Letting Agent Negligence?

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  • #46
    The letting agent are continuing to deny that they have released us from the rental agreement even though we have emails from both the letting agency and the landlord agreeing to this and even wishing us luck etc! The letting agent has yet to let the flat out (no offers have been made since we moved out with the flat empty of furniture, yet there were many offers when we were living there fully furnished).

    The LL seems to be taking a back seat thinking that we will be paying the rent until a new tenant is found which is obvioulsy not the case. The letting agent continues to ask for the rent from us. They owe us the remainder of the deposit so we are seeking a claim via the escrow service and then small claims court if that fails.

    Does the LL have any justification to seek compensation from the letting agent over their negligence to not cover themselves against the cancelation of new tenants moving in or was this the risk assumed to be taken by the landlord?

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    • #47
      Letting Agent Negligence?

      We were released from our two year rental contract early by the landlord and all was agreed and approved by the letting agent. However, new tenants due to move in cancelled after we had moved out and completed the checking out process. The letting agent and landlord are now denying they they did release us from the contract and are pursuing the rent until new tenants are found. We, on the other hand, are pursuing our deposit that they agreed to release after checkout.

      Who is at fault here, the letting agent (fully managed), or the landlord? Or was it an accepted risk by the landlord to release us before a full contract for the new tenancy had been signed by the prospective new tenants? Does the landlord have recourse for compensation against the letting agent due to their possible negligence for not fully explaining this to the landlord or covering their backs with our termination of the contract?

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      • #48
        I guess it depends on what basis you were released and what any paperwork relating to the release states. Remember the landlord didnt have to release you and was only done on the condition a new tenant is found.

        We get asked sometimes for a tenant to be released early but request a good size reservation fee from the new tenant to help stop this type of situation arrising.

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        • #49
          Unless early surrender was agreed in writing (pref as a Deed of Surrender and signed by LL & T) then T is negligent by accepting other party's word. What evidence do you have of acceptance of offer to surrender?

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          • #50
            I would certainly ask what evidence you have of the landlords surrender and the terms of it? Do you have anything, even circumstantial?

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            • #51
              This seems to happen a lot. The question you pose is: If I was not released what were you doing offering a tenancy to someone else?

              What do we have here?

              ·The release was agreed.

              ·You moved out.

              ·The check out was completed.

              ·It was agreed your deposit would be returned.

              ·A new tenant was set up.

              Reads like a surrender by operation of law to me.

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              • #52
                Originally posted by Lawcruncher View Post
                This seems to happen a lot. The question you pose is: If I was not released what were you doing offering a tenancy to someone else?
                I offered it to someone else because you had offered your surrender. I was allowed to take actions in an attempt to save you money. A new tenant was not found, so your tenancy continues until we find a new tenant or your fixed term ends.

                Of course, if OP has something that indicates the LL accepted his offer of surrender irrespective of the new tenant moving in, that's a different matter.

                Originally posted by Artworld Financial Corp v Safaryan (2009) EWCA Civ 303
                Any further act of the landlord referable to the landlord’s seeking to re-let the premises will not necessarily give rise to a surrender by operation of law, as it is no more than what the landlord might reasonably be expected to do in the circumstance for the potential benefit of all parties: Oastler v Henderson (above). The landlord must be entitled to seek to mitigate the damage caused in reality (even if not yet technically in law so long as the lease remains extant) by the tenant’s abandoning the lease, by seeking to obtain another tenant, without thereby losing his rights against the original tenant if he is unable to do so.

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                • #53
                  Originally posted by Bungleboy View Post
                  Does the LL have any justification to seek compensation from the letting agent over their negligence to not cover themselves against the cancelation of new tenants moving in or was this the risk assumed to be taken by the landlord?
                  It is irrelevant in terms of your liability to the LL whether the LL has a claim against the agent or not.

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                  • #54
                    But the tenant here has not abandoned the property. The landlord said he would release him. Relying on that assurance, the tenant moved out. A check out was done which is consistent with the tenancy having come to an end as is agreeing to release the deposit.

                    All these cases are tricky. The question which needs to be asked is whether in all the circumstances it is reasonable for one party to insist there has been no surrender.

                    Confusion arises because the terms are not set out clearly.

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                    • #55
                      Originally posted by westminster View Post
                      It is irrelevant in terms of your liability to the LL whether the LL has a claim against the agent or not.
                      Our liability to the LL is what is bothering me as I am now in doubt of where we stand. I have started a new thread and your contribution to the discussion would be very much appreciated: here Thanks

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                      • #56
                        Thanks for your responses.

                        The evidence we have for the LL releasing us from our contract is a telephone call from the letting agent (recoreded by the letting agent) saying that the LL agrees to release us. A seperate email from the LL confirming our departure and wishing us well and thanking us for being good tenants. We also have emails from the letting agent stipulating how much we need to pay them and to the landlord i.e paying rent up until the 19th April when the new tenants were to move in. There was also a phone call from the estate agent(recorded by the estate agent - and we have this in writing that all pone calls are recorded by them), confirming when the checkout company would come to do the checkout.

                        There were no terms and conditions set out based upon this early release and certainly no mention of what are liability would be if the new tenants would cancel.

                        Also, the letting agent has kept the holding deposit from the new tenants that have cancelled - Does this not imply that they have taken a sum of rent from these tenants and therefore, is further evidence of our release from the contract as the LL cannot accept rent from two parties for the same property? Surely the LL or letting Agent is not entitled to keep this money if it is we who are still liable to be paying rent - the fact that they have kept it is an admittance that we are no longer liable to the LL?

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                        • #57
                          Originally posted by Bungleboy View Post
                          The evidence we have etc
                          What you have added confirms my opinion that there has been a surrender by operation of law.

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                          • #58
                            Originally posted by Lawcruncher View Post
                            What you have added confirms my opinion that there has been a surrender by operation of law.
                            Despite my initial concerns, I agree.

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                            • #59
                              LA holding dep from prospective Ts does not mean rent for Tenancy. If prospects withdrew, it is their penalty for doing so and may yet have to be returned. Now proof of an AST, signed by prospects, would def indicate LLs acceptance of OPs surrender IMO

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                              • #60
                                Originally posted by mariner View Post
                                LA holding dep from prospective Ts does not mean rent for Tenancy. If prospects withdrew, it is their penalty for doing so and may yet have to be returned. Now proof of an AST, signed by prospects, would def indicate LLs acceptance of OPs surrender IMO
                                But not before they would have signed an AST? Surely, accepting a deposit from the prospective tenants is further evidence that they accept our surrender of the lease?

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