Rent overpayment refund if tenancy agreement ends early?

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    Rent overpayment refund if tenancy agreement ends early?

    I would really appreciate some advice on the following......

    I signed up to a 12 month shorthold tenancy agreement in Feb 09. Due to a house purchase I contacted my landlord (via lettings agent) to discuss ending the tenancy. It was agreed that the tenancy could end once a new tenant was found and that I would pay the agency reletting fee of £1092.50.
    I paid my rent on the 13th September for the period 13th september to 12th October. Viewings took place and the agency advised they had a new tenant keen to move in straight away. It was agreed that I would vacate the property and my tenancy agreement would terminate on the 24th September with the new tenant taking possesion on the 25th September.

    I paid the reletting fee as agreed.

    I then had to chase my landlord for the return of my deposit and refund of overpaid rent. After four weeks he finally returned the deposit but is refusing to refund the overpayment of rent stating we seem to have a "misunderstanding." He is stating he "does not deem it necessary to make a goodwill gesture and repay the overpayment." He also stated that as the rent is paid on a monthly basis in advance my calculations for a refund are "meaningless."

    The thing is I have a letter from the letting agency stating the landlord agrees to us terminating the tenancy early and it clearly states "any rent you have paid after a new tenancy agreement comes into effect will of course be refunded to you."

    The landlord has stated the agency did not speak to him regarding a refund and that its not a legal requirement and if we have an issue maybe we should take it up with the letting agent!

    I'm now considering taking him to the small claims court as the sum in question is £570. Any advice on whose right here would be appreciated before I start filling out all the forms!!

    #2
    Crossed wires! I think there may be laws saying that advance rent is not repayable. Is there a clause in the tenancy agreement saying that overpaid rent will be refunded by the landlord? If I were your ex-landlord and my agent had made a promise to repay unused rent without my permission, I would make the agent honour that promise.

    Comment


      #3
      I'll check the agreement when I get home.

      So if the new tenant had been found prior to my rent due date of 13th September would I have been expected to pay a full months rent or just for the period 13th September to my tenancy end on 24th?

      Just seems unfair that the landlord has received rent from two seperate tenants for the same period..... especially since I have it in writing (as part of the agreement for surrendering early) from the agency (acting on his behalf) that any overpayment would be refunded.

      Surely his comments about the agency are for him to take up with them as a seperate issue...?

      Comment


        #4
        Does the letter from the agents not mention anything in regards to "subject to landlords consent".

        If it doesn't then the agent acting on behalf of the landlord has certainly agreed to those conditions which strengthens your case I would suspect.
        If I am offering advice, I am doing so purely because I think I know the answer and would like to help, but... and its a big but, I do occasionally get things wrong, as anyone does.

        So please don't sue.

        Comment


          #5
          Apologies for the double post.

          As the landlord is accepting rent from another party, and unfortunately my legal knowledge doesn't extend to this area, but I am pretty certain that basically an agreement has not been reached for your tenancy to terminate early, and therefore you have a right to the keys and possession of the property.

          You agreed to certain terms for surrender of the tenancy, however the landlord, allegedly hasn't. You can't be forced to surrender the property until false pretences.

          I would hope someone can help clarify this, but I suspect your tenancy, if the landlord has refused the mutual agreement to terminate, then your tenancy is still in force, and the property has been re-let illegally.

          It may go some way to getting your rent refunded if you were to demand your keys and right to re-enter the property as the tenant, which would be your legal right to do so.

          EDIT: Again, a better legal mind is needed for clarification, but it would seem to fall very clearly under the Protection from Eviction Act 1977 and the landlord (or the landlords agent) has committed a criminal offence (perhaps accidentally with an awkward LL) by reletting the property without proper mutual consent to surrender the tenancy.
          If I am offering advice, I am doing so purely because I think I know the answer and would like to help, but... and its a big but, I do occasionally get things wrong, as anyone does.

          So please don't sue.

          Comment


            #6
            Letter from agency states......

            "further to your recent letter I write to confirm that your landlord is agreeable to you terminating your tenancy early on the following conditions..."
            Letter then states I'm responsible till a new tenant is found, that I'm responsible for the reletting fee and that any rent paid after new tenancy would be refunded.

            Comment


              #7
              Looks to me like the agent has made a massive assumption that the landlord has agreed to these terms (and frankly.. paying the costs of the landlord for reletting is about as reasonable as they get).

              I hope someone else can reply to this, but I really do suspect that the agent has, not purposefully, but broken the law by moving tenants in before confirming the current agreement has been terminated by mutual consent.

              As things stand, and I may stand corrected, but I doubt it, but technically you are still the tenant of the property.

              The agent and landlord may have to modify their attitude if you do start demanding your legal right to resume the tenancy as it has never been terminated by mutual consent.
              If I am offering advice, I am doing so purely because I think I know the answer and would like to help, but... and its a big but, I do occasionally get things wrong, as anyone does.

              So please don't sue.

              Comment


                #8
                It is an established principle that rent due and paid in advance is not refundable. So on a forfeiture there is no chance of a refund. On a surrender it needs to be negotiated. In this case it was negotiated. If the deal was negotiated by the landlord's agent the landlord cannot pick and chose which parts of the deal he now accepts arguing that the agent had no authority. If he says that the agent had no authority then ask for the re-letting fee to be refunded since that was also agreed through the agent.

                Since you have it in writing I would sue. Whether you should sue the landlord, the agent or both is a question I leave a litigator to answer.

                Comment


                  #9
                  Originally posted by NoMoreFaith View Post
                  I hope someone else can reply to this, but I really do suspect that the agent has, not purposefully, but broken the law by moving tenants in before confirming the current agreement has been terminated by mutual consent.
                  I do not think that the facts as reported support this view. I think there has been a surrender. Anyway, it is not really a line of argument the OP wants to follow as if she still has a tenancy she is liable to pay rent.

                  Comment


                    #10
                    Many thanks all.

                    Lawcruncher - Thanks for your advise. We are thinking of pursuing the landlord through the small claims court but looking through numerous other threads I think we may have come to the refund figure incorrectly. We had worked out the number of days in the month rental period in question and then divided it to work out the daily rent but I have seen other threads stating you should work out the total rent for the 12 months and then divide by 365 to come up with the daily rent. Can you advise?

                    Comment


                      #11
                      Originally posted by Ex Tenant View Post
                      Many thanks all.

                      Lawcruncher - Thanks for your advise. We are thinking of pursuing the landlord through the small claims court but looking through numerous other threads I think we may have come to the refund figure incorrectly. We had worked out the number of days in the month rental period in question and then divided it to work out the daily rent but I have seen other threads stating you should work out the total rent for the 12 months and then divide by 365 to come up with the daily rent. Can you advise?
                      Jeffrey is the expert on apportionments.

                      Comment


                        #12
                        Originally posted by Ex Tenant View Post
                        Many thanks all.

                        Lawcruncher - Thanks for your advise. We are thinking of pursuing the landlord through the small claims court but looking through numerous other threads I think we may have come to the refund figure incorrectly. We had worked out the number of days in the month rental period in question and then divided it to work out the daily rent but I have seen other threads stating you should work out the total rent for the 12 months and then divide by 365 to come up with the daily rent. Can you advise?
                        I wouldn't worry about it; the difference is minimal and, if the court finds in your favour, it'll apportion the appropriate sum. You won't be penalized for not knowing.

                        E.g. Let's say rent was £1000 per calendar month.
                        Calculated as you've done it; £1000 divided by 30 days = £33.33 per day.
                        Calculated as £12,000 divided by 365 = £32.88 per day.

                        A difference of 45p per day.

                        Comment


                          #13
                          Annual basis- always. Calculate total rent per year, then divide by 365 (or 366 if appropriate). See Apportionments Act 1870!
                          JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                          1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                          2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                          3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                          4. *- Contact info: click on my name (blue-highlight link).

                          Comment


                            #14
                            Many thanks, you guys have been extremely helpful!!

                            Comment


                              #15
                              Just wanted to say thanks again for your advice. It gave me the confidence to stand my ground and I have finally received a cheque from my old landlord for the over-payment of rent!

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