Early Tenancy Surrender by Text

[duckandcover1]

Hello all,

Property rented in the midlands, I have found out that my tenant has done a runner before the end of the AST.

They've taken some things, but left the house untidy, thankfully not damaged but have left lots of their things

I received a text to say they had moved out (in response to me asking why the rent wasn't paid), I replied to this to accept this as surrendering the tenancy after they told me they would not be returning

The house was left unlocked, a mess and with lots of stuff lying around.

I've contacted the tenants multiple times regarding their stuff, with no reply, so I've put it all into storage for one month before it will be disposed of if not collected

Deposit was protected correctly, gas safe in order and all prescribed information issued.

My questions are:

Firstly, am I covered by everything I've done above, the tenant asked to return but I've said no based on everything they did above and that the tenancy has ended due to the surrender by text

Should I formalise the tenancy ending by letter?

Can I claim the month lost rent from the deposit (in lieu of notice?), also can I claim the cost of storage of their things? There are additional months left on the AST but if I can re-let it I can't see how I can claim that and I am happy not to as there is no loss effectively

Thanks in advance

[Jon66]

No, do not formalise it as if you cast doubt that it is not a valid surrender you could open a can of worms. Yes you can claim the month in lieu of notice from the deposit, and i think its reasonable to charge for 28 days storage. You should probably send them a tort notice. Lots of good examples on the internet.. You can claim the rent due up to the end of the fixed term, there is no duty to mitigate your loss in these cases. I would make sure you claim so if there is any issue with parts of your claim, you will have all the deposit, if you see what i mean.

[duckandcover1]

Thanks Jon, I will have a read up on tort notices, I am aware of the tort interference with goods etc but not in detail

I think I understand, so if the AST should see me receiving for example another 3k in rent, I should put that in the claim for the deposit as cover in case they don't agree another bit of the claim? The deposit is quite a bit less than the remaining rent that would be owed under the AST

Would I have any issues if I then took it to court as it had been reviewed in the deposit claim?

[Ted.E.Bear]

You can claim the rent due up to the end of the fixed term, t

you can't do that if you re-let the property.
Leaving a property empty in the hope that you can get the money off a missing tenant is a risky strategy.

[Jon66]

None at all, get the full deposit and pursue the remainder through mcol, as breach of contract, but it probably isn't worth it unless you know they have money or have details of their current employment for an attachment to earnings, or third party order via their bank.

[duckandcover1]

you can't do that if you re-let the property.
Leaving a property empty in the hope that you can get the money off a missing tenant is a risky strategy.

Thanks Ted, tbh I don't intend to rip the tenant off, if I can re-let it great, and even if I don't I'd only really want the months notice to be recovered as that's my only true loss (well in addition to the storage costs etc)

[Jon66]

@TedEBear A landlord does not have to mitigate their loss. http://www.bailii.org/ew/cases/EWCA/Civ/2006/1659.html

(1) ROBERT REICHMAN (2) MONICA DUNN	Claimants Respondents
	- and –
	(1) SARAH BEVERIDGE	Defendant
	(2) MATTHEW GAUNTLETT

[Jon66]

I am not suggesting leaving the property empty, but you do not have a duty to mitigate your loss so in the end, if you have a void period of a month to 6 weeks or even longer you can claim that from the tenant, although as previously stated the t is liable for the whole of the rent to the end of the fixed term.

[Lawcruncher]

You cannot argue there has been a surrender and claim for rent after the date of surrender.

[duckandcover1]

You cannot argue there has been a surrender and claim for rent after the date of surrender.

Thanks lawcruncher, interested to know more though

What I'd be looking for is a figure for lieu of notice that has led to the property being left empty and me at a financial loss because of it

I don't want to leave the house empty until the end of the AST, but equally I don't want to be out of pocket for a month or so whilst trying to re-let it when I had an agreement on that property that was broken by the other party

[Lawcruncher]

I don't want to leave the house empty until the end of the AST, but equally I don't want to be out of pocket for a month or so whilst trying to re-let it when I had an agreement on that property that was broken by the other party

The law requires you to make a choice: maintain the tenancy and claim the rent or take the property back.

[duckandcover1]

The law requires you to make a choice: maintain the tenancy and claim the rent or take the property back.

Thanks, so realistically, all I can claim for out of the deposit is the cost of moving all the stuff they have left into storage?

and, does that not contradict with this (from Jon's link above?)

The contractual nature of a lease has been emphasised by the House of Lords in several cases over the last thirty years. In United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904, Lord Diplock said at 935:

1. 1. "The mediaeval concept of rent as a service rendered by the tenant to the landlord has been displaced by the modern concept of a payment which a tenant is bound by his contract to pay to the landlord for the use of his land."

Accordingly the rights and obligations of the parties in respect of rent, and in particular under rent review clauses, had to be determined as a matter of the construction of the contract, just as payment obligations would be under any other contract.

(Although as a caveat, I've no legal training and do find things like this difficult to follow as a point lower down the link seems to suggest otherwise to what I have copied above)

[duckandcover1]

Also from that link.....

Once the landlord has taken possession he cannot recover rent under the lease. The question is whether he can recover damages for the loss of the future rent, which would have to be on the basis that it was loss caused by the tenant's breach of contract. There is no English case which decides that the landlord can recover damages of this kind. There is at least one English decision to the contrary, but it is of some antiquity. In Canada and Australia, however, the highest courts have decided that such damages can be recovered.

This seems to be more relevant to me, which seemingly suggests I'm in the realms of something untested in England, which I find hard to believe

But it does suggest I'm looking to recover damages due to breach of contract by the tenant, rather than looking to recover rent for which the tenant has not received a benefit

[Jon66]

The point is surely that until the property is relet there has been no surrender. Therefore the ll can claim from the tenant the rent for the "void period" (although it isnt a void period as such because the tenancy is within the fixed period and the ll has not yet accepted a surrender).

So the t is still in the fixed term therefore there is no surrender until the ll says he accepts that surrender, because then there is an agreement between the parties to terminate early. Which means the ll can claim the rent up until the relet, so for what we would usually call the void period. But it isnt the void period because the tenancy still exists until the ll says there has been a surrender.

Sorry original poster we'll just argue this out and reach a mutual conclusion at some point this year. Just bear with us.

[duckandcover1]

You aren't claiming for rent per se after the surrender, you are claiming for breach of contract. This is well established under English law and I'm interested to hear any case law that you believe says differently.

Case law as you have no doubt identified from my posts above is way out of my comfort zone - I've read your reichman link above and it's confused me enough to have read both sides that I can and cannot claim for the loss and therefore I am non the wiser

I'm comfortable with your assertion of the breach of contract, and feel that it applies in my case. What I am not sure about is

Does my acceptance of their text to end the tenancy remove the breach of contract as I have agreed?

If I have accepted the surrender, how do I cover my losses if me unknowingly accepting that surrender removes my right to pursue them

If no to both of the above, is it a breach of contract I therefore claim against, and if so, do I do that through the deposit adjudication first, and if the amount is higher, use MCOL for the difference?

Or if the deposit adjudication make a decision, is that final even if the cost to me is greater than the deposit taken