L and T agree an early surrender; can L now re-let?

[forumuser]

Hi,

I hope you fine people can give me some help with a tenant of mine.

Tenant wanted to end AST 6 months early. I agreed that this was OK on the condition that T paid costs in finding replacement and any deficit in Rent for the next 6 months (rents have dropped in my area). I have consistently made it clear that the original contract would only be surrendered once a new tenant was found and the replacement costs paid by T.

T has been arguing these costs with myself and my agent and meanwhile we have found a potential replacement who is currently being reference checked. However, T now considers that a replacement has been found (despite no agreement being reached regarding replacement costs, nothing signed and the replacement not having yet passed referencing checks). T has now moved out (has not returned keys) and underpaid the rent such that it only covers the rent due IF the new tenant was to move in. T has not paid anything towards the other costs of finding a new tenant (Check Out, rent deficit etc.) so I consider the original contract still valid and not surrendered. I also consider T to be in default since T has underpaid this months rent.

I want the current T out and the new T in. However, I am wary of releasing the current T from the contract in case this makes it impossible for me to subsequently claim the costs getting a replacement in. Does surrendering a contract mean that T is no longer liable for these costs? Can I phrase the document surrendering the tenancy in such a way that it is clear that T still owes me money. Does anyone have any other advice? Maybe I can then claim these costs from the Deposit (which is in the TDS scheme)? Or in a small claims court? I know I can just demand the tenant stay and pay the rent, but I would rather get a new and less difficult T in.

Many thanks in advance,

[jeffrey]

IF you accept T1's surrender (which you do not have to do), you end T1's liability for future rent.
Until then (or until a deemed surrender (by T1) on you re-letting (to T2)), T1 remains liable. T1 is thus liable whether still residing or gone.

[forumuser]

Many Thanks for the quick reply Jeffrey. However, I'm confused about a couple of things...

1. What is a deemed surrender? Is that when I re-let the property out to another tenant? I don't understand how I can legally do that. Neither I nor the tenant has signed a document surrendering the contract so surely T has the right of access to the property until such a document is signed, T is evicted or the fixed term expires?

2. What I am really interested in is getting the current tenant to pay the costs of getting a replacement in. T has already paid rent up to the replacement's (provisional) move in date. I think T is happy to do that, the problem is getting T to pay the other costs (which including the rent deficit are not inconsiderable). I would like to release T from contract. Preferably after T has paid the replacement costs. However, if T refuses to pay these costs my question is can we sign a document surrendering the tenancy (i.e. T is no longer liable for rent form the date of surrender) but insisting that T is legally liable for the costs of the replacement.

[jeffrey]

If T1 accepts (tacitly) that you are free to re-let (e.g. T1 agrees how much is payable to/by him, and it's paid), that effectively amounts to a surrender by the parties' actions. Clearly there are dangers (e.g. if T1 turns round and claims that his tenancy is still running, for instance).