6m ASTsigned and monies paid - now tenant changed mind and wants money back

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    6m ASTsigned and monies paid - now tenant changed mind and wants money back

    have a bit of a situation that has developed - which might be a common one?

    tenant signs a 6m AST lease in a houseshare and pays 3 weeks rent in advance (2weeks of this is held in lieu of deposit as we dont take deposits) and she is given keys

    a few days after she changes her mind and wants all the money back she has paid (i dont think she has moved in but still has the keys)

    she says she has been to CAB - and they have said that there is a "cooling off period" so she can get all her money back? i didnt think this was relevant in this context?

    she says that if she doesnt get a full refund she is going to come to the house and let herself in and "cause trouble" etc and not leave until she gets her full refund

    any views? thanks

    #2
    If the the start date of the tenancy has already passed I think she's on very dodgy ground, although if she hasn't actually taken possession I'm not sure.

    If she hadn't made the threat of criminal damage I'd have been inclined to consider giving her a refund, but that kind of thing makes me more likely to dig my heals in. But that's me, and possibly not the best way to deal with someone like this.

    Perhaps the most pragmatic thing to do is tell her that you will make every effort to re-let, but that until you find someone suitable you will hold her to her contract. Also, tell her that any criminal damage will lead to prosecution. I do hope you ran several reference checks and have enough details about her to be able to track her down if there's a problem ?
    IANAL (I am not a lawyer). Anything I say here is just an opinion, so should not be relied upon! Always check your facts with a professional who really knows their onions.

    Comment


      #3
      It depends where the tenant signed the AST as to any cooling off period but she must be given 7 days from when it was received without any financial penalty to change her mind if that is the case.

      This is an extract from the government website:

      A distance contract is defined by The Consumer Protection (Distance Selling) Regulations 2000 as 'any contract concerning goods or services concluded between a supplier and a consumer under an organised distance sales or services provision scheme run by the supplier who, for the purposes of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded'. The Regulations state that there should be a cooling off period of seven working days beginning with the day after the consumer agrees to go ahead with the project.

      I think her threat about making trouble is idle as it would probably constitute criminal damage
      The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

      Comment


        #4
        hi paul

        thank you for your reply - she viewed the property twice and then came again to sign in and complete the paperwork - all of this was at the property she was to live in

        her tenancy was dated the 3rd july (the day she got her keys) and she gave back word on 5th july asking for all her money back

        am not sure if the cooling off period applies in this circumstance?

        thanks again

        Comment


          #5
          hi grr

          the start date of the tenancy had passed - the tenancy date was 3rd july (she was given her keys on this date) and she gave backword on 5th

          i was only going to retain the money (3 weeks rent ) that she had already paid and not enforce the remainder of the 6months rent (which i believe that i could do as i have her address)

          any ideas

          thanks again

          Comment


            #6
            The following assumes the tenant has not moved in.

            If you agree to bring the contract to an end you will not be entitled to any rent. This is because until a tenant moves in there is no tenancy and if there is no tenancy there can be no rent. The money received equal to three weeks rent is money to be applied as rent when it becomes due. So, unless the agreement provides to the contrary, that money will have to be refunded if you release the tenant. You do not of course have to release the tenant, but from what you say it seems like the best move. Insist that the tenant signs to say the agreement is at an end. A deed would be best. If you need one just say and I'll post one if you promise to make a contribution to charity.

            If you wish to enforce the contract and the tenant does not move in you will not be entitled to sit back and keep demanding rent (or to be strict a sum of money equal to the rent). You will have to mitigate your losses and start looking for a new tenant. The rule that a landlord does not have to mitigate his losses only applies if you are a landlord; you are not a landlord if there is no tenancy.

            Comment


              #7
              Originally posted by Lawcruncher View Post
              If you agree to bring the contract to an end you will not be entitled to any rent. This is because until a tenant moves in there is no tenancy and if there is no tenancy there can be no rent.
              From what OP explained it seems that the tenant has got possession of the property (she got the keys). Based on that, does it really matter what she does with the property as far as rent is concerned? (I understand that it can influence whether the tenancy can be an AST or not, though)

              Comment


                #8
                Originally posted by jjlandlord View Post
                From what OP explained it seems that the tenant has got possession of the property (she got the keys). Based on that, does it really matter what she does with the property as far as rent is concerned? (I understand that it can influence whether the tenancy can be an AST or not, though)
                I may be mistaken but I do not think that being given the keys is the same thing as taking possession. If possession is not taken then as LC explains a tenancy is not created. What that leaves is a contract to create a tenancy and that is the contract which has been breached.
                '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


                  #9
                  Originally posted by jjlandlord View Post
                  From what OP explained it seems that the tenant has got possession of the property (she got the keys).
                  As I have said elsewhere, there is nothing magic about keys. The question is: Has the tenant gone into occupation?

                  Whatever the law, I think the real question for the OP here is: What is in my best interest? From what has been said, it seems the only sensible decision is to cut free and start again.

                  Comment


                    #10
                    Originally posted by Lawcruncher View Post
                    As I have said elsewhere, there is nothing magic about keys. The question is: Has the tenant gone into occupation?
                    Yes I do remember what you said about keys.
                    My question here is that whether occupation is that important: the tenancy was agreed and the starting data has passed, OP has given the keys to the tenant.
                    Why would occupation matter?

                    Let's say someone is looking to rent a place from date x. Landlord want tenancy to start at date y (earlier than x).
                    If occupation mattered, you could simply agree to the date the landlord requested but never moved in and occupy the property until date x anyway. Then you could tell the landlord "ah but I did not take occupation until date x, so all the period between y and x does not count".

                    My view is that if tenancy is agreed by both parties, with all the signs that possession has been given to tenant, then a tenancy is in place and rent is due. What the tenant does with the property should be irrelevant.

                    Originally posted by Lawcruncher View Post
                    I think the real question for the OP here is: What is in my best interest? From what has been said, it seems the only sensible decision is to cut free and start again.
                    I agree. But that does not mean that OP should let the tenant go for free, imo.


                    If possession is not taken then as LC explains a tenancy is not created
                    My understanding is that LC mentioned actual occupation, not possession.

                    Comment


                      #11
                      Originally posted by jjlandlord View Post
                      My understanding is that LC mentioned actual occupation, not possession.
                      My understanding is that 'taking possession' of the property (as a tenant) means moving in and living in the property, i.e. staying overnight in it.
                      '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
                        My understanding is that 'taking possession' of the property (as a tenant) means moving in and living in the property, i.e. staying overnight in it.
                        Ah, to be clarified, then.
                        My understanding of "(exclusive) possession" is that the tenant and only the tenant has the right to enjoy and freely use the property.
                        I've found that definition online:
                        Exclusive possession: The right of a tenant to exercise control over a premises
                        To me that does not require moving in.
                        And "occupation" means actually moving in there.

                        Comment


                          #13
                          Lawcruncher?!
                          '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
                            My "Smith & Kenans English Law" book states possession is: control with an intention to exclude others.

                            Although it does go on for about 20 pages thereafter about the subject to no real definitive conclusion!

                            a quote from it is: - "The handing over of a key may be sufficient by itself to pass the possession of the contents of a room or box if it provides the effective means of control over the goods" Not entirely sure of its relevance in real estate but still!
                            [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

                            Comment


                              #15
                              Originally posted by mind the gap View Post
                              Lawcruncher?!
                              Just going shopping. Back later.

                              Comment

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