Extrication from garage let

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    #16
    The efforts have to be reasonable, so the amount of effort is probably proportional to what you find.
    A pile of rags, almost no effort.
    Pressure washer, more effort.
    Stack of gold bullion, lots and lots of effort.
    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

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      #17
      To be hones AndrewDod I have never had to....the prospect of having their stuff sold usually makes them turn up rapidly!
      Unshackled by the chains of idle vanity, A modest manatee, that's me

      Comment


        #18
        Originally posted by AndrewDod View Post

        It says (after the section about 2 month of notice for a usual termination) "If rent is not paid according to this agreement, then the landlord is not required to provide any notice to terminate the agreement"

        Yes it is poorly worded so don't remind me of that..... A similar form of wording is used in some Council agreements which involve garage lets.

        e.g "2. If a tenant fails or neglects to observe any of these conditions, the Council may end their tenancy at any time"

        Yes it would probably be unreasonable to kick the tenant out with one day of notice if the rent is one day late, but I guess the clause could be used to shorten the notice period if there is a fundamental breach.
        "The landlord is not required to provide any notice to terminate the agreement" is not quite te same as "If a tenant fails or neglects to observe any of these conditions, the Council may end their tenancy at any time". The former leaves us wondering how the tenancy is to be ended.

        If you want to be able to end a tenancy because the tenant is in breach you have a forfeiture clause. You do not want to have different notice periods for different things as it has the potential to render the tenancy void for uncertainty.

        Comment


          #19
          Originally posted by Lawcruncher View Post

          "The landlord is not required to provide any notice to terminate the agreement" is not quite te same as "If a tenant fails or neglects to observe any of these conditions, the Council may end their tenancy at any time". The former leaves us wondering how the tenancy is to be ended.

          If you want to be able to end a tenancy because the tenant is in breach you have a forfeiture clause. You do not want to have different notice periods for different things as it has the potential to render the tenancy void for uncertainty.
          OK very useful -- just so I understand the difference -- if notice is not mentioned under response to breaches - but it simply says (at a simplistic level):

          "Failure of the tenant to pay rent will result in immediate termination of this agreement"

          Would that constitute a forfeiture clause?

          Tenancy is ended - landlord does whatever is required. Unlike say a forfeiture clause in a freehold-lessee contract, there are no prescribed notices and other things that need complying -- so no more need saying?

          Comment


            #20
            Originally posted by islandgirl View Post
            To be hones AndrewDod I have never had to....the prospect of having their stuff sold usually makes them turn up rapidly!
            Not any debts, just the expenses of sale. The exception is if the goods were with you for repair, in which case you can deduct the price agreed for the repair. Apart from that, there is no right of set off.

            Just to confirm, the procedure cannot be used before the tenancy ends because until then the landlord cannot be in possession or control of the goods.

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              #21
              Sorry Lawcruncher - I need to clarify my last response -- it was not a theoretical question.

              In addition to saying under the notice section "If rent is not paid according to this agreement, then the landlord is not required to provide any notice to terminate the agreement"

              it actually *says* elsewhere:

              "Failure to pay rent as specified by this agreement will result in immediate termination of this agreement"

              I presume the above would be a forfeiture clause. So how does that work - it seems to compel the landlord ("will") to terminate the agreement, so I presume since I have brought the non-payment to their attention it is in fact terminated -- and not only when I say so.

              I have no idea who or what worded the agreement ---- quite possibly me, but it is a long time ago...

              Comment


                #22
                A forfeiture clause gives the landlord the option to bring the tenancy to an end.

                As stated elsewhere, the parties to a tenancy must know it maximum duration. So, for example, a grant of a term "until High Street Newton is pedestrianised" is void. If you want to grant a lease which ends on a given event you have to grant a fixed term and have a break clause exercisable when the event occurs. A break or forfeiture clause does not affect the maximum duration. Whether a lease which in one clause grants a fixed term and in another says it ends if High Street Newton is pedestrianised has the same effect as a lease granted for a term expressed to end when High Street Newton is pedestrianised I would not like to say for certain - it is the sort of detail on which cases can turn on.

                Anyway, if you simply want the right to end a tenancy for breach of covenant all you need is a standard forfeiture clause.

                "Failure to pay rent as specified by this agreement will result in immediate termination of this agreement" reads rather like a warning. It cannot be read as an obligation on the landlord to end the lease if rent is not paid. A possible interpretation is that it was intended to be read as automatically terminating the lease if rent is not paid, which is not what a landlord wants at all as it gives the tenant an easy way out.

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                  #23
                  Lawcruncher - you may be right legally (sure you are) but the letter I send always says the goods will be sold and outstanding debts plus cost of sale deducted. It works.
                  Unshackled by the chains of idle vanity, A modest manatee, that's me

                  Comment


                    #24
                    If you do offset the debt from the sales proceeds, the tenant could claim the money back.
                    The amount of the debt would be a counterclaim, making the tenant's claim pointless.

                    They're much more likely to claim that you undervalued the goods and try and claim for consequential loss (because without their tools they couldn't do their job/complete the contract etc).

                    But if you're going to do something that's wrong, it's best you are aware it's wrong before you do it!
                    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                    Comment


                      #25
                      Just because something works does not mean it is justifed. It comes down to how much you consider you should follow the rule of law. If you allow yourself the luxury of bending the law a little in a way you consider does no real harm or you feel is justified because of the other person's conduct, then you must afford the same luxury to others. The problem with that is that others may consider the laws they can bend are ones you think you should be adhered to strictly if you benefit from them.

                      The law is clear.

                      The right to distrain for rent has been abolished. The new right is only applicable to commercial premises and the procedure set out must be followed.

                      The law sets out a clear procedure to be followed if you want to dispose of the goods of another which have come into your possession. The procedure expressly provides that you must account to the owner with the proceeds of sale, deducting only the costs of sale and (if applicable) the cost of repair if the goods were taken for that purpose..

                      Distraint without a court order is unlawful. I quote from the Statute of Marlborough 1267:

                      Of wrongful Distresses, or Defiances of the King’s Courts. Punishment for unlawful Distresses.

                      Whereas at the time of a Commotion late stirred up within this Realm, and also sithence, many great Men, and divers other, refusing to be justified by the King and his Court, like as they ought and were wont in Time of the King’s noble Progenitors, and also in his Time; but took great Revenges and Distresses of their Neighbours, and of other, until they had Amends and Fines at their own Pleasure; and further, some of them would not be justified by the King’s Officers, nor would suffer them to make Delivery of such Distresses as they had taken of their own Authority; It is Provided, agreed, and granted, that all Persons, as well of high as of low Estate, shall receive Justice in the King’s Court; and none from henceforth shall take any such Revenge or Distress of his own Authority, without Award of our Court, though he have Damage or Injury, whereby he would have amends of his Neighbour either higher or lower.

                      And upon the foresaid Article It is Provided and granted, that if any from henceforth take such Revenges of his own Authority, without Award of the King’s Court as before is said, and be convict thereof, he shall be punished by Fine, and that according to the Trespass; and likewise if one Neighbour take a Distress of another without Award of the King’s Court, whereby he hath Damage, he shall be punished in the same wise, and that after the Quantity of the Trespass; and nevertheless sufficient and full Amends shall be made to them that have sustained Loss by such Distresses.


                      If you write to someone and say you intend to sell their goods and deduct from the proceeds the amount they owe you, you are announcing an intention to commit a criminal offence and ride roughshod over their ancient rights. That is not a course of action which recommends itself.

                      Comment


                        #26
                        Originally posted by Lawcruncher View Post
                        Just because something works does not mean it is justifed. It comes down to how much you consider you should follow the rule of law.
                        This is true.
                        However, there are other factors.

                        The situation we are discussing arises because "the other guy" has already decided not to follow the rule of law.
                        They have decided not to pay rent that they agreed to, they have blocked the landlord from letting their property to anyone else.
                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                          #27
                          Originally posted by jpkeates View Post
                          The situation we are discussing arises because "the other guy" has already decided not to follow the rule of law.
                          They have decided not to pay rent that they agreed to, they have blocked the landlord from letting their property to anyone else.
                          I can understand the point of view, but there is the old saying that two wrongs do not make a right. I prefer not to get too involved in ethical questions on a legal site and restrict myself to the point I made above that if you bend the law the suit.your own convenence you cannot complain too loudly if others do it.

                          Comment


                            #28
                            Originally posted by Lawcruncher View Post
                            I can understand the point of view, but there is the old saying that two wrongs do not make a right. I prefer not to get too involved in ethical questions on a legal site and restrict myself to the point I made above that if you bend the law the suit.your own convenence you cannot complain too loudly if others do it.
                            Totally understand.
                            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                            Comment

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