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Jamie-Law
Jamie-Law, Solicitor
Category: Law
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Experience:  Solicitor
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I spoke with your colleague FE weeks ago about ending a

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Hello, I spoke with your colleague FE Smith weeks ago about ending a fixed-term lease. We are in a property beset by problems, and gave notice to quit on December 15, 2017. Our landlord has said he is willing to release us from any obligation for future rent, provided we pay a penalty fee to his lettings agent. The lettings agent has never managed the property day-to-day.Based on the information I provided, Mr. Smith suggested: "My suggestion would be for the solicitor to write to him telling him that his offer to let you leave if you pay almost £4000 to the agent is rejected however you are prepared to drop any claim for harassment, inconvenience, nuisance, and failure to repair the property in accordance with firstly the tenancy agreement and secondly the Landlord and Tenant Act and you are prepared not to refer the gas issue to the Environmental Health Department at the local authority provided he agrees that you can leave the property early (when you want to leave). The landlord is in breach of covenant for quiet enjoyment of the property."He went on: "I don’t think there is enough to invalidate the lease. He is certainly in breach of the covenants in it but I don’t think that strikes to the very heart of it. There is no agreement between you and the agent and the agent has no claim. A penalty is not enforceable but this isn’t a penalty he will say that it is outstanding rent and re-letting cost."This was excellent advice. The problem is, our landlord has refused to re-market the property until we pay the penalty fee to the agents. We have countered by offering to market it ourselves, to re-assign the property, to pay for advertising and reference checks. Our landlord has not acknowledged this offer.We've written to him: "We will not pay the penalty fee for 2 reasons: 1. Our legal adviser maintains it is “unenforceable.” 2. The reason we are leaving, is for material breach of contract. Any damages therefore are yours to bear.""We have offered you unlimited access to re-market the property, in exchange for terms of surrender & a reference. We’ve offered to re-assign our tenancy to another candidate, of your choice, and to pay for advertising & reference checks. The law does not allow you to let the flat simply sit empty, then claim damages for future rent."We received a response from him. I wrote back: "On re-reading your emails I discovered something intriguing. You said: 'we have not requested rent from you for the period until the tenancy is reassigned, although the contract stipulates that you are liable for that. However, the agents will require their fee and your discussion regarding that matter is with them. We have clearly specified that only they may re-market the property.'""Here is the problem with that statement: you clearly don't know the difference between re-assignment, and re-marketing, from your interchangeable use of these terms, which mean specific and different things. Re-assignment of a tenancy does not - ever - involve a lettings agent. Hence no penalty fee is ever triggered.""Re-assignment takes place when a tenant locates another candidate, and the landlord allows the candidate to assume all the burdens of tenancy, yet, the original lease remains in force. The property never goes back on the market. The substitute never signs a lease of their own. They live under the terms of the original lease, with the consent of the original tenant and landlord.""You seem to have confused re-assignment with re-marketing the flat. You must choose one of these options. Legally, you cannot let the flat sit empty and then claim unpaid rent. You must mitigate loss. So, either you allow us to re-assign our tenancy, or you instruct agents to re-market the property."We didn't hear back, so we wrote him: "We will re-assign our tenancy to another candidate. If you object to this project, we expect a written statement, from your solicitor, declaring why this is your reasonable stance, if you can provide reasonable grounds. 'I don't want to,' is not a reasonable argument."Our lease states: "The Tenant agrees not to assign the tenancy without the Landlord's consent, which will not be unreasonably withheld. (In order to avoid misunderstandings, it is strongly recommended that the Tenant obtain confirmation in writing of any such consent.) The Tenant will be liable for the reasonable fees and expenses incurred."We're offering to fund advertising and reference checks. Can we proceed to re-assignment without his written consent, if he refuses to discuss the issue? He will not respond.

Hello my name is ***** ***** I will help you it’s this.

Does the lease say consent is needed?

Customer: replied 4 months ago.
The lease says, "The Tenant agrees not to assign the tenancy of the premises without the Landlord's prior consent, which will not be unreasonably withheld. (In order to avoid misunderstandings or disputes later, it is strongly recommended that the Tenant obtain confirmation in writing of any such consent granted.) The Tenant will be liable for the reasonable fees and expenses incurred by the Landlord in arranging any assignment granted."

Ok. Then it can not be unreasonably with held. If so, then you are not liable for that period of rent.

Indeed the landlord must mitigate his loss. This means he can not refuse to market the property until the penalty has been paid, this is unreasonable.

Therefore if he does not advertise it, you would not be liable for the rent for that period. If he refuses to give permission to relet you would also not be liable.

Can I clarify anything for you about this today, please?

not, I would appreciate a 5-star rating for my answer. If you need anything further I am available for a follow up at no extra cost.

Jamie-Law and other Law Specialists are ready to help you
Customer: replied 4 months ago.
That is excellent news, very happy to submit the rating. Many thanks!