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MarianC
MarianC, Solicitor
Category: Law
Satisfied Customers: 854
Experience:  20 years experience in Wills and Probates and Trusts
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Tenant surrendering contract without wanting to compensate.

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tenant surrendering contract without wanting to compensate.
JA: What steps has the tenant taken so far? Have they prepared or filed any paperwork?
Customer: no, only text to share intention
JA: Where is the property located?
Customer: London
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no

Good afternoon

I hope you are well.

I note the tenant wishes to surrender their contract - what exactly do you require advice/assistance with here and I will try to assist you.

If you also have a copy of the contract that would be helpful.

Kind regards

Customer: replied 4 months ago.
thank you Marian. Let me describe my case a bit more for you. I manage my own property and my tenant has stayed with me since sept 2015. Every year towards the end of the tenancy I ask if they would like to stay longer, and I send a tenancy extension agreement. This year, in August, they have text me and asked to stay till next year march , their current lease finishes 13th Oct 2020. So I issued an extention agreement from 14th oct 2020 to 13th April 2021 as per their request, they signed and sent back to me by post
Customer: replied 4 months ago.
the letter was signed on 14th August, and they texted me on 5th Sept told me they changed their mind. we ve then offered a mitigation solution which is to request them paying 11 weeks rental till end of Oct and any cost we incur to relet. or they stay till we find someone. they have since then stopped answering us on phones and text.
the letting agent told me that given the extention lease has no break clause, unless I get a agreement in writing that they state when they want to move out, letting agent wont be able to marketing the place. I want to understand my rights to sue them and next steps

Thank you for explaining.

Unfortunately, your estate agent is correct in that they cannot advertise the property until you have written confirmation from them that they are vacating.

You are somewhat limited with what you can do here unfortunately. Unless they give you written confirmation of the date they are leaving, they are not really in breach of their contract and if you serve them notice to vacate, you may be in breach and you will not recover your losses.

I think your proposal regarding covering rent until the end of October, being the end of the current tenancy, and paying for advertising is reasonable.

If the tenant vacates without confirming to you in writing, you will be able to sue them for loss of rent (only up until another tenant is found) together with the fees for advertising etc but until then, your hands are somewhat tied.

Kind regards

Customer: replied 4 months ago.
thank you for your answer. please can you confirm if text message via whatsapp count as written confirmation? Understand your point that I cannot give notice due to not break clause available. just to clarify, my proposal is for them to covering rent till december (which is 14 oct - 31st Dec) and I will refund balance if someone takes over the lease in between, if not they will still be liable for the payment. however, this proposal deduct their responsibility to pay till the lease end date which is 13 April 2021. If the tenants continue to avoid communications, what are my options?
Customer: replied 4 months ago.
I've drafted this letter to be delivered to my tenant and want to make sure I am not operating illegally: please let me know if this is ok:
Hi Shuai and Lin,
I trust this email finds you well.
I am writing to formally acknowledge your intention to break the lease which was signed and executed on 14th August 2020. The lease we mutually agreed on, extends your rental period at my property (11 Alaska Apartment, E16 1BW) from 14 October 2020 to 13 April 2021.
Below summarises our communication on this subject so far:
On 3 September 2020, Shuai Yuan messaged me on wechat to notify me that even though we had agreed and signed the Tenancy Extension Agreement (as referred to above), due to a change in your personal circumstances (i.e. you are “trying to conceive for a baby” and would like a bigger space), you planned to break the contract between us.
On 7 September 2020, I responded on WeChat and explained due to the mutual contractual obligations and no break clause available in the contract, I am unable to start seeking for a new tenant until you confirm the date you would like to vacate and before you and I come to an agreement on your surrendering contract request. I also emphasised that legally you are liable for the rental payment from the day the extended tenancy starts ( i.e. from 14th Oct 2020) until I find a new tenant or the last day of the agreed tenancy term (i.e. 13 April 2021).
On 9 September 2020, whilst there was no legal obligation for me to terminate your contract early, out of goodwill, via WeChat my husband and I offered what we deemed to be a reasonable proposal and one which would also help to mitigate your financial loss. I suggested that: if you are set on moving out of the property on 14 October 2020 and therefore surrendering your tenancy agreement, you will be required to pay 11 weeks' rent plus any additional costs that we should incur (e.g. cost on re-marketing the flat, council tax before the flat is reoccupied, etc.) However, should we find a new tenancy during the 11 weeks period, we will refund you the balance of this compensation amount already paid on a pro rata basis and that you would no longer be liable for any future payments. We also suggested an alternative proposal where you could continue to occupy the property until we found a new tenant, at which point you could leave, even before the end of the contracted end date of the tenancy. Since then, you have NOT responded to these proposals at all, neither have you communicated with me exactly when you intend to vacate my property and what you want to do with your tenancy obligations.
On 11 September 2020, we reminded you again via WeChat to respond to our proposal and / or let us know your position, but as of today you still have NOT responded and avoided all communications with me.
Based on the above, in order to mitigate both of our financial losses due to your intended breach of contract, I would like to re-let my property at the earliest opportunity and will require the below information from you before I can take action:
1. Confirmation in writing on whether you intend to honour or break the contract between us (referred to above);
2. If you intend to break the contract, confirmation on when you will vacate my property and when I can receive the keys and perform an inventory check; and
3. Your new residential address to which I can direct any further correspondence. If this is not provided, I will use your business address (i.e. Shangshuijian,***** E14 7JD) to direct any legal correspondence should you unlawfully break our contract.Lastly, as the landlord, I would like access to the property on 20 September 2020 at xxx time. Please take this as my advanced notice (refer to Contract term B17) and confirm your permission of the visit. If the time does not work, let me know when we can visit on either 20th or 21st Sept 2020.
Please respond to my email in writing at your earliest opportunity to avoid unnecessary delay of actions.
Regards, *****
Customer: replied 4 months ago.
please ignore above letter, just rewrite it and see below instead:
Dear Shuai and Lin,I trust this letter finds you well.I am writing to formally acknowledge your request to exit your lease early, which was agreed to, signed and executed by both parties on 14th August 2020. The lease we mutually agreed on, extends your rental period at the property (11 Alaska Apartment, E16 1BW) from 14th October 2020 to 13th April 2021 (inclusive), with no break clause.To summarise our communications on this so far:On 3rd September 2020, Shuai Yuan messaged me on WeChat to notify me that although the Tenancy Extension Agreement (as referred to above) has been agreed to, signed and executed; due to a change in personal circumstances (i.e. you are “trying to conceive for a baby” and would like a bigger space), you want to exit the lease early.On 7th September 2020, I responded on WeChat and explained that due to the mutual contractual obligations (which puts legal obligations on me not to evict early, but also legal obligations on you not to leave early) and no break clause in the contract, that legally you are liable for the rental payments from the day the tenancy extension starts (i.e. from 14th October 2020) until I find a new tenant, or until the last day of the agreed tenancy term (i.e. 13th April 2021). It is legally immaterial whether the tenancy extension has started yet, only that it has been agreed to, signed and executed. As such, exiting the lease early can only be done by agreement. I also said that even if we should come to an agreement for you to exit the lease early, I would be unable to start looking for a new tenant until you confirm the date you would like to vacate in writing.On 9th September 2020, whilst there is no legal obligation for me to do so, out of goodwill, via WeChat, I offered what I deem to be a reasonable compromise and one which would mitigate your financial loss, but also protect against my potential financial loss. I offered that: if you are set on moving out of the property before 14th October 2020 and thereby surrendering your tenancy agreement, you would be required to pay the equivalent of 11 weeks' additional rent as a forfeit, plus any reasonable additional costs that should be incurred (e.g. costs on re-marketing the flat, council tax before the flat is reoccupied, etc.), but otherwise that you would no longer be liable for any future payments. However, should a new tenancy start during the 11 week period, the forfeit payment would only be due up until a new tenancy started, and I would refund you the balance of the forfeit already paid on a pro rata basis. I also suggested an alternative, whereby I would market the property with your permission, and you could continue to occupy the property until I found a new tenant, at which point you could leave when the new tenancy started, without further obligations (other than those obligations related to ending the lease and returning the apartment).On 11th September 2020, I contacted you again via WeChat to remind you to respond to my proposal and let me know your decision.So far, I have not heard back from you, and you have not responded to these proposals. I do need a decision from you on whether you wish to stay until the end of the tenancy, the 13th April 2021, as agreed (which is the default legal position), or whether you wish to accept one of the offers I have made as above. Note: failure to either honour the tenancy as it stands, or failure to accept one of my offers and thereby end the tenancy early by agreement, constitutes an illegal act, for which I can pursue you in a court of law; though I sincerely ***** ***** does not come to that.Assuming your intention to act in good faith, and in order to mitigate both of our financial losses due to your request to exit the tenancy early; I would like to re-let the property at the earliest opportunity and require the below information from you before I can take action:
1. Confirmation in writing of the decision you intend to take as above;
2. If you intend to accept my offer limiting your liability to a forfeit of 11 weeks’ rent plus costs, then confirmation of the date you will vacate the property, will return the keys, and be subject to an inventory check; and3. Your new residential address to which I can direct any further correspondence.
Customer: replied 4 months ago.
Finally, as landlord, I intend to access the property on 20th September 2020 at xxx time, in order to inspect it, given your request to exit your tenancy early. This is a provision/clause stated in your lease, that gives me the right inspect the property given one working day advance notice. Please take this letter as my advanced notice (refer to Contract term B17). If this date and time does not work for you, please let me know when I can visit; an alternative date I can offer is the 21st September 2020. If I fail to hear from you, I will take this as acknowledgement of my notice to visit on the 20th September 2021 at xxx time.Please respond to my letter in writing at your earliest opportunity to avoid unnecessary delay of remedial actions and incurring of additional costs.Yours Sincerely,

Good morning

Apologies for the delay in responding to you.

You are not acting illegally by sending the letter, you are just requesting confirmation of their intentions which is absolutely fine.

Whilst it could be argued that the confirmation via WeChat is written confirmation, they still have not given you a formal date to vacate the property.

Customer: replied 4 months ago.
Thank you for the response. Please can you let me know, if they continue ignoring me what else can I do within my legal right? Further I have a question on their deposit. Since sept 2015, I have kept 8 weeks of their deposit in the protected scheme. In the case they leave my property without agreement and breach the contract, am I in right to retain all the deposit? I understand from june 2019 I am only in title to keep 5 weeks, but in case of surrendering contract I am ok to keep all 8 weeks?
Customer: replied 4 months ago.
just to add on above, I want to make sure that the deposit amount I kept since 2015 does not go against any of my rights as landlord. it is protected in the scheme and certificate has been provided to the tenant. thank you

Unfortunately, unless they give you a date in writing confirming they are vacating the property, your hands are tied. You are able to serve them notice however if you do so, you will not be able to claim loss of rent etc.

In respect of the deposit. If the tenancy agreement was renewed after 1st June 2019, which from your comments it was, you should only be holding an amount equal to 5 weeks rent. The excess deposit should have been refunded to your tenant (unless the annual rent is over £50,000 in which case you can hold 6 weeks deposit).

Customer: replied 4 months ago.
understood, so even in the current situation, you would recommend me to return the 3 weeks deposit immediately? does my current situation of holding the 8 weeks somehow impact my right / position of fighting the case of claiming against their rental arrears in general please?

I would suggest the addition 3 weeks deposit is returned to the tenant as soon as possible.

The holding of the additional deposit may constitute a prohibited payment which is an offence under the Tenant Fees Act 2019.

The cap applies to all tenancies entered into from 1 June 2019 and will apply to any fixed term contracts which are renewed for a further fixed term even if it is the same tenants at the same property, as any new agreement entered into will be classed as a new tenancy. At this point, the landlord will be required to repay the amount of the deposit held, which is over the five or six week cap.

Any clause within tenancies entered into prior to 1 June 2019 that breaches the Tenant Fees Act, such as the deposit cap, will no longer be legally binding. This applies to all tenancies.

If by holding the additional deposit, you are in breach of the Tenant Fees Act, the tenancy may be unenforceable so would impact your rights for rental arrears.

Customer: replied 4 months ago.
understood, I will return the 3 weeks deposit now. one last questions for now please. I was looking for all the paper works, I cant find the signed extension letter that covers their current stay, but I do have their initial contract and all other extension agreement including the one from oct 14 2020 to April 13 2021. I have an email delivering the unsigned contract covering the period of Oct 13 2019 to Oct 13 2020, and text exchange from the tenant confirming they have posted back to me. is this enough to prove that their current state is under contractual obligation please

This should be fine.

The tenant should also have a signed copy of the current agreement.

Customer: replied 4 months ago.
Understood, thank you very much
Customer: replied 4 months ago.
I may need to keep this question open just for 1 day longer
incase I have more queries dealing with the tenants

That's absolutely fine. I will leave it open if you need further assistance.

I would be grateful if you could rate my response in the meantime so I am credited with assisting you. It will not delete the question.

Kind regards

Customer: replied 4 months ago.
I will do Marian, thank you ever so much!

No problem at all.

Kind regards

Customer: replied 4 months ago.
hi Marian,
I have just sent off the letter to the tenants and want to plan my steps ahead.
I've required access to my property this coming weekend (1 working day notice in contract). if they don't respond, what is the advised steps i can take to get to inspect my place before they disappear please? I also don't know how I can get my keys back if they just decide to not to communicate at all. would you kindly advise?

Hi

Did you send the letter by recorded delivery? This way, when the letter arrives and is signed for you will know that they have received it and are aware that you require access at the given time. If you do not receive a response, you should still attempt access on the basis they have received the letter and did not object. Of course do not forcibly enter the property.

If you find out your tenants have just disappeared, it would be advisable to have the locks changed.

Customer: replied 4 months ago.
thank you, ***** ***** legally if they don't respond to be I can take it as they have not objected and I can still visit. I guess I cannot use my own keys to enter, I will wait for them to open the doors etc.

Yes, ensure you knock and wait for them to open the door.

Kind regards

MarianC and other Law Specialists are ready to help you
Customer: replied 4 months ago.
great, thank you!
Customer: replied 4 months ago.
will rate now but please kindly keep the question open. I am still needing to understand if they don't respond to me and not lettingme in what else I can do.
Customer: replied 4 months ago.
hi Marian, i have some follow up questions please kindly help me to address:
following my letter to the tenant yesterday, he has written back with following wordings: "I’m writing to give notice again to terminate our tenancy at 11 Alaska Apartment, 22 Western Gateway. E16 1BW. We are leaving the property on 14th October 2020. This is the second notices from this date (7th September 15, 2020) both in Chinese and English." where his refereed to on 7th Sept, he's not explicitly state the date to move, but the current email does. This presumably gives me the right to relet, however I want to make sure by reletting, i am not accepting this as an agreement for surrendering our contract from 14th oct 2020this is he's reasoning to change his mind: "The reason we want to leave is due to a sudden new life,I’m pregnant. My family will come to the UK look after me and the coming baby. That sudden change situation asks us to find a new bigger room for our family. Moreover, during Covid-19, On the one hand, we hope to ensure maximum safety, reduce the commuting of parents and pregnant women, and, our economic conditions have been greatly affected during the epidemic the cost of renting an additional house is unaffordable for us."He's also offered to leave 5 weeks of deposit behind as a compensation, which is far less than the loss I will need to bear: i.e. remarketing, rental between oct 2020 to april 2021.
Please can you advice and confirm. given his statement of moving out,can I relet without accepting this "offer"? and if I am to take him to the court to claim, what is the timeline, do I wait til new tenant to move in so I can see the total lost? how long have I got to file the case with court and what are the suggested steps and evidence please.
lastly, can he refuse to give me his future correspondent address?
many thanks!

Morning

If you have a new tenant in the property, you will not be able to claim for loss of rent from the time the new tenant moves in. Regardless of the fact that they have signed up to a new tenancy that expires in April 2021, you cannot claim rent from them if you are being paid rent from a new tenant. So for loss of rent, you will only be able to claim from 14th October until the new tenant moves in. Does this make sense?

You are able to remarket the property, you now have written confirmation of the date they intend to move out.

He should not refuse to provide a future correspondence address as you may need this.

Customer: replied 4 months ago.
it makes complete sense, thank you. I am only looking to recover the lost between oct till whenever a new tenant is founds. Do I need to put this in writing so he is not under the impression that I agree to what he has proposed, although I would prefer to raise this after he moves out so at least I know he cause damages etc. hence please could you advice I can go through small claim court after I find a new tenant rather than immidiately
I would suggest you acknowledge the notice and confirm the date they are leaving the property. Remind them that they are still bound by the tenancy agreement and that they are liable for any further costs that may arise over and above the 5 weeks deposit I.e. costs of re-renting, any damage to the property etc.
You do not need to lodge a claim immediately
Customer: replied 4 months ago.
thank you very much Marian, really appreciate it.

No problem at all. If you haven't already, i'd be grateful if you could please rate my response.

Kind regards

Customer: replied 4 months ago.
hi Marian, thank you I have provided rating to you. Please may I ask another questions. The deposit I held in the scheme, when can I claim deduction, if they move out on 14th Oct and I haven't found new tenant, which means they are still liable for the rental, but does this mark their end of tenancy? - i.e. can I already claim deduction from their deposit or do I need to wait new tenancy to start to mark the end of the current tenants' contract ends?

Hi

Apologies for the delay in responding.

I would suggest you wait until the new tenancy begins.

Customer: replied 4 months ago.
Thank you
no problem
Customer: replied 4 months ago.
hi Marian, happy friday. I want to final check my legal position before I visit my property (with tenant's permission) next week on the case I consulted you earlier this week.
I now have a respond from the tenant confirming the date they will vacate my property which is on 14 Oct 2020 (the first day of the extension contract starts, current on runs out on 13th Oct 2020)
it is clear they are not going to honor the contract. I have emailed them in writing stating that I will retain their 5-week deposit to pay their rent arrears but I this does not mean you are relieved from their contractual obligations. I also stated given they are moving out before contract ends next april, I have no choice but to relet to minimize both of our loss. I want to check, by reletting, I am still in position to claim the loss between the time they moves out and new tenant moves in (including rent, council tax, cost to re marketing the place etc.)

Good afternoon

I hope you are well.

What exactly is it you are looking for clarification on here?

Customer: replied 4 months ago.
hi, sure, the question is by resetting, it does not mean I have accepted / agreed to their early termination.
Customer: replied 4 months ago.
I can still claim the loss between the time they move out and new tenant moves in

Hi

Yes, you can still advertise to re-let the property and they will be liable for the rent up until someone else moves in.

Kind regards

Customer: replied 4 months ago.
Understood, thank you Marian

No problem.

Have a nice weekend.

Customer: replied 4 months ago.
likewise, enjoy your weekend and thank you for your help and guidance