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View Full Version : Tenant breaks contract before he moves in - Suggestions please



Swallow
25-09-2011, 19:44 PM
I have a student HMO with 5 rooms and I have a contract and deposits from 5 students, 4 of whom have now moved in. The 5th student hasn't yet provided the full pre-letting details - Guarantors agreement and copy of his ID - and has not paid the first month's rent, which is now 3 weeks late. I have not allowed him to move in and told him I will re-let the room if he doesn't pay this months and next months rent, and provide all the above info. His contract says he must pay monthly in advance and I always made it clear that he has to pay the first month before he can move in.
He has been very difficult to contact (doesn't respond to calls, vmails, emails).

I intend to keep his deposit, in lieu of the first months rent, and re-let it from next month. I have sent him a letter (Special Delivery) confirming this. Are there any legal issues with this?

theartfullodger
25-09-2011, 19:58 PM
Are these individual tenancies for named rooms or "joint & severally "

Snorkerz
25-09-2011, 20:05 PM
If they are individual contracts, and he hasn't moved in, then the tenancy has not begun, so you can't charge rent.

As you are preventing him occupying the property you can not charge rent for something that he should have exclusive use of.

Indeed, if you maintain the tenancy has begun, and you prevent him accessing the property, it could easily lead to a claim of illegal eviction. Re-letting would only make that worse.

So long as you do not claim you are keeping any money back as rent, then you should be fine. I would say you are keeping it back to cover the extra re-letting costs. If he wants to sue, he can, but you'll keep out of the criminal courts that way.

bhaal
25-09-2011, 20:34 PM
In addition to answering theartfullodger's question can you also tell us if the tenant has actually signed a contract yet. Your first post isn't totally clear on the point. If he has signed a contract then i) does it actually contain a clause purporting to withhold the tenant the right to possession unless the first month's rent is paid?; and ii) how do you expect to make any guarantor's obligations enforceable without valid consideration?

Swallow
25-09-2011, 20:44 PM
It is a single AST contract for all 5 tenants and he did sign it.
I haven't prevented access - he hasn't asked for a key yet (and I wouldn't give him one) as he realises that he needs to pay the rent first. The contract says that the rent is due in advance but doesn't specifically say that he can't gain access if he doesn't pay his first month's rent.
Am I still clear to keep his deposit to cover reletting costs?

mariner
25-09-2011, 21:16 PM
Did 1. all 5 Ts sign the same AST making them 'joint & severally liable' or 2. making them resp for a room and shared facilities?
If 1. T commenced when first T moved in ans all are jointly liable for total rent from that date. Nothing to stop absent T getting a key from his friends & copying it. Let the absent T move in, provide a key and explain to all they are liable for full rent whether 5th T pays or not. IMO you can not relet his room during T but other Ts can suggest an acceptable repacement. Did they know each other prior to T or just 5 individuals sharing? Peer pressure could work in your favour re rent.

bhaal
25-09-2011, 21:26 PM
It is a single AST contract for all 5 tenants and he did sign it.
I haven't prevented access - he hasn't asked for a key yet (and I wouldn't give him one) as he realises that he needs to pay the rent first. The contract says that the rent is due in advance but doesn't specifically say that he can't gain access if he doesn't pay his first month's rent.
Am I still clear to keep his deposit to cover reletting costs?

If there's a single AST making all tenants joint and severally liable then you have no right to withhold access but all the tenants are jointly accountable for the rent, including the missing fifth tenant's share. You also cannot re-let the property or any part of it without the consent of all five tenants.

Have you protected the tenants' deposit in an approved scheme?

Swallow
26-09-2011, 20:53 PM
Yes, all 5 Ts signed the same contract. Fortunately the missing T has not attempted to move in but in any case he has not yet provided the pre-tenancy ID and guarantors agreements.
The 5 tenants are not a group so I plan to get their approval to re-let the room as I still haven't heard from the missing T - now oved 3 weeks into the tenancy period. Do I need to issue a legal notice to him?

Lawcruncher
26-09-2011, 20:59 PM
If they are individual contracts, and he hasn't moved in, then the tenancy has not begun, so you can't charge rent.

Even if a tenancy has not begun, the tenant is still liable to pay rent (or if you prefer a sum equivalent to rent) by virtue of his contractual obligation.

Swallow
26-09-2011, 21:08 PM
Oh and yes his deposit is protected - with MyDeposits - so I guess he'd have to make a successful claim for a refund if he decides that's what he's going to do. In the meantime I just want to get a paying tenant in.

bhaal
26-09-2011, 23:43 PM
Yes, all 5 Ts signed the same contract. Fortunately the missing T has not attempted to move in but in any case he has not yet provided the pre-tenancy ID and guarantors agreements.
The 5 tenants are not a group so I plan to get their approval to re-let the room as I still haven't heard from the missing T - now oved 3 weeks into the tenancy period. Do I need to issue a legal notice to him?

If all the tenants signed the same tenancy agreement then you cannot re-let the property legally without the consent of all five tenants. The best way to do this is to have all five and a sixth, new, tenant sign a Deed of Assignment transferring the lease from A, B, C, D and E to A, B, C, D and F.

The non-paying tenant may be very happy to sign a document releasing him from his obligations but you will have to get him to do that if you want to move someone else in in his place.

The alternative is simply to tell his housemates they will have to make up the fifth tenant's rent between them. If they all signed the same contract they are almost certainly jointly and severally liable, so you can sue any one or any combination of them for missing rent. The tenant(s) can then recover the amount they 'overpaid' from their fellow tenants.

mariner
27-09-2011, 00:36 AM
Tech, each would only have a claim, at this time, against non/underpaying/ absent T.
If absent T, or others, fail to agree transfer to new T, then everyone IMO is resp for any T damage and rent shortfalls during existing AST.
I suggest it is better that any any house let to Ts that are joint & severally liable, the Ts should have some pre-existing experience of each other, eg friends or work colleagues. Thus peer pressure can be applied and remaining Ts could nominate mutually acceptable replacement.
OP stated each T signed same AST. This could mean the basic AST was was copied 5x and each T signed their own copy without other T sigs or names that were presumed 'joint & severally liable' so a T could assume he was only renting a room with facilities shared by other Ts, hence reduced liablity re rent.