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vix1057
31-03-2009, 22:43 PM
Hi, i hope you can help (sorry if it's a bit long)

I have been living in a student house with four other housemates since july 08. Having lived together for a few months, we decided that we were happy to all live together in the same house next year, and have therefore signed a new agreement for next year, for which we have paid in total £1,000 deposit. We are joint and severally liable, and it is a standard contract which the university has provided for our landlord.

Three weeks after signing the contract, one housemate decided that she had changed her mind and is going to move out. We have been given the option by the landlord of finding one person to replace her, or finding five people to replace us all. We have been trying since before Christmas, and it's looking increasingly unlikely as the year progresses. She has told us that the first person we find who wants to live here (even if they are completely awful) she expects us to sign to change her name over. I know that she can't force us to do so, but would this count against us should this end up going to court?

She has indicated that she is doing everything in her power to get out of the contract, and seems to think that there may be a way for her to do so after having consulted with her father (who is a solicitor). I personally don't see how, since this contract was written by the university itself and the agency we used is reputable. I'm a little unsure of our options. The deposit is a lot of money which we can't afford to lose. I understand the consequences of being joint and severally liable should she refuse to pay any rent, as is she, but is it likely that she will be able to back out of the contract given that it has not commenced yet (although we are technically in possession of the house at the moment for this year's lease)? I am unclear as to how things stand with backing out from leases when only the deposit has been paid.

I would be grateful for any advice that you can give, as I'm sure you can understand this is a very stressful situation for us all!

Many thanks

mind the gap
31-03-2009, 22:56 PM
Hi, i hope you can help (sorry if it's a bit long)

I have been living in a student house with four other housemates since july 08. Having lived together for a few months, we decided that we were happy to all live together in the same house next year, and have therefore signed a new agreement for next year, for which we have paid in total £1,000 deposit. We are joint and severally liable, and it is a standard contract which the university has provided for our landlord.

Three weeks after signing the contract, one housemate decided that she had changed her mind and is going to move out. We have been given the option by the landlord of finding one person to replace her, or finding five people to replace us all. We have been trying since before Christmas, and it's looking increasingly unlikely as the year progresses. She has told us that the first person we find who wants to live here (even if they are completely awful) she expects us to sign to change her name over. I know that she can't force us to do so, but would this count against us should this end up going to court?

She has indicated that she is doing everything in her power to get out of the contract, and seems to think that there may be a way for her to do so after having consulted with her father (who is a solicitor). I personally don't see how, since this contract was written by the university itself and the agency we used is reputable. I'm a little unsure of our options. The deposit is a lot of money which we can't afford to lose. I understand the consequences of being joint and severally liable should she refuse to pay any rent, as is she, but is it likely that she will be able to back out of the contract given that it has not commenced yet (although we are technically in possession of the house at the moment for this year's lease)? I am unclear as to how things stand with backing out from leases when only the deposit has been paid.

I would be grateful for any advice that you can give, as I'm sure you can understand this is a very stressful situation for us all!

Many thanks

If you have signed the tenancy agreement and paid a deposit, then it is likely you have created a joint tenancy from which you cannot back out, unless, as you suggest, another tenant or gorup of tenants is found.

The loophole the departing tenant may be hoping to exploit is that no more than the first four individuals may be named as joint tenants in an AST. Any additional people are 'permitted occupiers'. I have been given to understand from this forum that the fifth and subsequent persons may nonetheless be held responsible for rent, etc., but I have never been able to establish what this means in practice. Where does her name feature in the list of supposed tenants on the agreement? Is it the first name, the second, or what? If she is not the fifth tenat named, I would assume she can be held jointly and severally liable, but it would be the LL who would have to puruse her for the rent in the first instance.

Personally, I think your best option is to advertise very actively for a replacement tenant. Put an ad on accommodationforstudents.com; it's cheap/free and we have always had an excellent response when seeking an individual 'replacement' student as you are doing. Also, contact your Uni Accommodation Office, who will have a list of individuals seeking a room in a shared house. Now is not the best time of year to find one, but lots more start coming out of the woodwork around June/July/August. Don't panic. There are lots of first years who plan to live at home and then can't stand the restrictions and decide in Augsut to live 'out' - you may well get one of those by advertising in your Student Union, newsagents, etc.

Good luck.

Bel
01-04-2009, 09:21 AM
Obviously you are feeling very confused about it and this is providing a foothold for the deserter to play it her way.

You need to be committed to the tenancy in your own mind first. Then communicate this commitment to her that the tenancy is going ahead with or without her. She made a commitment to your group which you relied on and she must cover your losses. Make it that it is between you and her and NOT the LL.

The options are:
She must find a 5th person at her cost
or pay the rent

Draw up a list of reasonable attributes you expect from a suitable replacement, without being too picky. A list of house-rules would also be helpful so that the tenant knows what kind of behaviour you expect (over-night guests, how bills are paid, keeping the kitchen tidy) That way, you can show that you are not being unreasonably obstructive when selecting a new tenant. I suspect the agent will want to reference them too?

If she refuses you could always try a claim against her through the courts for any loss.




Get advice from your accomodations office or CAB about her liability

vix1057
01-04-2009, 15:38 PM
Thanks for your replies. I'll put up an advert today on the website you suggested.

Wickerman, we're in sheffield.

The list for the housemate sounds good, that way we can show her that we're not being difficult and it means we're more likely to find someone we're all comfortable with.
I'm still hoping that we can get a group of five, though. If we knew she was moving out earlier we would never have even considered staying here and living with a stranger in our final year. In fact, we have a house for four of us that we would love to move into, but of course we can't unless we can replace all of us. I suppose living with a stranger is better than going to court, so we'll have to suck it up and try our best.
Thanks again

Bel
01-04-2009, 18:18 PM
Thanks for your replies. I'll put up an advert today on the website you suggested.

Wickerman, we're in sheffield.

The list for the housemate sounds good, that way we can show her that we're not being difficult and it means we're more likely to find someone we're all comfortable with.
I'm still hoping that we can get a group of five, though. If we knew she was moving out earlier we would never have even considered staying here and living with a stranger in our final year. In fact, we have a house for four of us that we would love to move into, but of course we can't unless we can replace all of us. I suppose living with a stranger is better than going to court, so we'll have to suck it up and try our best.
Thanks again

I can understand that you do not wish to share with a stranger.

You may be entitled to hold your ground and insist she pays the full wack with no new replacement but you would need to get good legal advice (not from her Dad !!).

In a joint tenancy, none of the joint tenants has the 'right' to terminate the tenancy before the end of the fixed term.

In some cases, a court may require a LL to mitigate any 'loss' of the tenant that wants to leave early, by reletting as soon as possible, although a recent court case went against this assumption.

Anyway, you are not a LL, so you may be within your rights NOT to find a new person and keep her accountable for her share of the rent. She's messed you around so why should you suffer. But you may not want to live with the bad feeling this may create. SO a compromise may be best if the new T fits within your criteria.

vix1057
17-04-2009, 14:59 PM
Hi again

We're still looking for a housemate, but there's been no real bites so far...

I got a call from the girl who is leaving, who said that her Dad has looked at the contract (she had the copy so I have to take her word for it) and he noticed that the landlord himself hadn't signed it. We have never dealt with the landlord personally, it has always been the letting agency.

When she went to the agency to talk about this further, they (allegedly) realised their mistake, snatched the contract off her and had the landlord who happened to in the office at that point sign it there and then. It also became clear that the agency hadn't told the landlord until then what the situation was (but he did know right before signing the contract).

Would this then make the contract void? We informed the letting agency before Christmas of the situation, so although we had signed the contract we affectively rescinded that before it had been finalised. What would you recommend that we do? Should we put into writing everything that has passed, stating that as the contract was not signed until after we changed our mind we do not believe it is valid, and asking them to return our deposits? What if they refuse, given that we ourselves signed months ago?

Sorry for the many questions, the Student Advice Centre has refused to give us anything other than generic advice to keep advertising as the girl went to them first, so any information they give to us is a conflict of interest. They only refer us to other advice centres if this goes to court :(

Thanks again

thevaliant
17-04-2009, 15:24 PM
You've paid rent - The contract is therefore valid.

MrJohnnyB
17-04-2009, 16:16 PM
As the above says, if you take posession of a property knowing the key ingredients of the lease term then the landlord simply not signing it, does not make the tenancy null and void, as the contractual terms have been set out in the document, the physical act of paying rent and supplying you keys shows both parties acceptance of said contract. I would have thought the girls father is not a property solicitor by the sounds of things (i would have thought any half decent solicitor would have some inclination of basic contract law though!)

Bel
17-04-2009, 20:34 PM
Like I said before; make her responsible.

She is the cause of your agro and must remedy the situation. Its her choice to either find you a suitable replacement or indemify you for any loss if it should go to court if you all decide to abandon the lease.

Or get her Dad to pay you for consulatation with a housing law solicitor.
He is looking after his daughter and NOT you at the moment.

Preston
18-04-2009, 23:13 PM
Hi

As I understand it, five of you have signed a tenancy agreement for a tenancy that will not start until next year - I assume you mean academic year, so September or October 2009? You paid a deposit but the document wasn't signed by the landlord until some time later; I'm unclear as to whether you indicated you wish to withdraw before the landlord signed?

Now, I should say that based on some previous discussions, some eminent and qualified contributors to this site may disagree with me on this point, but I think your fellow, prospective joint tenant may indeed by able to back out of the agreement.

If the original agreement was not in the form of a deed, then it may be good as a contract but it does not of itself create a tenancy. The latter is created – or takes effect – on possession i.e. when the tenant takes possession of the premises. If your friend has clearly indicated that she does not wish to be party to the agreement and does not move in – or move back in – with the rest of you when the new tenancy commences, then she is arguably not part of the entity giving effect to the tenancy and so will not be part of the joint tenancy when it is created. (Furthermore, if none of you move in, the landlord’s remedy is an order for specific performance but, this being a discretionary remedy, it is not guaranteed.)

Your friend’s position may be strengthened by the fact that, in law the maximum number of joint tenants is four. It is possible for a larger number of people to be treated as joint tenants – what are known as equitable tenants rather than legal tenants. Although they do not have the full legal status of tenants, they could in theory have all the same rights and responsibilities of a tenant. Normally, if an agreement is signed by five or more tenants, the first four will be regarded as the legal tenants and the fifth and subsequent signatories, potentially, as equitable tenants. However, whether or not the fifth signatory is treated in this way is, again, not a given and will depend upon the circumstances. If that person makes their position clear and does not move in whilst the other four do, the court may take the view that there are just four joint tenants.

I am not saying the above argument is certain, simply that it is a possibility and indeed sufficiently credible to represent a real risk for you and those of you who do intend to move in; the last thing you want, I imagine, is to have to pay the fifth person’s share of the rent (although as you know, all joint tenants are jointly and severally liable for the full amount of the rent in any case).

So, sorry to be a little negative about this one, but if the fifth person really isn’t going to move in, I wouldn’t plan on being able to hold them to the agreement and I would either a) aim to renegotiate the whole agreement with the landlord or b) find a fifth replacement person, with a strong preference for option (a).

Anyway, I hope others will give their views on the argument outlined.

Preston

Bel
19-04-2009, 09:27 AM
Because they already live there, they already possess the property. SO will moving out by the end of the fixed term allow them to abandon the second tenancy?


If that person makes their position clear and does not move in whilst the other four do, the court may take the view that there are just four joint tenants.





For me, the question is, if the tenancy agreement is seen to be binding on at least the 4 tenants who signed first, and assuming the girl that wishes to leave is the fifth, although she is not bound to the tenancy agreement as such (and has no liability to LL), her action will result in a possible financial loss if a fifth cannot be found and loss of "ammenity" if the others need to accept a stranger in her stead, for which she should be morally liable to compensate her fellows.
What legal strategy can her fellows use to claim from her, in theory??

Proper legal advice is required as there are too many ifs and buts.

vix1057
22-04-2009, 15:30 PM
Thanks again for your help.

So, basically even if the LL signed the contract AFTER we had told him we had changed our mind (which was the case, yes)his signature is really irrelevant as the fact that we have signed the contract is our acceptance of his terms (even if the contract wasn't drawn up by him personally) and the payment of deposit acts as consideration?

She is, I believe, the second or third person on the contract anyway.

That's all I was wondering, then. Was hoping that the LL's signature after we had expressed that we no longer wanted to go ahead would give us some leverage to all be able to move out but it would seem not.

As advised, we are still looking for a fifth person to replace her, which I am sure we will be able to do. Not the ideal option though...

Thanks again

MHavana
27-05-2009, 14:04 PM
Good afternoon,

I'm really glad I came across this thread as the subject of permitted occupants is one which I am currently researching. I have recently completed a detailed unit on Contract Law, although this case is not as straightforward as it may seem; I will explain my views on your situation below:

(Point 1) The tenancy that you are currently contracted under on the house is totally separate from the proposed future tenancy; so this is not affected in this situation.

(Point 2) In regards to the new tenancy for next year, the Law of Contract states that there needs to be an Offer, Acceptance and Consideration to form a contract.

The price of a property is not an offer, but simply an 'invitation to treat', i.e. essentially the landlord / agent will set a price for the property, with a view for that price to be negotiated with an offer from a potential tenant.

Once you expressed a wish to rent the property (I assume that you did not negotiate on the price), that would have constituted as an Offer on your part.

If it had been a private landlord you were dealing with (i.e. not through an agent), he would have had three options:

(a) to accept your offer
(b) to reject your offer
(c) to issue a counter-offer

If he had accepted your offer, you could have provided the final part of the contract by a form of Consideration (by signing a new tenancy agreement, effectively meaning 'I promise to rent the house from you'). This would have constituted a legal Contract; enforceable in English Law. Without consideration, it would only constitute a 'gratuitous promise', which in unenforceable in English Law.

However, the invitation to treat (advert for the property) must have stated the amount of deposit due along with the rent. If he had accepted your offer without the deposit previously being communicated via the advert, then he could not have legally demanded a deposit from you in addition, as he would have accepted the offer in reflection of the invitation to treat. This is because acceptance must correspond exactly to the terms of the offer in order for it to be valid (referred to as the ‘mirror image’ rule); otherwise it as seen as a counter-offer (see later).

For example:

(i) If he had just advertised: 5 bed house at £1500pcm, and you offered £1500pcm on the basis of that, and he accepted your offer, then that would be the terms of the contract, and he could not later demand a deposit from you, whereas...
(ii) If he advertised: 5 bed house at £1500pcm plus £2000 deposit and you offered £1500pcm plus £2000 deposit on the basis of the advert, and he accepted, then that would be the terms of that contract.

If he had rejected your offer, then obviously there would be no contract

If he had issued a counter offer of a higher / lower price, then the original offer is void and he cannot then revert back to your original offer. If you had replied to his counter offer with another counter-offer, then his original counter-offer is void. This process continues until a ‘Consensus Ad Idem’ (i.e. ‘meeting of minds’ has been reached).

Acceptance of an offer has no effect until it’s communicated to the Offeror (the person who made the offer, i.e. you as the tenant). Furthermore an offer may be withdrawn at any time prior to acceptance (‘Revocation’), and must be communicated to the Offeree (the person to whom the offer is directed).

So in relation to your situation, Prima Facie it would appear that a contract did not exist at the point at which you initially agreed to take on the new tenancy, as the Landlord was unaware of the offer and therefore could not accept it.

However, in your situation, the Contract of Agency applies. In this situation, the Agent makes a contract on behalf of the Principle (the party upon whom the benefit of the contract is transferred, in this case the Landlord), and with the third party (i.e. you as the tenant). The effect of this means that the agent has the authority to form a contract on behalf of the Landlord, and the Landlord then ‘Ratifies’ the agreement by signing it or verbally agreeing to it, effectively ‘releasing’ the liability of the agent.

In your case, it seems that although the Landlord had not yet officially ratified the agreement (i.e. he had not yet agreed the contract, by either verbally agreeing to it or physically signing the contract), his swift action of signing the contract when it was brought in suggests that he would testify that he ratified the agreement verbally with the agent, and there would be no way of disproving that.

Therefore, the action of the girl going into the office disputing the legality of the contract ironically ‘strengthened’ the contract against you as tenants, by inadvertently letting the Landlord officially ratify the agreement. You could have revoked the offer up to that point, however by signing the agreement, he ratified it, meaning he accepted it and therefore the offer can no longer be revoked. Unfortunately therefore, as far as the contract goes, you seem to be bound by the terms agreed within the tenancy agreement, and are liable to pay the rent for the property.

For future reference, you should ideally not sign a tenancy agreement (and pay any full deposit due) until the day that you are to move in to the property and you are certain that the property is fit for habitation. This is usually what happens in the process of letting a property, where you simply pay an initial ‘holding deposit’ (around £100 per person) to make clear your intentions of renting the property. You would usually then sign a declaration which would form a separate contract in itself, where you agree that the holding deposit will be lost if you decide to pull out of renting the property, or fail relevant credit checks.

So to summarise so far – it would seem that you are now liable for the rent due under the new contract.

(Point 3) The subject of credit checking / references brings me back to the original subject of Offer and Acceptance. Acceptance must not be conditional, otherwise it effectively forms a counter-offer; so depending on your present situation, this is where you may be in luck...

If the agent has mentioned to you or written anywhere that the contract is ‘subject to satisfactory references / credit check / something similar’, then the contract would be void, as their acceptance is made conditional by saying that it’s ‘subject to...’

Therefore, irrespective of whether you have all signed the agreement, if it is ‘subject to...’, I would suggest that it would not stand up in Court.

(Point 4) On the subject of Permitted Occupants; a Permitted Occupant has no legal responsibility in Law to the Landlord or anyone else. If there are 4 or more sharers of a property, the first 4 signed names are ‘jointly and severally liable’, and the 5th and subsequent persons have no legal responsibility to pay rent (although they would be expected to act in a ‘tenant like manner’ in regards to their conduct whilst living in the property).

For the first 4 shares who are ‘jointly and severally liable’, it means that if one person out of the first 4 signed names leaves, then the other 3 are liable to make up the shortfall in rent. So in your situation, the girl could leave without paying, and the Landlord would either have the choice of pursuing her through the courts, or pursuing you (and / or the other two) through the courts. I would suggest that he would most likely pursue you and / or the other two, as it’s a lot easier (as he knows where you live for a start!). It would be then down to you and / or the other two to pursue the girl yourself through the courts for her part of the rent (which would most likely be a successful claim as she is one of the first 4 names, and is therefore legally a tenant).

Admittedly it will be a hassle, and you and the landlord both also have a ‘duty to mitigate’ (limit) potential losses (i.e. find someone else to go in her place). Having said that, you and the landlord only have to prove that you made a ‘reasonable’ attempt, so if the Landlord finds someone and you have no real reason not to accept him / her other than you don’t like them, you will probably find that he will then have been seen as having made a ‘reasonable’ attempt to mitigate.

I hope my views and opinions above have been helpful to you, although due to the complexity of the case, it would be advisable to seek legal advice from a firm specialising in Property and / or Contract Law (which may be free in the form of ‘legal aid’ if you are a student anyway).

Good luck!

Miles Havana

jeffrey
27-05-2009, 14:46 PM
Sorry but far, far too long to digest before constructing a meaningful reply.

Paul Gibbs
27-05-2009, 16:04 PM
did they just copy and paste the detailed unit?

Bel
27-05-2009, 18:05 PM
Good afternoon,

I'm really glad I came across this thread as the subject of permitted occupants is one which I am currently researching. I have recently completed a detailed unit on Contract Law, although this case is not as straightforward as it may seem; I will explain my views on your situation below:

(Point 1) The tenancy that you are currently contracted under on the house is totally separate from the proposed future tenancy; so this is not affected in this situation.

(Point 2) In regards to the new tenancy for next year, the Law of Contract states that there needs to be an Offer, Acceptance and Consideration to form a contract.

The price of a property is not an offer, but simply an 'invitation to treat', i.e. essentially the landlord / agent will set a price for the property, with a view for that price to be negotiated with an offer from a potential tenant.

Once you expressed a wish to rent the property (I assume that you did not negotiate on the price), that would have constituted as an Offer on your part.

If it had been a private landlord you were dealing with (i.e. not through an agent), he would have had three options:

(a) to accept your offer
(b) to reject your offer
(c) to issue a counter-offer

If he had accepted your offer, you could have provided the final part of the contract by a form of Consideration (by signing a new tenancy agreement, effectively meaning 'I promise to rent the house from you'). This would have constituted a legal Contract; enforceable in English Law. Without consideration, it would only constitute a 'gratuitous promise', which in unenforceable in English Law.

However, the invitation to treat (advert for the property) must have stated the amount of deposit due along with the rent. If he had accepted your offer without the deposit previously being communicated via the advert, then he could not have legally demanded a deposit from you in addition, as he would have accepted the offer in reflection of the invitation to treat. This is because acceptance must correspond exactly to the terms of the offer in order for it to be valid (referred to as the ‘mirror image’ rule); otherwise it as seen as a counter-offer (see later).

For example:

(i) If he had just advertised: 5 bed house at £1500pcm, and you offered £1500pcm on the basis of that, and he accepted your offer, then that would be the terms of the contract, and he could not later demand a deposit from you, whereas...
(ii) If he advertised: 5 bed house at £1500pcm plus £2000 deposit and you offered £1500pcm plus £2000 deposit on the basis of the advert, and he accepted, then that would be the terms of that contract.

If he had rejected your offer, then obviously there would be no contract

If he had issued a counter offer of a higher / lower price, then the original offer is void and he cannot then revert back to your original offer. If you had replied to his counter offer with another counter-offer, then his original counter-offer is void. This process continues until a ‘Consensus Ad Idem’ (i.e. ‘meeting of minds’ has been reached).

Acceptance of an offer has no effect until it’s communicated to the Offeror (the person who made the offer, i.e. you as the tenant). Furthermore an offer may be withdrawn at any time prior to acceptance (‘Revocation’), and must be communicated to the Offeree (the person to whom the offer is directed).

So in relation to your situation, Prima Facie it would appear that a contract did not exist at the point at which you initially agreed to take on the new tenancy, as the Landlord was unaware of the offer and therefore could not accept it.

However, in your situation, the Contract of Agency applies. In this situation, the Agent makes a contract on behalf of the Principle (the party upon whom the benefit of the contract is transferred, in this case the Landlord), and with the third party (i.e. you as the tenant). The effect of this means that the agent has the authority to form a contract on behalf of the Landlord, and the Landlord then ‘Ratifies’ the agreement by signing it or verbally agreeing to it, effectively ‘releasing’ the liability of the agent.

In your case, it seems that although the Landlord had not yet officially ratified the agreement (i.e. he had not yet agreed the contract, by either verbally agreeing to it or physically signing the contract), his swift action of signing the contract when it was brought in suggests that he would testify that he ratified the agreement verbally with the agent, and there would be no way of disproving that.

Therefore, the action of the girl going into the office disputing the legality of the contract ironically ‘strengthened’ the contract against you as tenants, by inadvertently letting the Landlord officially ratify the agreement. You could have revoked the offer up to that point, however by signing the agreement, he ratified it, meaning he accepted it and therefore the offer can no longer be revoked. Unfortunately therefore, as far as the contract goes, you seem to be bound by the terms agreed within the tenancy agreement, and are liable to pay the rent for the property.

For future reference, you should ideally not sign a tenancy agreement (and pay any full deposit due) until the day that you are to move in to the property and you are certain that the property is fit for habitation. This is usually what happens in the process of letting a property, where you simply pay an initial ‘holding deposit’ (around £100 per person) to make clear your intentions of renting the property. You would usually then sign a declaration which would form a separate contract in itself, where you agree that the holding deposit will be lost if you decide to pull out of renting the property, or fail relevant credit checks.

So to summarise so far – it would seem that you are now liable for the rent due under the new contract.

(Point 3) The subject of credit checking / references brings me back to the original subject of Offer and Acceptance. Acceptance must not be conditional, otherwise it effectively forms a counter-offer; so depending on your present situation, this is where you may be in luck...

If the agent has mentioned to you or written anywhere that the contract is ‘subject to satisfactory references / credit check / something similar’, then the contract would be void, as their acceptance is made conditional by saying that it’s ‘subject to...’

Therefore, irrespective of whether you have all signed the agreement, if it is ‘subject to...’, I would suggest that it would not stand up in Court.

(Point 4) On the subject of Permitted Occupants; a Permitted Occupant has no legal responsibility in Law to the Landlord or anyone else. If there are 4 or more sharers of a property, the first 4 signed names are ‘jointly and severally liable’, and the 5th and subsequent persons have no legal responsibility to pay rent (although they would be expected to act in a ‘tenant like manner’ in regards to their conduct whilst living in the property).

For the first 4 shares who are ‘jointly and severally liable’, it means that if one person out of the first 4 signed names leaves, then the other 3 are liable to make up the shortfall in rent. So in your situation, the girl could leave without paying, and the Landlord would either have the choice of pursuing her through the courts, or pursuing you (and / or the other two) through the courts. I would suggest that he would most likely pursue you and / or the other two, as it’s a lot easier (as he knows where you live for a start!). It would be then down to you and / or the other two to pursue the girl yourself through the courts for her part of the rent (which would most likely be a successful claim as she is one of the first 4 names, and is therefore legally a tenant).

Admittedly it will be a hassle, and you and the landlord both also have a ‘duty to mitigate’ (limit) potential losses (i.e. find someone else to go in her place). Having said that, you and the landlord only have to prove that you made a ‘reasonable’ attempt, so if the Landlord finds someone and you have no real reason not to accept him / her other than you don’t like them, you will probably find that he will then have been seen as having made a ‘reasonable’ attempt to mitigate.

I hope my views and opinions above have been helpful to you, although due to the complexity of the case, it would be advisable to seek legal advice from a firm specialising in Property and / or Contract Law (which may be free in the form of ‘legal aid’ if you are a student anyway).

Good luck!

Miles Havana

You say LL / tenants hve a duty to mitigate: on what do you base this?

MHavana
29-05-2009, 13:12 PM
Sorry but far, far too long to digest before constructing a meaningful reply.

Jeffrey, I am simply giving a detailed opinion on the overall situation; something that you clearly not able or willing to provide. My comments are directed at the user who posted the original question; I am not seeking a reponse from you. Kindly refrain from unneccessary derogatory comments and contribute productively to the discussion if you so wish.



did they just copy and paste the detailed unit?

As I said I have recently completed a unit on Contract Law and basing my opinons on matters that I have recently been taught. In answer to your question - no it is not copied from any other source.

I joined this site to contribute my view on a subject and to try and help out - but what a couple of pompous a**eholes you both are! I dearly hope you are not both representative of the general membership of this site nor your respective employers - that would be a sad thing.

Maybe you should both try and get some work done instead of scouring forums and you may find that you no longer feel the need to try and put other people down to make yourself feel better - work on that self esteem!



You say LL / tenants hve a duty to mitigate: on what do you base this?

I was taught that the duty to mitigate is a principal of Contract Law where the innocent party on the receiving end of the breach has a duty to mitigate the extent of their loss arising from the breach. (see Brace v Calder [1895] 2 QB 253, or Pilkington v Wood [1953] 2 All ER 810).

westminster
29-05-2009, 14:24 PM
Admittedly it will be a hassle, and you and the landlord both also have a ‘duty to mitigate’ (limit) potential losses (i.e. find someone else to go in her place). Having said that, you and the landlord only have to prove that you made a ‘reasonable’ attempt, so if the Landlord finds someone and you have no real reason not to accept him / her other than you don’t like them, you will probably find that he will then have been seen as having made a ‘reasonable’ attempt to mitigate.


I don't see how the LL has any 'duty to mitigate potential losses'?

1) There is no loss until T does not pay rent in full when it falls due
2) LL cannot reasonably be expected to anticipate losses which have not yet occurred - T could easily find a fifth T to share before commencement of tenancy, or get a part-time job in McDonald's to cover the extra rent, or borrow it from their Dad
3) T obviously has the right to refuse to live with random fifth T found by the LL, therefore LL has no control over 'mitigating' his 'potential' losses, so how can he 'attempt' to do so?
4) How can LL be held in any way liable for T's breach of the obligation to pay rent??
6) LL could only mitigate his losses once he had regained possession of the property, and after actually suffering the loss.

Moreover, where is the T's 'duty to mitigate potential losses'? T is simply contractually obliged to pay the rent. If the T does not pay the rent, and LL issues claim for unpaid rent, T cannot claim in defence "But I tried to find a fifth tenant/get a part-time job so I did make reasonable attempts to mitigate LL's losses". Judge will not say "Oh, that's okay then, you don't owe all of the unpaid rent because you tried to find a way to pay it".

westminster
29-05-2009, 14:28 PM
J
I was taught that the duty to mitigate is a principal of Contract Law where the innocent party on the receiving end of the breach has a duty to mitigate the extent of their loss arising from the breach. (see Brace v Calder [1895] 2 QB 253, or Pilkington v Wood [1953] 2 All ER 810).

I'm not going to read these cases for obvious reasons, but as you say yourself, they apply to an actual breach of contract and a loss arising from the breach. Not to a situation where a breach has not yet occurred - in this case, breach of the obligation to pay rent in full.

MHavana
29-05-2009, 15:23 PM
I don't see how the LL has any 'duty to mitigate potential losses'?

1) There is no loss until T does not pay rent in full when it falls due
2) LL cannot reasonably be expected to anticipate losses which have not yet occurred - T could easily find a fifth T to share before commencement of tenancy, or get a part-time job in McDonald's to cover the extra rent, or borrow it from their Dad
3) T obviously has the right to refuse to live with random fifth T found by the LL, therefore LL has no control over 'mitigating' his 'potential' losses, so how can he 'attempt' to do so?
4) How can LL be held in any way liable for T's breach of the obligation to pay rent??
6) LL could only mitigate his losses once he had regained possession of the property, and after actually suffering the loss.

Moreover, where is the T's 'duty to mitigate potential losses'? T is simply contractually obliged to pay the rent. If the T does not pay the rent, and LL issues claim for unpaid rent, T cannot claim in defence "But I tried to find a fifth tenant/get a part-time job so I did make reasonable attempts to mitigate LL's losses". Judge will not say "Oh, that's okay then, you don't owe all of the unpaid rent because you tried to find a way to pay it".


I'm not going to read these cases for obvious reasons, but as you say yourself, they apply to an actual breach of contract and a loss arising from the breach. Not to a situation where a breach has not yet occurred - in this case, breach of the obligation to pay rent in full.

My mistake - I had overlooked the fact that it was not potential but actual breach that applies in regards to mitigating loss.

Thankyou for correcting me - still learning!

westminster
29-05-2009, 15:41 PM
My mistake - I had overlooked the fact that it was not potential but actual breach that applies in regards to mitigating loss.

Thankyou for correcting me - still learning!

Well, I'm not a lawyer so I'm not in a position to correct anyone on a legal point - it just looked completely illogical to me.

MHavana
29-05-2009, 17:02 PM
Well, I'm not a lawyer so I'm not in a position to correct anyone on a legal point - it just looked completely illogical to me.

Well done for spotting it then - top marks

westminster
29-05-2009, 18:10 PM
Well done for spotting it then - top marks

Haha, thanks! I think what happened to you is that after meticulously arguing the validity of the contract point by point, you dropped one of the balls and overlooked a small detail. Whereas I made the assumption the contract was valid and just looked at a single issue someone else had raised.

I think you might enjoy the swarb legal forum. I've picked up a rudimentary idea of some of the basic principles of law from the discussions on there, not just property but all areas.

http://swarb.co.uk/phpbb/index.php

jta
29-05-2009, 18:11 PM
As I said I have recently completed a unit on Contract Law and basing my opinons on matters that I have recently been taught. In answer to your question - no it is not copied from any other source...

How recently? How much actual experience do you have?


I joined this site to contribute my view on a subject and to try and help out - but what a couple of pompous a**eholes you both are! I dearly hope you are not both representative of the general membership of this site nor your respective employers - that would be a sad thing..

Totally unacceptable, you are insulting two of the most respected members of this forum, many of us have learned a lot from Jeffrey and Paul, whereas you, with your know-it-all attitude, based on a few month's worth of lectures are a completely unknown quantity.


Maybe you should both try and get some work done instead of scouring forums and you may find that you no longer feel the need to try and put other people down to make yourself feel better - work on that self esteem!.

As for putting people down, Jeffrey and Paul are invariably polite, whereas you sound as if you've just thrown your teddy out of the pram.





I was taught that the duty to mitigate is a principal of Contract Law where the innocent party on the receiving end of the breach has a duty to mitigate the extent of their loss arising from the breach. (see Brace v Calder [1895] 2 QB 253, or Pilkington v Wood [1953] 2 All ER 810).

As westminster points out, you must have missed that bit.

MHavana
30-05-2009, 16:04 PM
.

How recently? How much actual experience do you have?

Not sure what 'recently' has got to with it - and if you had bothered to read the orginal post, I said I am a student - just like almost every other professional was at one point.





Totally unacceptable, you are insulting two of the most respected members of this forum, many of us have learned a lot from Jeffrey and Paul, whereas you, with your know-it-all attitude, based on a few month's worth of lectures are a completely unknown quantity.

As for putting people down, Jeffrey and Paul are invariably polite, whereas you sound as if you've just thrown your teddy out of the pram.

As westminster points out, you must have missed that bit.

They're big boys - I'm sure they don't need an ex-pat with too much time on his hands to defend them.

If you have anything more to say to me I would save your breath - I have already wasted far too much of my time explaining myself - and that goes to the other silver surfers on here also.

Go and put your feet up James - hasta luego x