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View Full Version : early end of tenancy - claiming back rent paid in advance



jakeyd
13-04-2010, 15:11 PM
In November I entered into an Assured Shorthold Tenancy. I paid six months rent upfront. In December due to a change in circumstances I wished to terminate the tenancy (I had a six month break clause but wished to do it right away). The agency told me that if I handed back the keys they would remarket it and they were confident they could find a tenant in a matter of a week or two. They said they would only remarket it if I gave them the keys back.

So I had no use of the property, and they ended up taking until end of March to find a tenant (i got this property the first week it was on the market!). They have confirmed to me in writing that up until mid-March they were marketing it under the landlords instructions as available only from May onwards. They only admitted this to me a couple of weeks ago - obviously I would not have agreed to hand the keys back if I'd known this.

Do you think i have a case against the agents/landlords in that by asking me to return the keys they have de facto ended the tenancy? Especially as the same agents managed the property, and held a separate set of keys which they could have used for viewings with me living there! And can I do anything about the fact that they pretended to me they were marketing it for rent immediately and this was not the case (I have emails that clearly state this).

It is also worth mentioning that I offered (via the agent) to find a tenant myself, and also that if another offer came in which was under what i was paying, I would be happy to make up the difference. I do not know if the agent even passed this on.

I certainly would not have surrendered the keys on their request if I had known they were marketing it for occupation in May.

Any advice gratefully received

Snorkerz
13-04-2010, 17:27 PM
Was the rent due (according to the tenancy agreement) monthly or 6-monthly?

jakeyd
13-04-2010, 17:30 PM
Was the rent due (according to the tenancy agreement) monthly or 6-monthly?

6 monthly - and the first six months were paid upfront.

jakeyd
14-04-2010, 09:38 AM
*bump**bump*

Charles19
14-04-2010, 09:47 AM
*bump**bump*

Very difficult to prove and therefore win this case. In retrospect you were a tricked into moving out having paid up front for the full 6 months. Realistically there should have been no need at all for you to move out in order to show the property esp. if you had it in a neat/tidy condition.
Worse case you should have had a document agreeing to market the property after handing back keys and you should then have checked personally it was being marketed and made calls every other day to Agent to check progress and viewings! You seemed to have just left it all alone and now complain well after the event. And they left it alone as well.
Chas.

mind the gap
14-04-2010, 09:48 AM
Rent paid in advance is in principle non-refundable, except with the agreement of the landlord, I'm afraid.

I think that to stand any chance of success you would have to prove you were illegally evicted, and there seems insufficient evidence of that.

jakeyd
14-04-2010, 11:35 AM
Very difficult to prove and therefore win this case. In retrospect you were a tricked into moving out having paid up front for the full 6 months. Realistically there should have been no need at all for you to move out in order to show the property esp. if you had it in a neat/tidy condition.
Worse case you should have had a document agreeing to market the property after handing back keys and you should then have checked personally it was being marketed and made calls every other day to Agent to check progress and viewings! You seemed to have just left it all alone and now complain well after the event. And they left it alone as well.
Chas.

I have many emails between myself and the managing agency (Foxtons) in I ask about the progress of it being marketed. They kept telling me that they were showing it. They even said they had one offer about a week after starting marketing it. They then emailed me to say 'the offer has fallen through because the LANDLORD's situation has changed.' For three months they refused to tell me how this situation changed, they just kept saying they were marketing it.

Eventually I asked someone at the actual office what was happening, and they told me they had done 60-70 viewings, received numerous offers that the landlord had rejected on price, and one offer that the landlord did not accept because the tenants wanted to move in immediately and he wished for them to move at the end of May.

jakeyd
14-04-2010, 11:36 AM
btw, I have the evidence of the offers, viewings as an email from the agent

jakeyd
14-04-2010, 11:38 AM
Rent paid in advance is in principle non-refundable, except with the agreement of the landlord, I'm afraid.

I think that to stand any chance of success you would have to prove you were illegally evicted, and there seems insufficient evidence of that.

Would that apply to the full rent here? There are now new tenants in the property so the landlord has technically got double rent.

mind the gap
14-04-2010, 11:45 AM
Would that apply to the full rent here? There are now new tenants in the property so the landlord has technically got double rent.

Have you at any point signed a formal surrender with your LL (or with his agent acting on his behalf), to agree that you will give up the tenancy of [a date before the end of the fixed term]? Do you have written evidence of the agent's offer that if you hand back the keys and vacate that they would allow you to end the tenancy so they could begin to market it?

If not I think you will struggle to prove that you were evicted, or even that the tenancy is in fact at an end when you moved out. The agents could claim (although it would probably be a lie) that you had voluntarily vacated - that in itself would not be the same as a formal end to the tenancy and an end to your liability for rent, however. An email saying the agent will start to market it is not the same as a formal surrender.

Even if you could establish that you and LL/agent had agreed a formal written surrender, unless that surrender included an agreement that you would be refunded x proportion of the rent you had paid in advance, I'm afraid my earlier advice stands - it is very unlikely that you will see it again. The fact that the property has now been re-let and the Ll is drawing rent from another set of Ts may prove that your tenancy is over, but it is probably immaterial in terms of you right to claw back some of your six months' rent payment. This is because any one rent payment is seen as covering a whole period of the tenancy and cannot be 'apportioned' (ie split up and designated as belonging to a particular shorter period of time, e.g. by saying ''That £1000 relates to my first month in the property, the next £1000 to the second month, and so on).

It may be worth asking a 'no win, no fee' property lawyer what chance you have of suing for harassment/illegal eviction, but I suspect that you will struggle to prove it. I am really sorry you have ended up in this situation and the way Foxtons have behaved here is appalling, on the face of it.

Charles19
14-04-2010, 11:48 AM
btw, I have the evidence of the offers, viewings as an email from the agent

So they were marketing the place then but date is the issue. They could not find an agreeable T early on. It is up to the L to accept or not accept a new T based on many factors so this is of no issue really. Again I cannot see what you would claim against them for with any hope of winning, sorry. Unless anyone else can see a window?
C

jakeyd
14-04-2010, 11:49 AM
Have you at any point signed a formal surrender with your LL (or with his agent acting on his behalf), to agree that you will give up the tenancy of [a date before the end of the fixed term]?

If not I think you will struggle to prove that you were evicted.

60-70 viewing sounds excessive (and I would be tempted not to believe this figure in today's property market) but if you were not aware of them at the time I think it would be difficult to say they breached your 'quiet enjoyment' or constituted harassment or illegal eviction as such.

Being asked to return the keys and then returning meant that I was unable to enjoy the property at all! :)

jakeyd
14-04-2010, 11:54 AM
So they WERE marketing the place then - I am a little confused now. I thought you indicated it was NOT being marketed. Sounds like it was but they could not find an agreeable T early on. It is up to the L to accept or not accept a new T based on many factors so this is of no issue really. Again I cannot see what you would claim against them for...?
C

It was being marketed as available for occupancy at the end of my tenancy. They had told me (via email) that it was being marketed as available for immediate occupancy - this turns out to have been only true for a month. They also told me (via email) that the landlord rejected an offer at the asking price because the tenants wanted to move in immediately and he did not want anyone moving in before May (this was in Feb). After Feb they were marketing it as available End May.

I agreed to send them the keys and move out because they said they were confident of finding new suitable tenants to move in immediately very shortly (it is a very well presented flat in a desirable central London location with over 1200 sq ft floor area).

I was not informed that the landlord was rejecting offer(s) based on that he didn't want someone to move in immediately - the estate agents emails to me clearly show that we are talking about showing to tenants for immediate occupation

jakeyd
14-04-2010, 11:58 AM
I know the Beveridge case might say otherwise, but there seems to be a belief in common currency that a LL is obliged to attempt to mitigate their losses. I am thinking that asking for a tenant only to move in at the end of my tenancy is not attempting to mitigate the loss of an early surrender?

Would be interested what anyone with legal knowledge might think.

mind the gap
14-04-2010, 12:03 PM
I know the Beveridge case might say otherwise, but there seems to be a belief in common currency that a LL is obliged to attempt to mitigate their losses. I am thinking that asking for a tenant only to move in at the end of my tenancy is not attempting to mitigate the loss of an early surrender?

Would be interested what anyone with legal knowledge might think.

I am not a lawyer but I can tell you that landlords are not obliged to mitigate their losses when AST tenants move out before the end of the fixed term and that if Ts do so, no rent paid in advance is refundable without LL's agreement, e.g. as part of the terms of a formal Deed of surrender. It does not in any case seem to me to be the crux of the issue here.

So far you have not established that there was an early surrender except on your part, in that you handed back the keys and moved out. A S I have explained, unless you can prove that inappropriate pressure was exerted on on you to do this, your giving up occupation of the property could be construed as purely voluntary and you would thus have no viable claim against your LL for illegal eviction.

Do you have anything in writing from the LL/agent asking you/telling you to vacate the property before the end of the fixed term, or not? If this request was made by text or telephone, do you have a record of it? Were there any witnesses?

jakeyd
14-04-2010, 12:05 PM
Have you at any point signed a formal surrender with your LL (or with his agent acting on his behalf), to agree that you will give up the tenancy of [a date before the end of the fixed term]? Do you have written evidence of the agent's offer that if you hand back the keys and vacate that they would allow you to end the tenancy so they could begin to market it?

If not I think you will struggle to prove that you were evicted, or even that the tenancy is in fact at an end when you moved out. The agents could claim (although it would probably be a lie) that you had voluntarily vacated - that in itself would not be the same as a formal end to the tenancy and an end to your liability for rent, however. An email saying the agent will start to market it is not the same as a formal surrender.

Even if you could establish that you and LL/agent had agreed a formal written surrender, unless that surrender included an agreement that you would be refunded x proportion of the rent you had paid in advance, I'm afraid my earlier advice stands - it is very unlikely that you will see it again. The fact that the property has now been re-let and the Ll is drawing rent from another set of Ts may prove that your tenancy is over, but it is probably immaterial in terms of you right to claw back some of your six months' rent payment. This is because any one rent payment is seen as covering a whole period of the tenancy and cannot be 'apportioned' (ie split up and designated as belonging to a particular shorter period of time, e.g. by saying ''That £1000 relates to my first month in the property, the next £1000 to the second month, and so on).

It may be worth asking a 'no win, no fee' property lawyer what chance you have of suing for harassment/illegal eviction, but I suspect that you will struggle to prove it. I am really sorry you have ended up in this situation and the way Foxtons have behaved here is appalling, on the face of it.

The agent did send me an email saying they would not market it unless I returned the keys. They have also sent me emails saying I will be refunded for the rent I have overpaid once the property has been re-let. However they are now not releasing this money.

Charles19
14-04-2010, 12:05 PM
It was being marketed as available for occupancy at the end of my tenancy. They had told me (via email) that it was being marketed as available for immediate occupancy - this turns out to have been only true for a month. They also told me (via email) that the landlord rejected an offer at the asking price because the tenants wanted to move in immediately and he did not want anyone moving in before May (this was in Feb).

This is indeed unfair to you. Not sure why the L would risk losing a viable new T in this way though. Sure there was no other reason? If its in writing then maybe there is a case to pursue - any legal brains listening? You would also need proof (in writing I would think fo rbest chance to prove) that it was agreed that you could leave and a new T would be sought for occupation asap.

jakeyd
14-04-2010, 12:06 PM
I am not a lawyer but I can tell you that landlords are not obliged to mitigate their losses when AST tenants move out before the end of the fixed term. It does not in any case seem to me to be the crux of the issue here.

Do you have anything in writing from the LL/agent asking you/telling you to vacate the property before the end of the fixed term, or not? If this request was made by text or telephone, do you have a record of it? Were there any witnesses?

Yes I have an email asking me to do this from the agent. They asked for the return of the keys. As managing agents, I have a letter from them saying they hold a copy of the keys, so they did not need the keys to market the property!

jakeyd
14-04-2010, 12:07 PM
This is indeed unfair to you. Not sure why the L would risk losing a viable new T in this way though. Sure there was no other reason? If its in writing then maybe there is a case to pursue - any legal brains listening? You would also need proof (in writing I would think fo rbest chance to prove) that it was agreed that you could leave and a new T would be sought for occupation asap.

I imagine the LL felt that as he had my rent up front there was no incentive to get a new T. However this is contrary to the agreement (in email) I had made with the agent.

mind the gap
14-04-2010, 12:12 PM
The agent did send me an email saying they would not market it unless I returned the keys. They have also sent me emails saying I will be refunded for the rent I have overpaid once the property has been re-let. However they are now not releasing this money.

In that case you would seem on firmer ground and it would definitely be worth consulting a specialist lawyer to see if a case could be constructed.

I am still not sure whether 'Unless you return the keys we will not market the property to allow you to leave early and get a refund' constitutes illegal eviction, however.

Lawcruncher's or Jeffrey's views would be helpful here!:)

jakeyd
14-04-2010, 12:18 PM
In that case you would seem on firmer ground and it would definitely be worth consulting a specialist lawyer to see if a case could be constructed.

I am still not sure whether 'Unless you return the keys we will not market the property to allow you to leave early and get a refund' constitutes illegal eviction, however.

Lawcruncher's or Jeffrey's views would be helpful here!:)

That's what I'm thinking of doing, but I get the feeling it's not the sort of thing to approach a high street lawyer with. Anyone know any good specialist lawyers?

Lawcruncher
14-04-2010, 12:54 PM
Taking into account everything the OP has told us I do not think he has a strong case for a refund of any rent.

When it comes to surrenders you really do need to be crystal clear on what it is you have agreed and indeed whether there is an agreement to surrender or an actual surrender. A tenant should always be looking for a clean break with agreement as to what he pays the landlord to accept the surrender and what allowance should be made in respect of rent paid in advance. Agreeing that the landlord will take the premises back when a new tenant is found rarely benefits a tenant because there is no incentive on the landlord to find a new tenant. If you vacate and give back control of the property to the landlord the situation can become even more confused as doubt arises whether there is an agreement to surrender or an actual surrender.

jakeyd
14-04-2010, 13:48 PM
Taking into account everything the OP has told us I do not think he has a strong case for a refund of any rent.

When it comes to surrenders you really do need to be crystal clear on what it is you have agreed and indeed whether there is an agreement to surrender or an actual surrender. A tenant should always be looking for a clean break with agreement as to what he pays the landlord to accept the surrender and what allowance should be made in respect of rent paid in advance. Agreeing that the landlord will take the premises back when a new tenant is found rarely benefits a tenant because there is no incentive on the landlord to find a new tenant. If you vacate and give back control of the property to the landlord the situation can become even more confused as doubt arises whether there is an agreement to surrender or an actual surrender.

Thank you - it seems dreadfully unfair as had I known they would act like this I would have not sent them back the keys as they requested but rather found a suitable tenant myself (there is a clause in the contract saying landlord's consent cannot be unreasonably withheld for this)