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View Full Version : Making a Small Claim against ex tenants - What can they say in defence?



Tfish
16-01-2009, 22:07 PM
IV put a small claim in for 6 months rent owed when a T left a 12 month AST halfway through.

I used to get him to pay the rent into my bank account using my paying in book which I left with him, the flat has been checked out and has safety certs no deposit was taken.

The only thing I can think of is there was no "rent book", well there was but it was left in his possession and was stopped being of use when we started the paying book method.

Just wondering what he might say in defense as no doubt some sob story will be made up..

johnboy
16-01-2009, 22:38 PM
you only had to supply a rent book if the rent was due weekly. Also you may have to prove to have been trying to get another tenant, adverts etc. you cant just sit back for 6 months and do nothing about getting a new tenant because you know they are liable.

Beeber
17-01-2009, 15:02 PM
I agree with John Boy that it is up to the landlord to mitigate their losses by reletting the property when its back in their possession. If I remember correctly, landlords can also include in the claim any expenses associated with the re-let, such as advertising costs.

If you re-let the property in the 6 month period that remained on the contract, then I don't believe that you can include the period in which you received rent from new tenants.

Poppy
17-01-2009, 15:10 PM
When did your tenant depart? Are you actively trying to re-let the property?

Preston
17-01-2009, 16:07 PM
I agree with John Boy that it is up to the landlord to mitigate their losses by reletting the property when its back in their possession. If I remember correctly, landlords can also include in the claim any expenses associated with the re-let, such as advertising costs.

If you re-let the property in the 6 month period that remained on the contract, then I don't believe that you can include the period in which you received rent from new tenants.

Hi

I'm don't think it is true that the landlord must mitigate any losses during the fixed period.

The key points as I understand them:


1. Rent is payable by midnight of the day on which it is due (unless the lease requires payment earlier in the day). Thereafter, the rent is in arrears.

2. Once the rent is due or has been paid, where the liability or payment is in advance, there is no statutory or common law obligation on the landlord to refund any of the rent paid if the tenant chooses to give up possession before the end of the rental period.

3. If the landlord forfeits the lease or accepts a surrender or notice from the tenant, it is highly unlikely that he or she may claim any rent for the period after the tenancy has ended (unless it fell due before the tenancy ended as described under 1 above).

3. However, the landlord is under no obligation to accept a surrender during the period of the lease, nor to

4. mitigate any potential losses for the tenant by, for example, finding another tenant to replace them (Reichman v Beveridge, 2006).

5. There is a remote possibility that there could be some limitation on the law of surrender along the lines outlined in Highway Properties Ltd v Kelly, Douglas & Co Ltd (1971).

"[the landlord] may advise the tenant that he proposes to re-let the property on the tenant's account and enter into possession on that basis"

with the effect that the landlord can enter into possession and the tenant can be sued for the rent unless or until a replacement tenant is found, up to the extent of their liability under the original lease, provided the above advice has first been given.

However, according to the judge in Reichman, this principle has never been relied upon in the English Courts, although it has been made use of in other commonwealth jurisdictions.

6. On the other hand, it is very clearly open to the landlord, if he or she wishes to do so, to market the property (without accepting a surrender by entering into possession) and then to accept a surrender once a suitable replacement tenant has been found. In this way, they can continue to demand rent as it falls due for the remainder of the fixed period.

Preston

mind the gap
17-01-2009, 16:39 PM
This issue (LL's obligation - or - not - to mitigate losses) has been discussed a number of times on LLZ; doesn't it depend on why the tenant left in the first place?

OP says T left 'half way through' a 12 month AST, but does not say whther he had to evict him using a s8, for example, or whether there was a break clause, or whether T just abandoned property and paid no more rent, or whether a surrender was agreed and signed.

Until we know, is it possible to be clear about LL's obligation re mitigating losses?

Preston
17-01-2009, 17:37 PM
This issue (LL's obligation - or - not - to mitigate losses) has been discussed a number of times on LLZ; doesn't it depend on why the tenant left in the first place?

OP says T left 'half way through' a 12 month AST, but does not say whther he had to evict him using a s8, if evicted, then no continuing rent liability for the tenant following eviction for example, or whether there was a break clause, if tenant exercised a break clause, then no continuing rent liability after this event or whether T just abandoned property and paid no more rent, or whether a surrender was agreed and signed. and its these last two possibilties that my note is really trying to address - in other words, has a surrender been agreed or not, because whether or not it has could form a key part of the tenants defence

Until we know, is it possible to be clear about LL's obligation re mitigating losses?

Hi,

One scenario is that the landord has accepted a surrender (perhaps be operation of law and perhaps without realising the consequences) which could have a major impact on his or her ability to recover the rent for the remainder of the fixed period.

So, I agree with you, Tfish would be well advised to think through exactly what happened when the tenant left. If he or she cares to leave a few more details I'm sure more advice will be given.

Preston

mind the gap
17-01-2009, 17:44 PM
Actually... having just realised that this is the poster who insulted all of us Senior Members so graphically last week (his offensive remarks about us have now been removed by the Moderator, but as far as I am aware he is unapologetic), I don't think I'll bother!

Tfish
19-01-2009, 23:47 PM
When did your tenant depart? Are you actively trying to re-let the property?

Tenants left in Nov I am not actively trying to relet property becasue T's left the Property half wallpapered and in a mess I have no time to redocorate at the minute as I am busy refurbing another property that is on a timescale

Tfish
19-01-2009, 23:50 PM
OP says T left 'half way through' a 12 month AST, but does not say whther he had to evict him using a s8, for example, or whether there was a break clause, or whether T just abandoned property and paid no more rent, or whether a surrender was agreed and signed.

Until we know, is it possible to be clear about LL's obligation re mitigating losses?


Tenant simply abandoned the building leaving keys with neighbour and sent me text saying he was leaving, no reason given, he was a couple of weeks behind the rent