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scraggle_frock
24-02-2010, 13:16 PM
Hello,

We have a joint tenancy agreement and deal with a lettings agency and not with the landlord directly, this is stated in the tenancy agreement. One of the tenants (T1) wanted to assign her part of the lease to another person (T2). T1 notified the agency (via email) and they agreed that this would be acceptable. T2 paid a fee to the agency for credit and reference checks and to sign a new contract. There were no problems with either T2's reference or credit checks. Other previous tenants had also assigned their part of the lease before, always informing the agency and with the agency's consent.

The day before T1 was due to vacate the property, and T2 move in, the landlord arrived at the property stating that T2 was not allowed to be assigned T1's part of the contract and was not allowed to move into the property. He had phoned T2 and told her this, stating that T1 had tried to illegally sub-let to T2 and that T2 could sue T1 for 3x the deposit paid.

Surely this is not allowed? The contract specifically allows for the possibility of assigning the lease to another tenant;

"Not assign, underlet or part with or share possession of the whole or any part of the property without the permission of the landlord, such permission not to be unreasonably withheld"

Permission was granted by the agency who were acting on the landlords behalf. T1 has subsequently lost the £300 holding deposit that she had paid to secure the property she was supposed to be moving into.

What can we do? Please help!

Lawcruncher
24-02-2010, 14:27 PM
The landlord and his agent are one flesh. If the agent agreed the landlord agreed. The landlord clearly does not understand the difference between sub-letting and assignment. Remind the landlord of the provisions of the Landlord and Tenant Act 1988 that a landlord who unreasonably withholds consent is liable to pay damages for breach of statutory duty. In fact if you have it in writing that the agent agreed then go ahead with the assignment anyway and give notice of the assignment to both landlord and agent. If rent is accepted or demanded after notice is served it will put the position beyond doubt as that will waive any breach that may have occurred. What the landlord says about the deposit is nonsense.

Why was a holding deposit paid? What was being held?

jeffrey
24-02-2010, 14:38 PM
One of the tenants (T1) wanted to assign her part of the lease to another person (T2).
But it's not possible to assign a bit of the Letting Agreement. T1+X are joint tenants of the whole premises; so T1 has nothing assignable.
L is correct in law. The problem is what L's Agents purport to have agreed- even they can't do that!

scraggle_frock
24-02-2010, 14:39 PM
Thanks!

I thought that the agency and the landlord would be reguarded as one and the same.

The tenant didn't vacate the property because of what the landlord said, i.e that she would be illegally sub-letting and then threatening to bring charges against her. She therefore lost the £300 that she has paid as a holding deposit on the new property she was supposed to move into.

Can she still assign the lease?

scraggle_frock
24-02-2010, 14:45 PM
The joint tenancy is between 4 tenants, one of these tenants wished to vacate the property and found another tenant to replace her. It was agreed by the agency that this was acceptable and the new tenant would sign a contract (they were paid a signing admin fee). Is this not assigning? Would it constitute a mutual agreement that the original tenancy would be ended and a new one formed from the date the new tenant moved intot he property? This is all very confusing!

tom999
24-02-2010, 14:54 PM
The joint tenancy is between 4 tenants, one of these tenants wished to vacate the property and found another tenant to replace her. It was agreed by the agency that this was acceptable and the new tenant would sign a contract (they were paid a signing admin fee). Is this not assigning? In simple terms:

If there are four joint tenants: T1, T2, T3, T4, and subsequently T2 decides to leave, so finds another replacement tenant, R1; T2 cannot assign the tenancy herself as it is a joint one which includes T1, T3 & T4.

To assign the tenancy, all existing tenants (T1, T2, T3, T4) would need to assign the tenancy to the new tenants (T1, R1, T3, T4).

I believe the agency is incorrect in agreeing that it would be acceptable for a single tenant (T2) to sign a contract.

jeffrey
24-02-2010, 15:04 PM
In simple terms:

If there are four joint tenants: T1, T2, T3, T4, and subsequently T2 decides to leave, so finds another replacement tenant, R1; T2 cannot assign the tenancy herself as it is a joint one which includes T1, T3 & T4.

To assign the tenancy, all existing tenants (T1, T2, T3, T4) would need to assign the tenancy to the new tenants (T1, R1, T3, T4).

I believe the agency is incorrect in agreeing that it would be acceptable for a single tenant (T2) to sign a contract.
I agree. But a new letting to T1/R1/T3/T4 is possible if:
a. T2 agrees explicitly a surrender of the old one; and
b. T1/T3/T4 do the same or are assumed to have agreed impliedly (by executing the new tenancy).
Problem: 'new tenancy' means that L must re-protect deposit.

scraggle_frock
24-02-2010, 15:10 PM
Sorry if I was unclear. All the tenants were aware of that T2 wished to vacate and were happy for R1 to take over from her. They were expecting a new contract to be prepared which would replace T1 with the new tenant which they all expected to sign. This is what happened before when tenants wished to vacate the property.

Is the landlord able to refuse something that the agency has already agreed to?

jeffrey
24-02-2010, 15:31 PM
OK. So a new letting is what everyone wants- except L! If L's agent was acting within actual/implied/imputed authority, L is bound.

mind the gap
24-02-2010, 15:45 PM
OK. So a new letting is what everyone wants- except L! If L's agent was acting within actual/implied/imputed authority, L is bound.

Try proving it, though! LL need only say to A : deny all knowledge of ever offering this bunch a tenancy. Just say it was discussed as a possiblity but nothing was ever agreed/offered.

Unless the Ts have an independent witness who overheard the orally-made offer, would they not struggle to prove it was ever made?

jeffrey
24-02-2010, 15:48 PM
Yes and yes.

scraggle_frock
24-02-2010, 15:59 PM
We have emails from the agency agreeing that T2 could move out of the property and be replaced by another tenant. The new tenant then paid money to the agency to be credit and reference checked and to sign a new contract. Surely this would be acceptable as proof there was an agreement for a new tenancy?

jeffrey
24-02-2010, 16:17 PM
It might; but what sort of rubbish Letting Agent doesn't understand basic contract law?