financial loss from breach-tenant denies access for viewings

[nick 100]

Hi all,

I wonder if anyone can offer advice on the following matter:

I am a landlord. My tenant has given 2 months' notice to leave the proprty at the end of the 6 month tenancy term. The contract between us requires that the tenant allow access to my agents or I, in the last 2 months of the tenancy, for the purpose of conducting viewings with prospective new tenants. The current tenant is only allowing access on 1 day a week for such viewings, making them almost impossible, despite many applications to view the property by prospective tenants.

My question is this:

I fully understand (and agree with) the overriding right of the tenant to deny access to anyone (including myself) during the life of the tenancy, save in very limited circumstances. However, in doing so the tenant is also breaching a term of the contract between us. If her actions effectively prevent viewings before she moves out, and this in turn leads to a delay in new tenants being secured, can I compensate myself for the ensuing financial loss by witholding part of the deposit. (The contract states that the purpose of the deposit is to "pay and compensate the landlord for the reasonable costs of any breach of these [i.e the tenancy agreement] obligations")

I would be grateful if any landlords have had experience of using such a term in the past to withold a tenant's deposit, or advice on why such action may not be possible.

Many thanks for any help or advice offered.:)

Nick

[davidjohnbutton]

You will not succeed because common law overrides your clause.

For example, you might give me contractual permission to kill you, but that act is an offence laid down in the law of england, so I would still be guilty of breaking the law despite your permission.

Best is to say to the tenant that you will give a great reference and return the deposit on the day she moves out if she will be kind enough to allow a few viewings during the last 4 weeks of her tenancy. If she then says no, you are at liberty then to say how awkward she was as a tenant, and to hold onto her deposit as long as legally possible.

I remember when we were selling a house with half an acre of land - after a flow of individual viewings with no sale and people criticising this and that with the property, one guy actually said "I dont think there is half an acre here!" Red rag to me - I said "Hang on a mo, I will get the ****ing measuring tape, do you want to count the ****ing blades of grass as well?" People looking around your home can be stressful and I would certainly go with the wishes of a tenant of mine not to have all and sundry trampling through what is still their home until the last day.

[Planner]

A term in the contract cant over ride the "common law" right to quiet enjoyment of the property, notwithstanding that, the fact that she is making one day a week available for viewings is reasonable. She is fulfilling her obligations.

Secondly, what financial loss have you suffered? and how could you prove a financial loss?, If you could take a prospective tenant in any time you wanted it still doesn’t mean you will rent the property before the current tenant leaves, even well viewed properties are subject to void period,it comes with the territory im afraid. In my opinion, another shinning example of the need for TDS.

[jeffrey]

You will not succeed because common law overrides your clause.

For example, you might give me contractual permission to kill you, but that act is an offence laid down in the law of england, so I would still be guilty of breaking the law despite your permission.

Not good analogy. One cannot authorise murder but, for example, one can authorise assault- boxing, wrestling, and judo spring to mind!

[nick 100]

Thanks for the advice everyone. I did wonder about difficulty in showing causation between the tenant refusing access and a delay in new tenants moving in. Will try the tips on offering incentives to the tenant!

Many thanks again.

[justaboutsane]

My answer is that you should be grateful they are allowing one day per week! Some don't get that much.