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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10709
Experience:  I have been practising for 30 years.
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Please I am in desperate need of help. My AST is due to

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Hello, Please I am in desperate need of help. My AST is due to expire in June as I signed a 1yr extension in June 2017. However my circumstances have changed and I have had to move out of the property, I told the agents in Nov that I wanted to move out in February. They said fine but I had to sign a document to say I will pay the LL fees till the end of the term, the re advertising fees and the rent. I said that will not be possible as I cannot pay a rent and a mortgage at the same time, and offered to pay something till a new tenant is found and the debt is paid off. The agents said they will not find a new tenant until I sign the document, they will not allow me to find a new tenant and the Landlord will not negotiate any payment plan. I signed the document and stated I will not be able to pay but I am willing to negotiate a payment plan. I have now moved out and the landlord wants to initiate legal proceedings. I do not know what to do now. I have said and continue to say that I willing to come to an agreement over the debt, but he is unwilling to discuss anything. I gave permission to take the deposit as well

Hello for clarification - what are they doing with your deposit?

what are the legal proceedings saying exactly - thanks

Customer: replied 3 months ago.
The deposit is till with the TDS
They have not started the legal proceedings please find attached latest letter from Landlord's Agents
Customer: replied 3 months ago.
They have refused to do the checkout until the tenancy ends, therefore they are not accessing the deposit even though I have given them permission

Thank you.

There are really only two ways of dealing with this. You either pay them or if they do issue legal proceedings, you defend them.

You have a defence that the landlord has failed to mitigate his loss by firstly failing to allow you to find another tenant, secondly by him failing to try to get another tenant and thirdly, failing to do the checkout inventory.

The signature in all honesty is neither here and there except that it commits you on paper whereas the commitment arises in any event under the terms of the tenancy agreement.

The agent cannot instigate the legal proceedings on behalf of the landlord because they are not solicitors. If the threatening letters from the agent don’t get money out of you, then it will have to be the landlord that takes you to court although the agent can actually issue the proceedings in the landlord’s name, however this gets to court, the landlord is going to have to do attend court. If the landlord of the property is down as being the name of the agent, they can bring proceedings because they are then not acting on behalf of the landlord but on behalf of themselves. It would be unlikely for the landlord to be the agent (although the landlord can use the agents address) and if the proceedings end up in court with the agent representing the landlord, you can ask for the proceedings to be thrown out on the basis that the agent cannot act for the landlord as they are not solicitors. They would then have to reissue proceedings so all it will do is buy you time.

You do have a reasonable defence however that the landlord is failing to mitigate his loss for the reasons I mentioned earlier so it would be worthwhile writing to the agent in the same terms.

Can I clarify anything else for you?

Customer: replied 3 months ago.
Thank you for your response. I gave notice in November and till now they haven’t found anyone. I asked a few times on the progress and they assured me they were looking, there were no viewings till the 9th of February the day we moved out. The agents won’t let me speak to the landlord directly and they keep insisting he won’t negotiate. I am just wondering I’m I justified in saying he didn’t mitigate his loss on the grounds of him not finding someone as the agents claim the house was advertised.

They probably haven’t been looking very hard, even if they have been looking at all.

If you can find a tenant and then submit those details to them, and they turn the tenant down, that bodes well in your favour if they try to take you to court.

I don’t know if you have the landlord’s details, but don’t be intimidated into not contacting the landlord directly if you are able to.

I think that failing to mitigate his loss is your best bet here. They certainly haven’t done that if you handed notice in November and there have been no viewings until now.

Customer: replied 3 months ago.
Ok clear, they refused to give me the landlords details they said they are acting on his behalfYou mentioned writing to them, what exactly do I say? in the meantime do I just wait till they take me to court. Should I make payments towards the rent?

I would be inclined to let them take me to court and then argue that they have failed to mitigate their loss. I can’t tell you to do that course, that choice has to be yours.

You need to tell them that now, that you are unwilling to pay any rent, you have given them 3 months notice and that they have adequate time to find a tenant and that if they do take you to court, you will raise the point that they didn’t even have a viewing of the property until you had moved out and that is proof that they haven’t even tried.

Before you go (you can come back at any time), please don’t forget to use the rating service because that gives me credit. It doesn’t just give me a pat on the head! The thread remains open. We can still exchange emails.

Kind regards.

FES

F E Smith and 5 other Law Specialists are ready to help you
Customer: replied 3 months ago.
Hello I got this today form the Landlord
Dear Ms Johnson,Despite recent correspondence regarding the rent arrears on the above property, no recent payment has been received.The Rent Arrears currently stands at £3300.00 for the period 21/02/2018 – 20/04/2018.I am confirming that the Landlord has now commenced legal proceedings.The Landlord can also pursue debt recovery proceedings against you through the County Court system for the current arrears and any future debt incurred. Should the action be successful, you will have a County Court Judgement recorded against you, which will have a negative impact on your credit rating.Your next Rental Payment of £1650.00 is due on 21/04/2018.For the avoidance of doubt, full payment in cleared funds of £3300.00 must be made immediately.Yours sincerely,StephanieWhat should I do now

I suggest that you ask them what attempts they have made to mitigate their loss and to get a new tenants. Leave it at that. You can’t do anything about proceedings until they are issued.

You can defend part of the claim on the basis that they have failed to mitigate their loss by trying to get a new tenant and whether that would succeed or not would really depend on what attempts they have made.

If it goes to court and you lose, and provided you pay any money you have been ordered to pay within the time period in the judgement, it’s not registered against you.

If they do take you to court, then it comes down to what the judge orders. There’s no way round that.

Customer: replied 3 months ago.
Does the judgement state how long I have to satisfy it, I thought i was just 30days, I wont be able to pay it in 30days

There are normally three timescales specified in the judgement order.

Forthwith: meaning immediately.

14 days

28 days.

If you pay the judgement within that period of time, then it’s not registered against you.

If you ask the time to pay, you may get an order to pay an amount of money every week or month depending on your financial circumstances but you would still get a judgement registered against you unless you paid the full amount even though the judgement did grant you time to pay.

Incidentally, depending on the court loading could be 6, 8, 10 or even 12 months before it gets to court. The last court case I took personally to court (someone owed me some money personally) was 10 months before we had a court hearing and of the landlords does issue proceedings when you are concerned your defence of him failing to mitigate his loss is not going to stand up, you could have paid it before it gets to court

It really comes down to whether you want to defend it all you want to come to an arrangement with the landlord now to pay, say, £100 per month. Even if he doesn’t agree, if you would rather pay it than risk court, just keep sending the money regardless of whether he agrees or not.

Customer: replied 3 months ago.
Ok but I would need to defend the case for it to go to court, if I accept responsibility it wont go to court right
Customer: replied 3 months ago.
Would you be able to write my defence for me if I paid?
Customer: replied 3 months ago.
I actually started doing that yesterday £200 a month but he still wont budge and sent the letter today

It may not necessarily go to court if you accept liability but you are only liable up until he gets a new tenant and you have a partial defence if he doesn’t attempt that.

If he does issue proceedings, it will depend on when he does that and whether he has a tenant at that stage as to what the substance of your defence would be.

I am happy to help you with that wording.

Just keep sending him the money regardless of whether he will budge or not and if he ends up in court, and he has a tenant, then his claim for rent is only up to that period at best.

He may have sent the letter but we don’t know whether he’s going to actually issue proceedings or not. Only time will tell.

Customer: replied 3 months ago.
Thank you we’ll wait and see

I am glad to help. The only way that you can deal with this is to deal with his correspondence and any court papers as it arises.

Don’t ignore anything, including his letters.

Don’t forget to tell him that you have taken advice and you will defend any court proceedings on the basis that he was given notice in November, he has adequate time to look to get another tenant, he has failed to mitigate his loss and that is evidenced by the fact that viewings only took place now. He is not entitled to recover rent from now until June and you now require him to show what attempts have been made to find another tenant, between November and now.

At the moment, the best form of defence is to attack him.

Customer: replied 3 months ago.
Hello it's me again. Hope you not tired of me already
The Landlord has finally found someone, and have been asked to sign the attache, please is there anything that I need to alerted to.Been asked to sign it ASAP and that it it needs to be done in advance of the checkout tomorrow

Hello again.

That is a normal document and there is nothing onerous in it

Customer: replied 3 months ago.
Ok thank you

I am glad to help. Kind regards.

Customer: replied 3 months ago.
Hello. another quick question, we have now gotten to the release of deposit stage. Remember the form they forced me to sign for the early tenancy, can it be enforced by the landlord