Fixed term AST - request to break question

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    Fixed term AST - request to break question

    Here's my problem,

    3rd of August last year, we commenced an AST for six months. Shortly before the expiry, we were offered the chance to renew for a further 6 months, which we did (effective from 3rd Feb).

    In that time, we have been dutiful tenants, paying the rent, council tax etc on time.

    We rent via agents, and on the agreement, the Landlord's name is present, with a c/o of the agent. Indeed, the AST is signed by the agent & all of our dealings have been with the agent.

    There have been various problems with the property (unsafe railings, damp, ill fitted carpets) and although individually nothing we couldn't live with, various other things outside of the LL's control (parking issues, anti social neighbours etc) we decided to look elsewhere.

    We have subsequently found another property and have paid a deposit etc to the new LL. Having done this I phoned the manager of the Agents (who I beleive is a co-owner of the agency) and explained we had found somewhere else & could I serve notice. He said that would be no problem, sorry to see us leave etc, and that it had to be one month's notice which would take us up to 2nd July. I duly confirmed this in writing as requested. The following day, a member of his staff phoned me to arrange viewings which we arranged.

    Then out of the blue, the same member of staff phoned me today to say that the landlord does NOT consent to breaking the lease & expects us to remain there for the full term. I replied that they as agents had accepted my notice and as far as I was concerned the nbotice was accepted. They told me that they have nothing to do with it & it's all down to the landlord.

    Having checked the agreement, all I can find is the following;

    "The tenant may terminate the statutory periodic tenancy arising at the expiration of the term persuant to the Housing Act 1986 as amended by the Housing Act 1996 by giving to the Landlord notice in writing of not less than one month, to expire on the first day of a rental period."

    I'm awaiting a call back from the manager tomorrow as (perhaps conveniently) he wasn't in the office today.

    All of my dealings have always been with the agent (including rent paid to them) what I need to know is, as agent's, I believe they have accepted to break the tenancy. Is this correct?

    Also, my deposit is with DPA. I've already explained to them that whatever happens, we will be leaving on the agreed date so will we still be liable for the last months rent? How will this affect my deposit if I fail to pay the last months rent.

    Any advice would be greatly appreciated.

    Thanks

    #2
    Originally posted by bluetownbarry View Post
    3rd of August last year, we commenced an AST for six months. Shortly before the expiry, we were offered the chance to renew for a further 6 months, which we did (effective from 3rd Feb).
    So the fixed term expires on 2nd August 2010.

    Having checked the agreement, all I can find is the following;

    "The tenant may terminate the statutory periodic tenancy arising at the expiration of the term persuant to the Housing Act 1986 as amended by the Housing Act 1996 by giving to the Landlord notice in writing of not less than one month, to expire on the first day of a rental period."
    This relates to after the fixed term expires, not now.

    All of my dealings have always been with the agent (including rent paid to them) what I need to know is, as agent's, I believe they have accepted to break the tenancy. Is this correct?
    While the agent does act on behalf of the landlord, I doubt their 'acceptance' is binding, as nothing was signed. Did the agent put anything in writing to indicate that they agreed an early surrender?

    Also, my deposit is with DPA. I've already explained to them that whatever happens, we will be leaving on the agreed date so will we still be liable for the last months rent? How will this affect my deposit if I fail to pay the last months rent.
    (I assume you mean the DPS). If the property is not re-let between the date you leave and 2nd August, you will be liable for rent up to 2nd August. If you didn't pay, the LL would probably apply to the DPS adjudication service for the unpaid rent, (and he'd probably win).

    Comment


      #3
      Brilliant, thanks for the comprehensive response.

      In reply, yes apologies, typo on my part, yes I meant the DPS.

      The agent didn't confirm anything in writing, what's irksome about this whole thing is that in good faith acting on what the agent's told me, I went to see the new LL that evening and paid the deposit for the new house.

      I rather thought that I might be snookered on this after doing a bit of googling but I was rather hoping that by the agent accepting the notice that in some way may have become an issue between the LL and his agent and nothing to do with us.

      Whatever happens, we are now moving into the new house. When I speak to the manager at the agent's tomorrow I may well try and negotiate, I'm sure that they really don't want an unco-operative tenant for viewings & I will not be paying him the last months rent, so he is more than welcome to go through the hassle of the DPS to get his money back.

      What's frustrating is that in every other respect we have been good tenants who acted in good faith on the agent's advice.

      Still when all's said and done, it's a matter I suppose to chalk up to experience.

      Comment


        #4
        As a cheaper option, why don't you stay in your current property until 2nd August and ask new LL if he will wait? You could perhaps offer half rent for the missing month as a sweetner? You'd still be half a months up.

        Comment


          #5
          Good suggestion, however due to the various problems we've had with the property as well as having to put up with noise from an amatuer developer doing up the house next door for the last 5 months, other LLs over filling other nearby properties with immigrants, noise issues, our cars being damaged (none of which were present when we moved in) for the sake of our sanity we have to go!

          I'm hoping for the sake of one month they may see a little bit of reason here and at least try to offer some compromise.

          Thanks for the advice, much appreciated.

          Comment


            #6
            Westminster is correct that agreements relating to land need to be recorded in writing.

            That being said you can try to argue that the agreement is binding. You would essentially be arguing that there was an offer by you, which was accepted by the LL's agent. You would need to show that there was some form of consideration to back up your argument.

            Consideration is established by essentially showing that you have acted to your detriment in reliance of the agreement reached. An example would be the payment of the deposit for the new property. I am aware you paid the deposit before the agreement was reached, so that would not be sufficient consideration. Did you sign the tenancy agreement for the new property after the oral agreement?

            Although the argument is weak, it could be used as leverage for the LL to accept your offer, or might scare LL off chasing the arrears.
            PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

            Comment


              #7
              Originally posted by Paul Gibbs View Post
              agreements relating to land need to be recorded in writing.
              Well, no. Even an oral Agreement is valid provided that it creates only a letting for a term not exceeding three years.
              It's desirable that an Agreement relating to land be in writing- this can avoid a lot of later problems- but it's not essential to validity for short lettings.
              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


                #8
                The oral agreement between agent and tenant was for an early surrender of the tenancy a few weeks hence.

                If this had been formalized in a paper document, AFAIK that document would be a deed, not a contract (?) so surely an oral (unwitnessed) agreement would be insufficient to create anything binding.

                Nor has there been a surrender by operation of law. Whilst the agent did initiate plans for viewings, the tenant is still in occupation, which is consistent with the tenancy continuing.

                Comment


                  #9
                  Originally posted by westminster View Post

                  If this had been formalized in a paper document, AFAIK that document would be a deed, not a contract (?) so surely an oral (unwitnessed) agreement would be insufficient to create anything binding.
                  It would surely not be a deed unless it said it was, and unless signed and witnessed as such, would it? Just being written down doesn't make it a deed, I don't think.
                  'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                  Comment


                    #10
                    Originally posted by mind the gap View Post
                    It would surely not be a deed unless it said it was, and unless signed and witnessed as such, would it? Just being written down doesn't make it a deed, I don't think.
                    No, agreed. But isn't it the case that if an early surrender is formalized in writing, it must be in the form of a deed, i.e. a Deed of Surrender?

                    A Contract of Surrender wouldn't really make sense (*deliberate Jeffrey bait* ).

                    Comment


                      #11
                      (Sigh,) Yes, you're right. An agreement to surrender is effectively unenforceable.
                      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


                        #12
                        Originally posted by mind the gap View Post
                        It would surely not be a deed unless it said it was, and unless signed and witnessed as such, would it? Just being written down doesn't make it a deed, I don't think.
                        You're right too. Here's s.1(2) of the Law of Property (Miscellaneous Provisions) Act 1989:

                        An instrument shall not be a deed unless:
                        (a) it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and
                        (b) it is validly executed as a deed by that person or, as the case may be, one or more of those parties.
                        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


                          #13
                          Originally posted by jeffrey View Post
                          (Sigh,) Yes, you're right. An agreement to surrender is effectively unenforceable.
                          What about an amendment agreement to the tenancy agreement, agreeing to reduce the fixed term?

                          Comment


                            #14
                            If it were to be couched as a Deed**, it ought to be valid.

                            **- because no contractual consideration.
                            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


                              #15
                              Just an update, all's ok now.

                              Got a call this afternoon to say that the LL has now agreed to release with no penalties. Rather bizarrely, the property is already advertised in the local rag as being available early July. The local paper's cut off date for accepting adverts is Tuesday, & Wednesday morning I got a call saying they wouldn't release me!

                              Draw your own conclusions, I have!

                              Comment

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