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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 28249
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I took your advice and sent an email telling the agency that

Customer Question

Hi there, so I took your advice and sent an email telling the agency that I give the landlord 3 days notice to send me the deed of surrender, deposit and rent. I also removed all of my belongings, however they have not responded to me and I noticed that the day I sent them this email, they put the flat back up on the website to rent!Just wondered if you had any advise on what I could do next?Thank you
Submitted: 18 days ago.
Category: Law
Expert:  Joshua replied 18 days ago.

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years’ experience. Please be aware that although I will endeavour to reply to you promptly, I am also in full time private practice and so I may not be available to respond immediately and it may also take me a few minutes to prepare a reply. The site will notify you as soon as I respond. I look forward to working with you to answer your question fully.

  1. I am sorry to read of the above and I note that the property plumbing installations were not supplying clean water. Was any clean water available to any sink in the flat please?
  2. Have you returned the keys to the flat?
Customer: replied 18 days ago.
Hello, thank you for your response. Yes the water coming out of the taps appeared to be clean. It’s the smell that started to come out that was the issue. And yes, I returned the keys on Wednesday just past
Expert:  Joshua replied 18 days ago.

Thank you. Was the smell over powering or more subtle though unpleasant?

Customer: replied 18 days ago.
It was overpowering. When it happened, I contacted the landlord straight away and when he came in he immediately smelt it. Also, a few days after a picked up the keys initially, I went with my mum to do some cleaning and she opened the tap in the kitchen and them smell was coming out then also. I’d also like to add that the pumps under the kitchen were apparently fitted the wrong way and he had called out a plumber to fix it. This was about 3 weeks ago. While the plumber was fixing it, there was a leak. But he apparently fixed it. On Saturday the same thing was happening with the leak after he said it was fixed. He then said he would have to get a professional plumber out to fix it which had me wondering whether the person he called out initially was professional in the first place
Expert:  Joshua replied 18 days ago.

thank you. I note the actions you have taken and the information you have previously been given on the matter. I do not disagree with my colleagues advice however I am concerned that you appreciate that it is not easy to surrender a tenancy unilaterally and is certainly not an absolute right. The tenancy can be surrendered with the agreement of the landlord, under any contractual right you may have or if you can demonstrate that the landlord is in breach of contract on a funamental term.

What this means in this case is that you would need to demonstrate that the property is uninhabitable as a consequence of the plumbing issues. This is as you will likely recognise relatively high hurdle. A smell of sewage is unlikely to be sufficient to give rise to a surrender of Tennessee unless the smell is so overwhelming that it is not reasonably possible to live in the property or if it represents a health hazard. The difficulty with smells as they are hard to evidence as he cannot take a picture of them. Rather, you are limited to describing them which is subject to dispute.

The position as things stand is that you have asked to surrender the tenancy and the landlord through his agent has remained silent on the point. Until such time as the landlord accepts the surrender, the landlord can claim that a tenancy continues to exist and you owe rent under the tenancy end of the landlord refuses to accept a surrender, then you may need to consider an application to court for a court order as regards surrender.

There are various options available to you. the key would be to continue to impress upon the agent your requirement for a surrender and if they refuse to engage, you may need to consider collecting some evidence to support your position that the property is uninhabitable as result of the stench. To do so, you can either contact the local authority's environmental health department and asked them to inspect the property as a health hazard or under the housing health and safety rating system inspection framework.

You can consider contacting the agents and precedent for a response to your request and if they refuse to accept a surrender, advising that you therefore request the keys in order that you can organise a HHSRS inspection and plumber to provide reports in respect to the drainage and that you will be seeking damages and an order that the property is uninhabitable as a consequence of which the landlord is in breach of contract. If they refuse to return the keys to you, if you can document this with evidence such as a video recording or telephone recording, this would be evidence in itself of acceptance of surrender because on the one hand they cannot claim the rent from you and on the other refuse to give you keys.

If you need to resolve this matter in the County Court, you can do so using form N1 seeking an order of breach of contract on the grounds that the property is uninhabitable there as above, you will need to consider having supporting evidence if such a claim were to be brought.

https://www.gov.uk/government/publications/form-n1-claim-form-cpr-part-7

Customer: replied 18 days ago.
Ok, thank you for all this advice. So over the phone the agents told me that he agreed to a deed of surrender but they said I had to keep paying the rent until they found someone new. However no deed of surrender has been sent, yet the property is back on the market to rent. The rent is due to come out the 20th and as it is a weekend, it would get to them on the 22nd. Because of the initial advice I had received, I cancelled the direct debit. Do you suggest that I reinstate it? I just don’t want to be paying out the rent and they decide to delay finding someone new. Hope that makes sense
Expert:  Joshua replied 18 days ago.

thank you. Based upon what you report, they have not agreed therefore to accept a surrender of the tenancy but rather simply saying that if you can find a replacement tenant, or they can, then they will release you at that point. This indicates that they intend to hold you fully liable for rent until such time as a replacement tenant is found. Obviously you do not want to pay rent in the circumstances and therefore I think you will need to consider some of the above suggestions in terms of collecting evidence in respect of a possible future dispute. As above, if you can obtain evidence that they refuse to give you the keys back, then this would operate to your advantage because it would be a demonstration of a fundamental breach of contract on the part of the landlord is failing to give you access to a property they are claiming rent for is a fundamental breach which would be grounds for claiming rescission of contract in its own right. Conversely, if they do you use, upon request, then you may need to consider collecting evidence as discussed above in order to defend against any claim for further rent at least by way of a rent reduction if not a claim that the contract is cancelled (rescinded) on grounds of the property being uninhabitable

Customer: replied 18 days ago.
Hi there, the agency responded to me, please see below and my response back to them, thank you *****
Thank you for your email and confirmation of leaving the property.
As discussed with you earlier this week  you have signed and agreed to a 12 month agreement with a 6 month break clause – you requested to leave the property and the landlord agreed to allow you an early release of the contract and negotiate the terms of the early release and confirm in a deed of surrender. The conversation you did advise me that you would have a think about this and confirm with me before I issue the deed of surrender – you did not come back to me so I could arrange this and have instead left the property without any notice. Based on this you will be liable for the rent for the remainder of the tenancy or until a new tenant has been found.
I do understand and appreciate that you have had some maintenance issues as discussed I do understand you have reported some items direct to the landlord and these items are being dealt with and in hand also now with the support of streets ahead to expedite.
The new issue reported last weekend to myself in relation to sewage was seen to the same day and we are currently dealing with the issue with the flooring and assessing any other areas. You have stated the property was not ready for you to move into however still went ahead with the tenancy and also requested and started the process to add your partner into the tenancy I would not have thought if the property was inhabitable that you would want to add additional persons onto this tenancy. Also based on check in report this does not report the property being inhabitable.
I am sorry to hear that you have said you are not able to contact me – attached is your welcome email with all of my contact details and link to report maintenance  and office number – I have checked the system and cannot see anything reported – I have also looked into this with the landlord who has shown evidence of this being in hand with yourself.
At this stage I am not able to release the deposit as the rent is still due on the property and you have already expressed that you will not be paying the rent.
I do understand you were unhappy having issues arising so early on in the tenancy and I did try to work with your request – please do let me know if you need any further information or if there is anything you would like to discuss further please contact me either in the office or reply via email.
Hi Cherelle,
Thank you for getting back to me.
I have read what you have said, however as I mentioned to you over the phone and in an email, I signed the tenancy based off the fact that these issues were not apparent or logged in your inventory list. Therefore I signed this based off of false information. And if these are things you are still looking into, then they are all not dealt with. No one called me or emailed me to tell me any issues were dealt with or that they were being looked into.
As stated by the solicitor I have spoken to and also by your tenancy agreement itself, I can terminate my contract within a month if the property is deemed uninhabitable. Because it is infact deemed uninhabitable and until they are fixed, this property should not really be back on the market.
Upon speaking with the landlord last week when I made him aware of the sewage issue, he then said he would have to get a professional plumber in. That tells me that the plumber he originally brought in that clearly did not fix the issues properly, was not professional. When I mentioned this issue to you, the landlord then accused me of going behind his back.
Any decision I have made has been based off of legal advice.
If your position is that you say I am still required to pay rent, then I request that you give me the keys back today so that I can organise a HHSRA inspection and professional plumber to provide reports in respect to the drainage and I will be seeking damages and an order that the property is uninhabitable.
In regards ***** ***** partner, we considered him coming on the tenancy only a week or so into me receiving the keys and then all these issues occurred, so just as well it didn’t happen, because he does not want to live in that condition either.
I signed a tenancy, however so did the landlord and the standards that were supposed have been met, unfortunately were not. I did my part and I am very stressed and disappointed at this point.
I look forward to hearing from you very soon
Expert:  Joshua replied 18 days ago.

Thank you for the update

Customer: replied 18 days ago.
No worries, I’ll please let me know your thoughts. Thank you again
Expert:  Joshua replied 18 days ago.

the position seems very much as we discussed above that the landlord intends to attempt to hold you to the contract until such time as they find a replacement. This being the case, may need to give some consideration to some of the actions and steps that we discussed above, in particular obtaining evidence to support a claim of the property is uninhabitable which is generally demanding of a relatively high standard of proof

Customer: replied 18 days ago.
I understand. I mean I have photos of the yellow water in the bath and the water coming up through the floor boards. I also did a check of the property online and the landlord had built an extension to this property unlawfully without getting permission. He was taken to court and fined because he was renting it out even though they said he couldn’t. The particular flat that I’m in, he did had to appeal do an appeal and I believe from what I’ve read it may have been granted but in the decision, the concern was that there would be issues with sewage and flooding, which is the issues I had
Expert:  Joshua replied 18 days ago.

thank you. It certainly seems you have the basis for a claim I do not mean to suggest you don't will be excessively pessimistic. I'm to be concerned that you do not underestimate the what you need to show. Certainly if there is raw sewage seeping into the property or you are exposed to raw sewage underneath the floor boards, this presents a potentially strong case for the property being uninhabitable. I think some further evidence gathering is required in order to establish a position with little more certainty and the council's environment and health, maybe very helpful in this regard