn't make that offer. It just opens up a can of worms. He will replace you fairly easily within a month unless the house is literally falling apart."

Is it still unwise to make that offer? I might work out far more economical in the long run than the landlord pushing for top price safe in the knowledge that I'll continue to be liable? That's a free option for the landlord. There's no downside in trying to get lucky by asking an unreasonably high rent.

The flat is in reasonable condition and about 10 minutes walk from St Pauls, so I have trusted your comment that he should replace me fairly easily.

If this does not happen, what would be the best way to proceed?

How many more months rent should I pay before stopping paying and being prepared to be taken to court (if that is the worst case likely outcome)?

Thank you.

Expert:  Remus2004 replied 1 year ago.
Oh yes, he will replace you easily.
If he does then either he sues you for the rent or keeps your deposit and then you sue him.
The challenge then would be whether or not he has mitigated his loss. There are lots of ways of failing to mitigate - allowing disrepair, overcharging etc.
He can't charge an unrealistic rent for the property to deter tenants because he knows you will be liable. The Court won't let him get away with that. What he can do is increase the rent if he can show that is appropriate in the area.
There are no guarantees really but usually one month is sufficient. Thereafter I would refuse to pay and invite him to sue if he thinks he can prove that he has tried to mitigate and been unable to.
Customer: replied 1 year ago.

ok, thank you. Just a few more questions:

Allowing disrepair would not be one. Perhaps it could be argued that if the rent went up 5% two months ago and was accepted for a year, why is it now being marketed at an 8% rise. That must potentially put off some potential tenants.

Would it disadvantage me to point this out to the landlord?

If you think it would not disadvantage me, I will pay for one month after from the 1st business day after I gave notice. Maybe that will encourage him to lower the rent back to what he accepted from me.

Should I give notice of my intention to cease to pay, or simply cease?

If I were sued, and a judgement were made against me, would I be allowed to pay in installments?

Although I paid for a carpet steam clean, he has claimed that the carpets need another clean. Would it disadvantage me to offer to pay for this cleaning as a gesture of goodwill?

Lastly, he has claimed that one of the four chairs has been damaged (which I would not agree with) and that he has ordered a replacement set.

Is it a good idea to ask for the checkout agent to visit the property to make an assessment against my deposit for two years of fair wear and tear, rather than agree with the landlord buying new things?

Thank you.

Expert:  Remus2004 replied 1 year ago.
Yes, overcharging can be failing to mitigate.
It doesn't disadvantage you to mention this to him. You can always do it without prejudice anyway so he can't use it against you.
In terms of rent, obviously whenever you stop paying may lead to you being sued. The only way to avoid that is to carry on paying throughout. You need to decide at what point you are happy to risk that.
If you are sued then it will drop off your credit rating if you pay within 28 days of judgment. If you cannot then you need to return to court and apply for a variation order to pay in instalments which would succeed.
You don't have to pay for a steam clean. That is wear and tear for the landlord. You could if you chose but I wouldn't just make offers of that nature without getting anything back. Make an offer that you will pay for it if he agrees to release you.
He only has a claim against you for the damaged chair. He can't buy four new ones at your expense.
He should use an inventory clerk anyway for the purposes of evidence gathering.
Customer: replied 1 year ago.

(I will rate this as excellent and release the funds when this concludes).

I received the below. Should I request that no work be done and nothing be bought under the presumption that the cost will need to be deducted from the deposit until a checkout agent has visited?

Paul has been around today and will return tomorrow with tools.
There are a number of marks on the walls in the flat and Paul will try his best to clean or touch up most.
The lounge room however will need to be painted as there are a substantial number of large marks in that room.
The cost of painting that room will need to be deducted from the deposit. I will ask Paul for a price.

Expert:  Remus2004 replied 1 year ago.
I don't suppose you have photographs of this 'damage'?
Customer: replied 1 year ago.

I can take them. I'm still living in the flat (for now).

Expert:  Remus2004 replied 1 year ago.
That would be a good idea. The problem is that you can't photographs of every nook and cranny and it is impossible to predict what he will allege.
You are right though. They should be getting an inventory clerk first and then doing any remedial work but you cannot force them to do that.

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