Tenant leaving early. Best way to enforce Tenancy Agreement?

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    Tenant leaving early. Best way to enforce Tenancy Agreement?

    Within four days of his tenancy starting last month, my tenant complained of a couple of incidents of rats in the house – his dog had caught one on the first floor and the next day chased one into the garden.

    My tenant was so freaked out by these incidents that he asked me to release him from his contract, and, not wanting to have an unhappy tenant on my hands, I agreed to allow him to leave after a month without having to forfeit any of his deposit for not fulfilling the notice provisions of the contract.

    However, I have said to him that because I hold him partly responsible for the rats coming into the house – a) I am certain that there was no infestation immediately before he moved in; b) he removed the sonar device I had installed following a mouse infestation in the winter saying he believed the sonar was bothering his dog; c) he was throwing down food for his dog on the garden patio (which I believe caused the second rat to enter the house) – and because I have since his complaint done everything possible – called in the council, put down traps, installed an electromagnetic device, blocked up potential entry points, etc, etc – so that there have been no further incidents, no droppings found, etc; and because even he has agreed that the house is perfectly fit for habitation and he has not rushed to move out – I have said to my tenant that I will ask him, as stipulated in the tenancy agreement, to stump up the money for the estate agent's fee, which my agent – who says they don't do refunds – has told me I can claim back from my tenant's deposit. My tenant is adamant, however, that we will not pay the fee and that he was entitled to break the contract because there was a 'vermin infestation'.

    So, my question is: is my tenant correct to assert that the above facts allow him to avoid the stipulation of the tenancy agreement that says if he breaks it he becomes liable for the agent's fees; or am I right to insist that even though I've let him off without having to provide a lengthy period of notice, there exist no reasons for him to avoid the clause on paying the agent's commission?

    Apologies for long post and thanks in advance for responses.

    #2
    Can you clarify when the tenancy actually started? You say T complained of rats 'within four days of the tenancy starting last month', but then you say he removed a sonar device last winter?

    Edit: is the property let furnished or unfurnished, and is there any disrepair which may be associated with the rats entering the house?

    Comment


      #3
      Apologies for not being clearer.

      The tenancy started 20 May and the sonar device was installed for the previous tenants who complained of mice over the winter – their problem was solved February time, but I left the device on because I regarded it as effective. Indeed, in between tenancies – while I was at the house for three weeks doing repairs and so on – I noticed no signs of rodents. I made no secret of the sonar device for the new tenant – even including it in the inventory – but he took it down a couple of days after moving in because he said it was bothering his dog. It was then that he reported a rat in the house.

      The property is semi-furnished, and the house is in very good repair. The council pest control identified air bricks as the possible point of entry from outside and I have now covered these with mesh. Another possible point of entry was where the electricity cable enters the house and I blocked this with foam and wire wool. I've identified holes inside the house – not associated with disrepair, but just your usual gaps – and have also blocked these with foam and wire wool.

      Comment


        #4
        I would say that the rodent problem is likely to have been caused by the new tenants 'non-tenant-like actions' but I percieve your problem as being that you have offered to terminate the agreement early, and did not (at the time) impose any obligation upon the tenant to pay your re-let fees.

        Had you not done so, you could have either forced the tenant to stay, or released him if he agreed to your terms.

        You have released him without terms, I don't think you can go back now and say - oh, you know I said you could go, well you can go, but only if you pay £350.

        Comment


          #5
          Originally posted by johnkimon View Post

          My tenant was so freaked out by these incidents that he asked me to release him from his contract, and, not wanting to have an unhappy tenant on my hands, I agreed to allow him to leave after a month without having to forfeit any of his deposit for not fulfilling the notice provisions of the contract.

          However, I have said to him that because I hold him partly responsible for the rats coming into the house............... – I have said to my tenant that I will ask him, as stipulated in the tenancy agreement, to stump up the money for the estate agent's fee, which my agent – who says they don't do refunds – has told me I can claim back from my tenant's deposit.
          There's some contradiction between saying T can leave without forfeiting the deposit and saying T has to pay agent fees. Please clarify.

          Also, agent saying they 'don't do refunds' doesn't mean anything - check what the contract says.

          My tenant is adamant, however, that we will not pay the fee and that he was entitled to break the contract because there was a 'vermin infestation'.
          I do not think T is automatically entitled to break the contract as it is quite possible his negligent actions - leaving food out - caused the rats to enter the house. You have also taken prompt preventative action.

          So, my question is: is my tenant correct to assert that the above facts allow him to avoid the stipulation of the tenancy agreement that says if he breaks it he becomes liable for the agent's fees; or am I right to insist that even though I've let him off without having to provide a lengthy period of notice, there exist no reasons for him to avoid the clause on paying the agent's commission?
          The basic position is that the T is bound by the terms of the contract to pay rent for the whole of the fixed term. If T wants an early surrender of the tenancy, LL can demand a payment as a condition of agreeing to release T from the contract (it makes no difference if this payment goes towards agent's fees or a holiday in Spain); if T refuses to pay, then he remains liable for rent for the remainder of the fixed term. That's the basic position.

          If the T is still occupying the property, then the tenancy is still in place and no surrender has occurred either by Deed or by operation of law. As such, I think you are still perfectly free to negotiate or re-negotiate the terms of a surrender. In short, if you originally said okay no charge, then later said BTW you'll be charged for this, I don't think this matters.

          Comment


            #6
            p.s. read this link about pests and LL's liability
            http://blog.painsmith.co.uk/2010/09/...rds-liability/

            Comment


              #7
              There's some contradiction between saying T can leave without forfeiting the deposit and saying T has to pay agent fees. Please clarify.
              My logic in not asking him to forfeit deposit for lost rent but insisting that he covers letting fees was just good will and also a desire once the tenant expressed the wish to leave to get rid of an unhappy tenant rather than force him to stay.


              Also, agent saying they 'don't do refunds' doesn't mean anything - check what the contract says.
              The only reference I can find in my contract to the agent's insistence that they don't return fees is this: 'The Agent in its capacity for the Landlord will collect the deposit plus one month's rent in advance from the tenant upon signing hereof and account to the Landlord for the balance less agreed commission. Thereafter the Agent shall not be liable for any breach of the terms of this assignment by either the Landlord or the Tenant.'

              Can this last sentence not be interpreted as entitling the Agent to hold on to the fee I paid him?

              I'm uncertain about this because there is also a clause in the contract that states: 'In the event that the tenant vacates the property prior to the expiration of the contract then the tenant is fully responsible for the commission paid to the agency by the landlord.'

              So, to answer Snokerz' point about 'releasing the tenant without terms'; all I've done so far is agree verbally and by email not to charge him rent over and above the period he stays in the house and, also verbally and by email, made him aware of the clause regarding him being liable for the agent's fee and expressed my insistence that he pay it. My agent has said that he will not refund the fee to me or ask the tenant to pay it, and that it's for me to try and collect the fee from my tenant's deposit. I'm happy to go down this road – though my tenant will claim to the DPS that he was entitled to break the contract because of 'vermin infestation'. From your responses, it seems I will have a good case – based on my prompt action and the tenant's neglect – to put to the DPS that my tenant was not entitled to break his contract and claim my fee from him.


              Regarding this:

              If the T is still occupying the property, then the tenancy is still in place and no surrender has occurred either by Deed or by operation of law. As such, I think you are still perfectly free to negotiate or re-negotiate the terms of a surrender. In short, if you originally said okay no charge, then later said BTW you'll be charged for this, I don't think this matters.
              Are you saying that even though I've agreed verbally and by email to accept the tenant's notice, I can still insist on clauses in the contract that state that he can only give notice 'after an initial period of four months has elapsed' and that 'should the tenant vacate the said premises prior to the expiry of the tenancy he shall be held responsible for payments of full rent until such time a replacement has been found or the tenancy has expired'?

              Comment


                #8
                Originally posted by johnkimon View Post
                My logic in not asking him to forfeit deposit for lost rent but insisting that he covers letting fees was just good will and also a desire once the tenant expressed the wish to leave to get rid of an unhappy tenant rather than force him to stay.
                Okay, so it sounds like you did make your acceptance of T's offer to surrender conditional upon T paying you something.

                The only reference I can find in my contract to the agent's insistence that they don't return fees is this: 'The Agent in its capacity for the Landlord will collect the deposit plus one month's rent in advance from the tenant upon signing hereof and account to the Landlord for the balance less agreed commission. Thereafter the Agent shall not be liable for any breach of the terms of this assignment by either the Landlord or the Tenant.'

                Can this last sentence not be interpreted as entitling the Agent to hold on to the fee I paid him?
                This isn't the relevant bit of the contract. There must be something else about how the commission is charged/calculated, e.g. as a percentage of rent?

                I'm a LL and I use an agent; I pay a % commission on the rent, in advance. If a T signs a 12 month contract with a break clause and exercises the break clause at 6 months, the agent refunds me half of the 12 months' commission I paid in advance. This is normal practice.

                If your contract doesn't allow this, bear in mind that agent's contracts aren't always enforceable (Google Foxtons/Office of Fair Trading).

                I'm uncertain about this because there is also a clause in the contract that states: 'In the event that the tenant vacates the property prior to the expiration of the contract then the tenant is fully responsible for the commission paid to the agency by the landlord.'
                T does not have a contract with the agent. The agent can't make T liable for the fees you and agent agree between you. (This suggests to me that other parts of the agent's contract are similarly unenforceable).

                So, to answer Snokerz' point about 'releasing the tenant without terms'; all I've done so far is agree verbally and by email not to charge him rent over and above the period he stays in the house and, also verbally and by email, made him aware of the clause regarding him being liable for the agent's fee and expressed my insistence that he pay it. My agent has said that he will not refund the fee to me or ask the tenant to pay it, and that it's for me to try and collect the fee from my tenant's deposit. I'm happy to go down this road
                I can tell you now that you won't succeed in charging T for agent's fees. You need to forget about this clause in the contract between you/agent (possibly also in the tenancy contract between you/T?). What is relevant is that the tenancy contract between you/T is binding and T is liable for rent.

                Think of it this way: take a six month contract @ £1,000 pcm. T leaves after 3 months and stops paying rent. While the contract might say T must pay £500 agent fees if he does this, the basic position is that T is liable for a further £3,000 in rent. You can't make T liable for more than the rent that is lawfully due, e.g. £3,000 + £500 agent fees. What you can do is negotiate a surrender with T whereby you say you will agree if T pays, say, £1,000 or £1,500 (whatever you think is fair and which covers your costs/likely void period) and then you both sign a Deed of Surrender ending the tenancy on an agreed date.

                Are you saying that even though I've agreed verbally and by email to accept the tenant's notice, I can still insist on clauses in the contract that state that he can only give notice 'after an initial period of four months has elapsed' and that 'should the tenant vacate the said premises prior to the expiry of the tenancy he shall be held responsible for payments of full rent until such time a replacement has been found or the tenancy has expired'?
                Yes. (You don't even need the second bit quoted; T's liable for rent anyway). T can't 'give notice' during the first four months of the tenancy. He can only offer to surrender; you are free to accept or refuse this offer. If you accept, you are free to make your acceptance conditional on T making a payment to you, as it seems you've already done, i.e. you've said "I'll let you off if you pay £X". T can choose to accept or refuse; if he refuses, he remains liable for rent.

                The fact is, you haven't formalized this surrender as yet - a formal surrender must be executed as a Deed (drafted by a solicitor) - and it's absolutely fine to insist on the payment you've asked for or, if T refuses to pay it, treat the tenancy as continuing with T liable for rent. Do not release the deposit unless and until the tenancy ends and the financial side is settled.

                The rats are a 'red herring' (so to speak) As I said, I don't think T has a strong case to argue that it entitles him to repudiate the contract, when T has been negligent and you've taken prompt preventative action. Also note that deposit scheme ADR is optional; you can always choose to have any dispute settle in the county court, where, TBH, you'd have a far better chance of a fair result because a judge is obviously far better qualified to judge than ADR adjudicators, and the latter are noted for favouring the T's side in disputes.

                Comment


                  #9
                  I'm really grateful for your detailed response, westminster. It's given me a lot to ponder and information to act on. I'm due to see and speak with tenant and agent tomorrow and will deploy the information and advice you've offered. I'm going to proceed more carefully. I'm particularly grateful for advice on formally negotiating a surrender. I will look into this further.

                  Comment


                    #10
                    Tenant wants to end contract early. Implications of accepting notice by email

                    This is a follow on question to one I asked the other day about breaking of tenancy agreement.


                    My tenant, on a one year contract, asked to move out after a few days claiming rodent infestation, offering one month's notice. Despite my belief that the tenant is partially responsible for the incidents – which certainly to do not amount to an infestation – and my prompt and effective action to deal with the issue; I agreed, both verbally and by email, to allow my tenant to leave on his chosen date. However, I said, to him that I would still expect him to abide by clauses in the contract that, in the event of the tenancy ending early, makes him liable for the agent's commission and for any void period between tenancies. He is refusing to accept these terms and is saying that by agreeing to his notice by email I've agreed to absolve him of all his obligations in the tenancy agreement.

                    Previous advice on this forum is that the clause in the contract regarding his obligation to pay the agent's commission is unenforceable and that a tenancy can only end by Deed of Surrender. Tenant is refusing to sign Deed, claiming email I sent him regarding notice is legally binding.

                    Also, tenant is also now refusing me access to property to carry out repairs/inspection until after his tenancy ends on the utterly malicious grounds of 'harassment', claiming I've been at the house too often – I've been round four times in three weeks to investigate and do repairs regarding the rodent problem. Any advice on how I should handle this?

                    Comment


                      #11
                      Tenant leaving early. Best way to enforce Tenancy Agreement?

                      I've got a tenant ending his tenancy early. I've agreed to let him go and not insist on full six months' notice, as contractually stipulated; but have made clear my intention to make him stick by contractual provisions that state if tenant leaves early he becomes liable for agent's commission and for any void periods. Are these contractual provisions enforceable in practice and is the best way to enforce them through seeking deductions from his deposit and the DPS process? Thanks

                      Comment


                        #12
                        Is this the same tenancy as in your previous threads:
                        http://www.landlordzone.co.uk/forums...otice-by-email
                        http://www.landlordzone.co.uk/forums...ancy-agreement

                        Comment


                          #13
                          Originally posted by johnkimon View Post
                          I agreed, both verbally and by email, to allow my tenant to leave on his chosen date. However, I said, to him that I would still expect him to abide by clauses in the contract that, in the event of the tenancy ending early, makes him liable for the agent's commission and for any void period between tenancies. He is refusing to accept these terms and is saying that by agreeing to his notice by email I've agreed to absolve him of all his obligations in the tenancy agreement.

                          Previous advice on this forum is that the clause in the contract regarding his obligation to pay the agent's commission is unenforceable and that a tenancy can only end by Deed of Surrender. Tenant is refusing to sign Deed, claiming email I sent him regarding notice is legally binding.
                          We've been through all this before. T can't 'give notice', he can only offer to surrender. You're free to agree or refuse to accept the surrender.

                          You can't make T liable for any sum in excess of the rent he is already liable for, but if T wants an early surrender, you can ask for a payment in exchange for agreeing to the surrender (which is what you did). If T will not agree to this, then you can treat the tenancy as continuing and pursue T for unpaid rent as it falls due.

                          If T vacates and you re-let the property, or do other acts inconsistent with the tenancy continuing, this will comprise an acceptance of T's offer to surrender (even if he doesn't give you the payment requested).

                          Also, tenant is also now refusing me access to property to carry out repairs/inspection until after his tenancy ends on the utterly malicious grounds of 'harassment', claiming I've been at the house too often – I've been round four times in three weeks to investigate and do repairs regarding the rodent problem. Any advice on how I should handle this?
                          If the contract says you retain rights of access to make inspections/repairs, then you need a court order to enforce access if T refuses to comply. To avoid any future allegation of disrepair etc, simply write regularly, requesting access and offering a couple of alternative appointments; ask T to confirm which is convenient or to suggest another date which would be convenient. Keep copy letter and get a free certificate of posting. Assuming no reply, in the next letter refer back to the previous letter, noting the lack of response, again offer appointments etc. This creates a paper trail showing that you made reasonable attempts to gain access in order to fulfill your repairing obligations.

                          If there is a genuine full-on emergency, you can enter to repair without T's consent.

                          Comment


                            #14
                            Three closely related (same property/tenant/landlord) have been merged.
                            I also post as Mars_Mug when not moderating

                            Comment


                              #15
                              Originally posted by johnkimon View Post
                              Also, tenant is also now refusing me access to property to carry out repairs/inspection until after his tenancy ends on the utterly malicious grounds of 'harassment', claiming I've been at the house too often – I've been round four times in three weeks to investigate and do repairs regarding the rodent problem. Any advice on how I should handle this?
                              Yes, tenant is quite within his right to prevent you accessing the property and breaching his right to 'quiet enjoyment'.
                              Your tenancy agreement may give you a right to access the property, but you can only enforce this through a court order.

                              The only exeption to this is a true emergency (you peer through the letterbox and see a blood spattered hallway, not you see a bottle of milk going off!).

                              if you need access for repairs, write to the tenant offeing a number of suitable times/dates. If he fails to respond, repeat every couple of weeks. Keep copies and get a free certificate of posting for each one. This way you have a paper trail if T decides to claim you have failed to comply with your repairing obligations.

                              Comment

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