Violation of contract, letting agent wants to charge rent until new tenant found.

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  • Violation of contract, letting agent wants to charge rent until new tenant found.

    Hi all,

    First post here, so hi!

    My partner and I are having a bit of an issue with our current letting agent. We have an assured shorthold tenancy, valid for another 6 months (12 months total) which we have violated. Our tenancy agreement specifies no pets without written consent from the landlord, specifically:
    Not to keep or allow to be kept on the Property or any part thereof any animal, bird, fish or reptile without the written permission of the Landlord or his Agent.
    We didn't notice, didn't ask, and proceeded to get a couple of kittens after we moved in. A couple of days ago, we received a notice to the effect of "We've noticed you have pets, get rid of them or else". We are, of course, not going to get rid of the kittens.

    We rang the letting agent, and asked if they would ask the landlord for permission to keep pets on the property, which the letting agent refused (rather rudely) to do. The letting agent then proceeded to tells us that we would have to get rid of them or leave the property.

    Now, we've looked for other places that are explicitly cat friendly, and have expressed interest in a couple of other places. We're quite happy to leave amicably (though of course, we'd rather not).

    The issue is a clause in our tenancy agreement which stipulates that should the tenant wish to end the agreement early, they are liable to pay the rent and upkeep of the property until such time as a new tenant is found:
    Should the Tenant wish to leave the property before the agreed termination date as set out in this agreement and the Landlord or his agent agree in writing to a voluntary surrender of the lease subject to the terms set out herein then the Tenant shall be responsible for the rent and all other obligations as set out in this agreement until such time as a new tenant shall be found, approved and a new lease commenced and in addition shall be responsible for the payment of the Landlord's agreed letting agent's fee the amount to be advised. The Tenant will be responsible for the rent due and all other obligations under the terms of this agreement if the termination date set out in this agreement has been reached before a new tenant has been found and approved and a new tenancy agreement has been entered into; in which case the agents fee will be refunded to the Tenant.
    My question is this:
    As we have violated the contract, presumably the letting agent will serve a Section 8 notice on ground 12 (breach of the agreement). Given that we are quite happy to comply with the section 8 notice and leave, will we still be liable for the rent until a new tenant is found, as if we had requested to end the tenancy voluntarily?

  • #2
    The starting point: the only way that the LL can unilaterally end the tenancy and evict you is by obtaining a court order for possession.

    The LL is extremely unlikely to obtain a possession order based on a minor breach (it's not a 'violation') of contract such as keeping a couple of kittens when there is a no-pets clause.

    Therefore, the letting agent is spouting a fair degree of hot air. The choice is not to get rid of the kittens or leave. It's get rid of the kittens or the LL will apply for a possession order and probably won't get one.

    None of the above has a bearing on your binding obligation to pay rent for the duration of the fixed term tenancy. The clause from the contract you quote is a completely separate issue, relating to when a T wishes to surrender a tenancy early. It basically sets out the common law position in the event that a T offers to surrender a tenancy early and the LL does not accept the offer to surrender - i.e. the T remains liable for rent until the LL accepts. It takes TWO to agree a surrender.

    If the LL serves you with a s.8 notice, it is not an 'offer' on the LL's part to end the tenancy (the LL cannot offer to surrender). You can't 'comply' with the notice; because it merely advises you that the LL might (or might not) apply to the court for a possession order after the notice expires. If you were to move out at expiry of the notice, this would not end the tenancy nor your liability for rent, and it is possible that the LL could pursue you for rent up to fixed term expiry.

    Assuming you intend to keep the kittens, then your choices are:

    1) Await a s.8 notice and be fairly confident the LL won't get a possession order.

    2) Offer to surrender the tenancy early to the LL. The contract only sets out a common law position, and it's quite possible to negotiate something else with the LL if he's willing. For example, you could offer to pay the LL the equivalent of, say, two months' rent, if he will agree to accept a surrender on a mutually acceptable date - as opposed to the scenario where you remain liable until when/if the LL finds a replacement T (which could be longer than two months...)

    If you might need a good reference from this LL, do bear this in mind, whatever you do.

    Comment


    • #3
      If you do not leave voluntarily you have not breached your contract. So don't leave.

      The agent will be put in a position where he either applies for a possession order on behalf of the landlord, (but tbh I doubt very much whether he would be granted one simply on the grounds that you have got two cats), or he throws himself about and complains, but in practice there is nothing he can do. (And he should not be making any decisions about evicting you without consulting the LL!)

      If you upped and left of your own accord, then yes, you would be liable for the rent for the remainder of the fixed term, but that is different from being told to go by the agent.
      '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

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      • #4
        Originally posted by mind the gap View Post
        The agent will be put in a position where he either applies for a possession order on behalf of the landlord
        He can't apply on behalf of the LL unless he's legally qualified to conduct litigation.

        Comment


        • #5
          Is this in England and Wales?
          Is it a flat or a house?
          Has the tenancy agreement been breached in any other way?

          Comment


          • #6
            Thanks so much for the responses so far, feeling an awful lot better about this whole situation now.

            Yes, we're in England. The property is a flat. There have been no other breaches of the agreement, bar paying the rent a day late once due to a bank error.

            So if eviction is not a problem, are there any other possible consequences? I guess my biggest worry now is that the letting agent trumps up a ridiculous amount of fees or tries to make life hard for us somehow.

            Comment


            • #7
              the only issue will be at the end of the tenancy when the agent may choose to try to claim an enormous amount from your deposit due to "kitten damage". Was there a full inventory when you moved in?
              Unshackled by the chains of idle vanity, A modest manatee, that's me

              Comment


              • #8
                Originally posted by amylizzle View Post

                So if eviction is not a problem, are there any other possible consequences? I guess my biggest worry now is that the letting agent trumps up a ridiculous amount of fees or tries to make life hard for us somehow.
                Do you live in a "block" of flats?

                I would definitely start looking for alternative places to live for when your fixed term ends whatever the outcome.
                You have more than likely scuppered any chance of getting a decent reference.
                Allow tenants to protect their own deposits. I want free money when they do it wrong

                Comment


                • #9
                  There was a full and thorough inventory filed, as I have been stung with that particular barb before. I'm quite sure we also took pictures of the damage, though they weren't submitted with the inventory. We've also taken steps to prevent any damage occurring, and intended to hire a carpet cleaner at the end of the tenancy just to be extra sure.

                  We live in the ground floor flat of a 3 story converted detached house. I thought that would likely be the case, I guess we'll cross that bridge when we come to it.

                  EDIT: just as an aside, if they do serve an s8 and get a possession order from the court, are we then liable for any court fees?
                  Last edited by amylizzle; 27-02-2013, 10:07 AM. Reason: Additional questions

                  Comment


                  • #10
                    As previous posters have intimated, you will note be evicted just because you own a cat, or even two. The courts must always use proportionality when granting an order and the draconian option of someone becoming homeless against a possible risk of a cat peeing on a carpet is a non starter.
                    It is likely the LL will issue a section 21 notice for the end of your fixed term and it is likely that the LL would initiate proceedings if you chose not to leave at that time. It is also likely the LL will sting you for your deposit. However, I suspect this stupid action is more down to the agent and I’d put money on the LL knowing nothing about it.
                    In the infinitesimally small chance of a court case being brought because of the kitten, only the judge will have the power to order costs. Unless the LL can evidence serious reasons for the case being brought, any decent judge would throw it out.
                    I can’t always be positive though, next time read the small print regarding pets. LL's generally exclude pets, yet allow children. Never understood the reasoning for that!
                    I may be a housing professional but my views, thoughts, opinions, advice, criticisms or otherwise on this board are mine and are not representative of my company, colleagues, managers. I am here as an independent human being who simply wants to learn new stuff, share ideas and interact with like minded people.

                    Comment


                    • #11
                      Originally posted by amylizzle View Post

                      EDIT: just as an aside, if they do serve an s8 and get a possession order from the court, are we then liable for any court fees?
                      It is possible that the judge may award court costs against you, as you have broken a clear term of the tenancy agreement, and the landlord is entitled to challenge you on that.

                      To lower the chance of this happening, I would write to the landlord at the address given for him/her on your tenancy agreement, stating that you will be leaving at the end of your fixed term, and you will make sure that if any damage was to occur, you will put it right before you leave.

                      Make it clear that this will be your defence to any action, and will use this letter as evidence why you will dispute any costs that he may try and ask the court for.
                      Allow tenants to protect their own deposits. I want free money when they do it wrong

                      Comment


                      • #12
                        Originally posted by thesaint View Post
                        To lower the chance of this happening, I would write to the landlord at the address given for him/her on your tenancy agreement, stating that you will be leaving at the end of your fixed term, and you will make sure that if any damage was to occur, you will put it right before you leave.

                        Make it clear that this will be your defence to any action, and will use this letter as evidence why you will dispute any costs that he may try and ask the court for.
                        Yes, and OP could also offer to surrender the tenancy early.

                        [EDIT: I'd also mention that the agent refused to pass on the request for permission to keep pets to the LL]

                        Comment


                        • #13
                          So we just went to the office of the estate agents, more or less forced them to contact the LL (they refused to do so about 5 times before caving). LL refused permission, so we were once again told "Get rid of the cats or get out" (we have requested the refusal in writing).

                          Doesn't really change anything, though they did explicitly mention the possibility of serving notice this time. I did bring up the possibility of leaving amicably if they were to waive the requirement to pay the rent until a new tenant is found, though this was point blank refused.

                          Frankly at this point, even if there are court fees charged with the possession order somehow, provided they are less than £500, we come out financially better by sitting and waiting for the possession order to come. The only caveat to that is that ending the tenancy via a possession order definitely invalidates the requirement of paying rent until a new tenant is found.

                          Comment


                          • #14
                            If the LL obtains a possession order and a bailiff enforces it, the tenancy ends when the bailiff enforces the order. No tenancy, no liability for rent.

                            I would still advise writing to the LL as suggested above. Keep copy letter. It seems rather pointless to apply for a possession order when he has the option of agreeing a surrender instead, so it might well help to persuade the court not to order you to pay costs.

                            But it's unlikely he'd get a possession order under s.8 anyway.

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