Tenant rescinded their notice

[Tania2606]

My tenants gave notice to end a 12 month contract last month (at the 6 month break clause), but last week recinded that notice. My agent accepted on my behalf without consulting me. I've not been happy with my current agent and as they had not contacted me or shown any activity in remarketing my property for rent, I instructed a new agent to take over. They have been actively remarketing for the past week on the understanding that the property would be vacant after 10 October. Now as my agent has accepted the tenants request to recind their notice, I have been informed that the tenancy reverts back to the 12 month agreement as before.

My arguement with the agent is that they should have obtained my permission before recinding the notice, especially as I could have new tenants already lined up through my new agent. I wrote to them and complained, but their answer was "When either a tenant or landlord rescinds a notice, we are obliged to process this rescind notice. We do not require authorisation from either party to do this".

I don't agree. Are they right? I thought the tenants written notice to vacate was legally binding, therefore I am under no obligation to accept their rescind just because they changed their minds? This has left me in a very awkward situation - especially with my new agent.

So who is correct?

[westminster]

The tenant's notice under the break clause cannot be rescinded, even with the landlord's agreement. The notice ends the tenancy at notice expiry, and nothing can alter that.

If the T remains in occupation beyond notice expiry, then you are entitled to treat him as a trespasser and immediately apply for a possession order (you still need a possession order to evict).

Alternatively, you can grant him a new tenancy - if you demand/accept rent after the tenancy ends, this will have the effect of creating a new tenancy.

[jjlandlord]

The notice to activate the break clause might be binding but IMHO it doesnt oblige the tenants to vacate, only to terminate the fixed term. After which, if the tenants remained there, they would have a statutory periodic tenancy.

That's if notice is served by landlord.
However notice served by tenant not only ends fixed term tenancy, but also prevents SPT from arising.

[westminster]

The notice to activate the break clause might be binding but IMHO it doesnt oblige the tenants to vacate, only to terminate the fixed term. After which, if the tenants remained there, they would have a statutory periodic tenancy.

A T's notice under a break clause does oblige the T to vacate; a statutory periodic tenancy will not arise, due to s.5(2)(b) Housing Act 1988.

http://www.legislation.gov.uk/ukpga/1988/50/section/5

[MSaxp]

Ok, mea culpa. I deleted my post, not to confuse anyone

[Lawcruncher]

We do though need to bear in mind that the acceptance of a purported rescission may have the effect of starting a new tenancy.

[Tania2606]

Hi - the 10 October has now passed and I have already received the rent, so the tenancy agreement is continuing as before (which isn't a problem).

I'm just annoyed that the agent accepted the tenants request to recind the notice without first requesting my authorisation and when I complained said they didn't have to. Would it be because they are fully managing my property?? I would have thought my acceptance/permission would need to have been granted, as I have already accepted the tenants notice to vacate.

I just need to know where I stand with the facts when I make my 'official' complaint to their head office...

Cheers, Tania

[thesaint]

What does your contract state?
If you need to tailor your agency agreement, then that is for you and the agency to thrash out.

If you can't reach a satisfactory compromise, then either one of you can serve the appropriate notice.

[Lawcruncher]

It may come down to what is your agreement with the agent.

The agent said: "When either a tenant or landlord rescinds a notice, we are obliged to process this rescind notice." That is clearly nonsense.