Surrender of lease- deed or letter?

[budgie]

Dear all,
First post but need advice. I have two tenants, one of whom is unable to pay rent due to financial difficulties but has instead indicated that he has with-held rent due to failure of maintenance of the property (minor maintenance delayed for 2 months but now completed). We have agreed to end the tenancy 3 months early as I would rather get them out of the flat than have to chase an unreliable tenant for rent. I am now missing half of one month's rent, i.e. have received 2 1/2 months' rent. Questions:
1) Do I need a solicitor to draw up a deed of surrender or can I use one from the net, or even a letter of surrender of lease- I have two links but unable to use them as haven't posted enough.
2) The tenant has strongly suggested that he with-held rent due to failure of maintenance. This has now been completed and I suspect that this was actually an excuse as he is not able to afford to pay. However, I hold their final month's rent- do I suggest that I am willing to surrender the lease on condition that I with-hold the rent owing before returning the rest? I feel this would be fair but really want a hassle free life.

[Snorkerz]

Dear all,
First post but need advice. I have two tenants, one of whom is unable to pay rent due to financial difficulties but has instead indicated that he has with-held rent due to failure of maintenance of the property (minor maintenance delayed for 2 months but now completed). We have agreed to end the tenancy 3 months early as I would rather get them out of the flat than have to chase an unreliable tenant for rent. I am now missing half of one month's rent, i.e. have received 2 1/2 months' rent. Questions:
1) Do I need a solicitor to draw up a deed of surrender or can I use one from the net, or even a letter of surrender of lease- I have two links but unable to use them as haven't posted enough.
2) The tenant has strongly suggested that he with-held rent due to failure of maintenance. This has now been completed and I suspect that this was actually an excuse as he is not able to afford to pay. However, I hold their final month's rent- do I suggest that I am willing to surrender the lease on condition that I with-hold the rent owing before returning the rest? I feel this would be fair but really want a hassle free life.

Deed of surrender is not needed, just written proof that they are surrendering their rights to the tenancy. However, if they decide not to go, the paper is worthless - ie you can't remove them without a court order. You would only be likely to get this if the tenant was 2 months behind on the rent (section 8) or at the end of their fixed term (section 21).

Witholding rent for minor repairs is unlikely to be a successful argument - unless the tenant used the witheld rent to effect the repairs themselves.

I am worried about the 'last months rent'. This is almost certainly a deposit, which should have been protected in one of the 3 government approved schemes. If it isn't, you could have considerable difficulties if T realises it is unlawful and takes the issue to court. There is a fixed sanction of 3 times the value of the deposit. You can not start the section 21 process if the deposi isn't protected.

[budgie]

I let the flat via letting agents and I have been informed that final rent reservation is legal as it is accepted as rent and not a deposit, i.e. no money is retained by me at the end of the tenancy.
I feel I am being accommodating to agree to a surrender of lease, so could I agree to it with the proviso that any monies owed to me (currently 1/2 a month's rent) are paid?

[Snorkerz]

I have been informed that final rent reservation is legal

Who advised you of this? A solicitor who knows what he is talking about? Or maybe one of the deposit schemes?

Your choice of course - but if you were given this info by the letting agent, I would get it confirmed by a solicitor as the agency staff do not have to have any qualifictions whatsoever.

“tenancy deposit”, in relation to a shorthold tenancy, means any money intended to be held (by the landlord or otherwise) as security for—
(a)the performance of any obligations of the tenant, or
(b)the discharge of any liability of his,
arising under or in connection with the tenancy

Paying the last months rent is covered by both 212(8)(a) and 212(8)(b)

[Lawcruncher]

Deed of surrender is not needed, just written proof that they are surrendering their rights to the tenancy.

Better to put it this way:

There are two ways of effecting a surrender: express or implied.

An express surrender can only be made by deed. If a deed is executed it puts the matter beyond doubt.

An implied surrender takes place by operation of law. All the circumstances need to be looked at to see if they show an intention by both parties that the tenancy should be surrendered. There is often room for doubt whether a surrender has in fact taken place and if so on what terms.

A deed of surrender is quite straightforward so long as you make sure all the conditions are met beforehand or at the same time as the deed is surrendered. Here is a precedent:

A Deed of Surrender dated [leave space to write in date]2010

1. Parties

1.1 The Tenant: [insert tenant's full name and address]

1.2 The Landlord: [insert landlord's full name and address]

2. Definitions

In this Deed:

2.1 "the Agreement" means a Agreement dated [insert date] made between the Landlord (1) and the Tenant (2)

2.2 "the Premises" means [briefly describe premises] as more particularly described in the Agreement

2.3 "the Tenancy" means the tenancy of the Premises arising under the Agreement and all other (if any) the estate right and interest of the Tenant in the Premises

2.4 "the Tenant's Obligations" means the obligations of the Tenant arising under the Tenancy

2.5 "the Landlord's Obligations" means the obligations of the Landlord arising under the Tenancy

3. Surrender

The Tenant surrenders the Tenancy to the Landlord

4. Acceptance

The Landlord accepts the surrender

5. Mutual Release

5.1 The Tenant releases the Landlord from the Landlord's Obligations

5.2 The Landlord releases the Tenant from the Tenant's Obligations

6 Deed

This instrument is executed by the parties as their deed

[To be printed in duplicate one copy to have at the end:]

Signed as a deed by the Tenant
in the presence of

[and the other:]

Signed as a deed by the Landlord
in the presence of

[Each party should sign opposite the "signed as a deed" wording in the presence of an independent witness who should sign and write his or her name and address underneath the "signed as a deed" wording]

***

(a) Upon being satisfied that you will get possession of the premises and (b) after you have received from the tenant all sums it has been agreed he should pay and (c) everything has been done that needs to be done to ensure that any deposit goes to whoever is to receive it, both parts of the deed should be dated with the same date. The tenant should hand to you the part he has signed and you should then hand to the tenant the part you have signed.

If the above proves useful I politely request you make a contribution to a cancer charity.

N.B. For the record and for the avoidance of doubt there is no relationship of lawyer and client between us and I owe you no duty of care. You use the form entirely at your own risk. For full professional advice backed by indemnity insurance consult a solicitor or a licensed conveyancer.

[Thyrsis]

A deed of surrender is quite straightforward so long as you make sure all the conditions are met beforehand or at the same time as the deed is surrendered. Here is a precedent:

A Deed of Surrender dated [leave space to write in date]2010

1. Parties

1.1 The Tenant: [insert tenant's full name and address]

1.2 The Landlord: [insert landlord's full name and address]

2. Definitions

In this Deed:

2.1 "the Agreement" means a Agreement dated [insert date] made between the Landlord (1) and the Tenant (2)

2.2 "the Premises" means [briefly describe premises] as more particularly described in the Agreement

2.3 "the Tenancy" means the tenancy of the Premises arising under the Agreement and all other (if any) the estate right and interest of the Tenant in the Premises

2.4 "the Tenant's Obligations" means the obligations of the Tenant arising under the Tenancy

2.5 "the Landlord's Obligations" means the obligations of the Landlord arising under the Tenancy

3. Surrender

The Tenant surrenders the Tenancy to the Landlord

4. Acceptance

The Landlord accepts the surrender

5. Mutual Release

5.1 The Tenant releases the Landlord from the Landlord's Obligations

5.2 The Landlord releases the Tenant from the Tenant's Obligations

6 Deed

This instrument is executed by the parties as their deed

[To be printed in duplicate one copy to have at the end:]

Signed as a deed by the Tenant
in the presence of

[and the other:]

Signed as a deed by the Landlord
in the presence of

[Each party should sign opposite the "signed as a deed" wording in the presence of an independent witness who should sign and write his or her name and address underneath the "signed as a deed" wording]

***

(a) Upon being satisfied that you will get possession of the premises and (b) after you have received from the tenant all sums it has been agreed he should pay and (c) everything has been done that needs to be done to ensure that any deposit goes to whoever is to receive it, both parts of the deed should be dated with the same date. The tenant should hand to you the part he has signed and you should then hand to the tenant the part you have signed.

If the above proves useful I politely request you make a contribution to a cancer charity.

Thanks for providing this, I'm hoping it will be useful! And a donation to Cancer Research is on its way.