Quiet enjoyment of unoccupied property

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    Quiet enjoyment of unoccupied property

    Hello,

    I have received a lot of ideas on various issues by reading this forum, and it has enabled me to make more reasonable judgements on a number of points. I have what I think is a new question regarding the perennial question of access vs. quiet enjoyment.

    The situation is that T has served 4 weeks' notice to L, but is moving immediately and L refuses early surrender, wanting the notice period's rent and the opportunity to show the flat for sale. As rent is still being paid, are all of T's rights regarding quiet enjoyment and sole possession intact for the 3 weeks after he moves, or is there an element of residency and the property being "home" to these rights?

    Thank in advance for any clarification you can offer.

    #2
    Too vague. What type of letting is it, was a fixed term granted [how long?], has such term expired, and is rent due monthly in advance?
    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


      #3
      Apologies, and thank you for the prompt reply.

      It is an AST which has rolled over into a statutory periodic tenancy and rent is due monthly in advance.

      Comment


        #4
        So the landlord wants to have his cake and eat it.

        He won't go to jail as many on the forum like to say, but he should have been flexible, seeing as the tenant does not have to be.
        Allow tenants to protect their own deposits. I want free money when they do it wrong

        Comment


          #5
          Originally posted by llzllt View Post
          Apologies, and thank you for the prompt reply.

          It is an AST which has rolled over into a statutory periodic tenancy and rent is due monthly in advance.
          Are you T, L, or L's Letting Agent?
          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


            #6
            I am T and have a Letting Agreement with L.

            However, I hope the question is a general one: is the payment of rent enough to be entitled to quiet enjoyment / sole occupancy of a property; or is there an element of the property actually being in use as your home?
            Last edited by llzllt; 17-06-2010, 15:07 PM. Reason: accidentally reversed T and L in reply!

            Comment


              #7
              As T holding an SPT, you can give Notice to Quit. Disregard all relevant provisions in the written Letting Agreement, as long as your Notice:
              a. runs for at least the length of an SPT period [= one month]; and
              b. runs up to & inc. the end of an SPT period.

              Whether the property is your home or not is relevant only because none of the 1988 Act applies unless it's your only/main home.
              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
                Thank you.

                If it is the case that "none of the 1988 Act applies unless it's [my] only/main home", perhaps my question would have been better phrased as:

                Are the expectation of quiet enjoyment and sole occupancy due to the 1988 Act (in which case I would lose them on moving to a new residence) or are they due to some other legal framework (in which case they would endure so long as I am paying rent)?

                I have given Notice to Quit, which runs for at least the length of an SPT period; and
                runs up to & inc. the end of the current SPT period.

                Comment


                  #9
                  Originally posted by llzllt View Post
                  Are the expectation of quiet enjoyment and sole occupancy due to the 1988 Act (in which case I would lose them on moving to a new residence) or are they due to some other legal framework (in which case they would endure so long as I am paying rent)?
                  Your rights under the Letting Agreement and statutory continuation are contractual. They do not arise just because the premises are your home- they would exist even if you were subletting- but the 1988 Act creates additional rights for T whose only/main home is the premises.
                  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


                    #10
                    Originally posted by thesaint View Post
                    So the landlord wants to have his cake and eat it.

                    He won't go to jail as many on the forum like to say, but he should have been flexible, seeing as the tenant does not have to be.
                    Go to jail for what?

                    It is not a case of LL wanting to have his cake and eat it; he is merely insisting on proper notice from the tenant, just as the tenant is entitled to proper notice from the LL. Why should LL agree an early surrender just because the T wants to move out immediately?

                    The tenancy agreement probably also contains a provision allowing LL to conduct viewings in the last month of the tenancy.

                    The likelihood of there being a breach of quiet enjoyment as a result of the viewings is very low given that the T is no longer in occupation.

                    Comment


                      #11
                      Originally posted by llzllt View Post
                      I am T and have a Letting Agreement with L.

                      However, I hope the question is a general one: is the payment of rent enough to be entitled to quiet enjoyment / sole occupancy of a property; or is there an element of the property actually being in use as your home?
                      In principle if a T is liable for rent and/or paying rent then they are entitled to quiet enjoyment of the property and you as LL should not be occupying it yourself.

                      If T has moved out and you want to occupy it, T's tenancy - and thus their liability for rent - should be terminated either by a Deed of surrender or by the expiry of a validly served notice by T or LL.

                      In short : the tenancy has either ended, or it has not. You cannot have your cake and eat it, I'm afraid.
                      '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


                        #12
                        Originally posted by mind the gap View Post
                        In principle if a T is liable for rent and/or paying rent then they are entitled to quiet enjoyment of the property and you as LL should not be occupying it yourself.

                        If T has moved out and you want to occupy it, T's tenancy - and thus their liability for rent - should be terminated either by a Deed of surrender or by the expiry of a validly served notice by T or LL.

                        In short : the tenancy has either ended, or it has not. You cannot have your cake and eat it, I'm afraid.
                        MTG - OP is T, not LL (is that a new code I have just invented?)

                        Comment


                          #13
                          Originally posted by Snorkerz View Post
                          MTG - OP is T, not LL (is that a new code I have just invented?)
                          Oh, I see. Well, the principle is still the same, I guess: either the tenancy is in force, or it is not. There are no half-measures!
                          '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


                            #14
                            Thank you all for the input.

                            Originally posted by jeffrey View Post
                            Your rights under the Letting Agreement and statutory continuation are contractual. They do not arise just because the premises are your home
                            In this context, let me expand on the question. In the usual end-of-tenancy situation where the TA includes both a "quiet enjoyment" clause and a "right to access on 24h notice to conduct viewings during the last month" clause, the conventional wisdom on this board seems to be that the "quiet enjoyment" generally wins as contract conditions do not affect statutes.

                            In the case where the property is tenanted (in the sense that T is paying rent to L for its use) but is unoccupied (in the sense that T has moved house already) does this conclusion remain valid? Or is it rather now just a question of two competing clauses in the contract without the statutory protection that would be there if you were "at home"?

                            The reason I ask is that I am accommodating L by offering a 2-hour window once a week for viewings. I am busy and am still responsible for the condition of the flat. I am not inclined to go much further out of my way, as the landlord has refused early surrender (which he is completely entitled to do). My concern is that since I am no longer resident, the "conventional wisdom" on viewings and access may not apply in this case.

                            Comment


                              #15
                              So the analysis in this case would seem to be that:

                              Protection from Eviction Act 1977 - is unlikely to be relevant (as I am leaving voluntarily) but still applies.

                              Housing Act 1988/1996 - do not apply as it is not my primary / only residence.

                              So if I move out, then it is a bare contract for rent? Since it is still an AST it seems like a strange result. Can there meaningfully be an AST without the 1988 Act applying?

                              Comment

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