UK Landlord Forum / Life

....

There are a number of issues here, and the agent isn't really helping themselves.

First of all, the bad news. If the students have entered into a fixed term AST ending in October, there's almost certainly no way to end it early. If there is, there'll be a mechanism in the tenancy agreement (but student agreements normally don't have such clauses). It's a fixed term agreement and the tenants have committed to it. There's no obligation for the agent (and please read "or landlord" when I say agent) to agree to terminate the agreement early.

More bad news, because the tenancy is ongoing, the tenants owe the rent for August (and for the rest of the term). If the agent takes them to court, the agent will win - hence the ccj threat.

The slight bit of good news is that the agent is also not allowed to charge a fee of £550 to "remarket" the property. That's not a permitted fee. They are allowed to charge to early terminate the agreement, but that charge is limited to their actual costs. They can's charge anything for trying to end the tenancy early - which this fee is.

Also, there's an argument that if the agency is marketing the property as being available from 16th August, that they must believe that they are able to let the property from that date, which means that they must have possession of the property, so have accepted the tenant's offer to surrender the tenancy and that the tenancy has now ended. That does mean that some rent will be due - to whenever the tenancy ended, but not any more. The problem with this is that it's also possible to argue that this is not the case - no one knows when the tenancy actually ended, so that's a problem.

And there's obviously another issue, which is that the students are the tenant and would have to act collectively. They've agreed something that they probably shouldn't, but they did. And getting a group of students (and usually parent guarantors) to act collectively and in unanimity is usually impossible.

Th students must have known what they were agreeing to. Even if the reletting fee is not permitted, they do owe the rent until the contract expires. You say that the agents are failing to do their job, but they are advertising the place. This is not a good time of year for letting, especially to students who have presumably already made their arrangements for the new term.

I would not agree that the contract has been surrendered. They can' t  automatically expect to be granted favours, this is someone' s business. Would you think it acceptable if the landlord had decided he wanted them all to leave months earlier than agreed?     

....

...

Quote from: Rental_issue_2024 on August 08, 2024, 02:00:20 PMThere specifically is a term in the contract saying that early release is possible if 550 remarketing fees are paid and the landlord agrees and another tenant is found.

Could you try to quote the complete term? On the face of it, that's both useless to the tenant and not legal.

The agent can't charge that fee because it's not legal (it might be legal if the early termination happens, but up until then, it isn't).

QuoteThe tenants have given the keys back and no longer have access to the property so how can they still have possession

Because they have a tenancy and the agent would have to give them access if they asked for the keys back.

The tenancy remains in force until the tenants offer to surrender it to end it and the agent accepts that offer. They obviously are claiming not to have accepted the offer at the moment (otherwise, no rent would be due).

Given the conditional nature of that clause, I'm not sure that the tenants could have offered a surrender—it's very difficult for a group of joint tenants to do in practice unless it's in writing.

This happens a lot. It perfectly combines naïve students, greedy agents and parental guarantors.
Usually, the guarantors pay up to make the problem disappear after a while (one cracks first, and then it's all over).

...

Thank you.

It depends where you want to go with this.
You can argue that paying the agent the fee is unlawful because it exceeds their actual costs. However, paying the landlord the fee so that they can pay the agent's fees may be fine.

Secondly, the lease has either ended or hasn't. If it hasn't, the rent is due (but that fee isn't due). If that fee's been paid, it can only be that " the Tenant [has broken] the lease" and "the landlord [has agreed] to the early release and break of contract". If both those things haven't happened, that fee isn't due.

The property is clearly in the agent's control because they're advertising it as available next week, and you can bet that they've been in without the tenant's permission to clean and photograph it.

But, if I were the agent, I'd simply return the £550 (if push came to shove) and demand the rent until the end of October, saying that they tried to do the tenants a favour as per the contract, but the tenants weren't interested in keeping up their part of the deal.

If you were the tenant, I'd be tempted to make these arguments and call the agent's bluff that they won't sue you. As you're not the tenant, and it's a group of young people (with parents as guarantors), I don't know what you can really do. Or even should do.

Leave the tenants to try and sort out their own mess as a learning experience? This is what University is really useful for, rather than applied physics or whatever people are meant to be studying. You can always do the parental thing when they've suffered enough and pay the debt.

It's only very rarely that students raise this kind of issue on forums, it's usually the guarantor/parent trying to sort out someone else's mess!

There are two ways to handle this, fight them all the way or cave in.

Caving in would teach your child an important lesson, so obviously worth making them think they will have to pay, but in days that follow explain that you can fight.

Sadly you said the unfortunate G word, no no no, not that part of the female anatomy that eludes so many men, I mean Guarantors.

The second problem is that your child has surrendered the property, but this can help you as it sets a date from which they could and should have let the property.

If you had not surrendered the property I might have suggested an option that is very clearly in place in some ads on SpareRoom dot com.  That is that people let a room on a lodger basis with one of the co-tenants still resident as the live in Landlord.  Of course this may breach the terms but very hard for LL to enforce such a breach. A deposit may be taken from the lodger as well as whatever rent the market can stomach.

The lodger can be told that they will have an opportunity to become a tenant in September but two weeks notice will be given mid August just in case. Your child does not have this option because they surrendered the property.

There is no doubt that the asking your child to pay the Landlords new tenant find and setup fees at £550 + VAT is a prohibited payment under the Tenant Fees Act 2019 because it is not reasonable or proportionate.  So reporting the Landlord for this is a threat that can see them fined between £5000 (for first offense) to £30,000 for each subsequent offense.

The idea this prohibited fee is payable if the Tenant breaks the lease for any reason is absurd any charge can only be on the exact loss and the Claimant has a duty to mitigate such losses.

As for the "full rent for the remaining term shall be due, again absurd, the Landlord and/or their agent must mitigate their loss, that means they must take all reasonable steps and promptly attempt to replace the tenant. 

In these days where an a FREE Ad on OpenRent can produce 30 prospective tenants (who will even overbid the advertised rent to secure a property) in half a day it is again absurd to suggest that it has taken all this time to find new tenant.  It is clear that they are stalling and not even providing the service before they would have had to do so anyway when the Tenancy expired.

BTW you can tell that the term you quoted was not written by any Solicitor but probably the Agent, this risks biting the Landlord hard.

You make a very good point about the property is in a major city with a housing shortage.

As for August Rent DO NOT PAY IT, simply reply with a "without prejudice save as to costs" letter or email saying that the Rent for August is under dispute.  For now do not say more.

To be clear, agents can't issue CCJ's no more than a High Court Enforcement Officer enforce a debt that has not been subject to a hearing in Court which takes many months. 

I suggest that the persons receiving the emails reply back to ask the agent to cease harassing them as the debt is disputed and they will seek a settlement to resolve matters amicably in due course.

Just as your child needs a lesson to not sign any old tenancy without reading and fully understanding the terms, you too should not be a guarantor as you risk being culpable for the performance of the contract.  That being said you make some important points.

Here are a few actions you can take if you want to fight this.

1. Check the tenancy agreement has the residential address of the Landlord (not a care of address of the agent), this allows one to legitimately delay paying rent until it has been provided.

2. Spend £3 on a Land Registry Title Deed for the rented property, if the address is different to the property then make a note of the address and compare it to what is provided by the Agent as the residential address, if they are the same then ask again and tell them you are withholding any alleged rent until they comply with legislation.

3. Once the residential address of the Landlord has been provided, look it up on Google Streetview and confirm it is a residential address, not an address of an accountant or other professional.

4. Search Google for the address provided, it will provide useful information that may prove it is not the Landlord's address.

5. Check the three deposit protection schemes to see if your child's deposit was protected properly within 30 days and that accurate prescribed information was also serve within 30 days. The articles from The Landlord's main site will help.

6. They can ASK for a deduction on cleaning but I am sure that your child took copious photos, also they should have been asked to present at any inspection before and after the tenancy, they also should have given your child the opportunity to make good any alleged damages, again this is to mitigate the loss suffered for which they wish to make a claim.  If they don't do these things then it can affect their ability to make a claim.

7. Check to make sure that there is a current Gas Safety inspection and one was carried out if such a document expired during the tenancy.

8. Check that the property was licensed as an HMO, the local Council website will have a page where you can look it up or email the Council to ask if the property is licensed as an HMO.  It can depend on the area, the size of the property or having more than 2 unrelated tenants.

9. In the event of the Deposit being protected, notwithstanding any defect, review the terms of the scheme online to determine if their ADR process is binding on the Tenant.  If it IS binding then seriously consider declining the ADR and taking the matter to the County Court, especially if there has been a defect.

10. Construct a letter to the Landlord sent to their home address explaining your grievances where you seek a settlement which will include:

Return of the prohibited payment.
Return of FULL deposit with no deductions.
Release of Guarantors of all liabilities in relation to the contract.
Return of all rent from the period of 7 days after property surrendered to the end of the Tenancy.
Return of monies for loss of amenity if there were any issues with the property not being provided.
Return of monies for Breach of Contract if there was any failure in Landlord responsibilities, damp, mould, disrepair etc. that were not corrected.
Provision of a positive reference and continued support of the positive reference if the LL or Agent is contacted.

Make it clear that settlement seeks to be an amicable resolution to all matters between the parties in accordance with practice direction for pre-action conduct and the overriding objective. However failure to reach an agreement will result in involving the authorities and Court in breach of legislation and regulations including the Homes Fitness for Habitation Act and the Tenant Fees Act which may result in fines up to £30,000 per breach.  Also mention HMO if it needs a license but does not have one.

Line your ducks up first, check and double check what they have and have not complied with, then draft the settlement letter.


You may find the follow pages on Landlord Main site useful

https://www.propertyinvestmentproject.co.uk/blog/i-havent-protected-my-tenants-deposit/

https://www.propertyinvestmentproject.co.uk/blog/tenant-threatening-legal-action-tenancy-deposit/

https://www.propertyinvestmentproject.co.uk/blog/your-tenant-wants-leave-early/

and this one on the GLA on Tenant Fees Act and other related legislation.

https://www.london.gov.uk/programmes-strategies/housing-and-land/improving-private-rented-sector/tenant-fees-ban

Quote from: Rental_issue_2024 on August 08, 2024, 10:12:43 AMHi I'm looking for advice.
My child and their friend were students renting a flat together and University ended mid July.  They realised that their AST did not end until mid October but needed to leave for jobs etc and so contacted the agency in mid June asking to end the tenancy early, giving a month's notice.
The agency pointed to a clause in the contract saying that this was possible upon payment of remarketing fees of £550, but rent would still be charged until the property was rented.  There were many discussions between the students/agency and they were lead to believe that the agency could / would be abe to rent out the property soon.  Also the property is in a major city with a housing shortage. So they paid the 550.
Unsurprisingly the agency have done the bare minimum to attempt to rent out the property.  The keys were surrendered mid July, but the flat is on Rightmove today at a higher rent with a move in date of 16th August, so a month after it became empty. I saw the property before they left and it was clean and immediately rentable.
The agency keeps sending increasingly threatening emails to the students and the guarantors for payment of the rent for August, threatening to "issue CCJs".  The students do not have jobs yet, and frankly I do not see why I should pay for the inability of the letting agency to do their job remarketing the property - which my child is paying them to do!
There is a deposit but the agency are disputing return on grounds of cleanliness - which is untrue.
Does anyone have any advice on what we should do?

Quote from: Marie on August 09, 2024, 11:06:30 AMThe second problem is that your child has surrendered the property, but this can help you as it sets a date from which they could and should have let the property.

Quote from: Marie on August 09, 2024, 11:06:30 AMAs for the "full rent for the remaining term shall be due, again absurd, the Landlord and/or their agent must mitigate their loss, that means they must take all reasonable steps and promptly attempt to replace the tenant.

The nub of the issue is it's not at all clear that the tenancy has been surrendered. The tenants have offered to surrender the tenancy, but the landlord hasn't accepted it as yet - unless their actions are deemed to constitute acceptance. If the tenancy is still in place then there is no duty to mitigate loss.

Quote from: Marie on August 09, 2024, 11:06:30 AM8. Check that the property was licensed as an HMO, the local Council website will have a page where you can look it up or email the Council to ask if the property is licensed as an HMO.  It can depend on the area, the size of the property or having more than 2 unrelated tenants.

From the original post, it sounds like there were only two tenants, the poster's child and a friend, so HMO rules are unlikely to apply.

Reading between the lines, it sounds like the initial tenancy was taken in some haste, a couple of weeks into the new term, as dedicated student accommodation was unavailable.

Quote from: Marie on August 09, 2024, 11:06:30 AMAs for the "full rent for the remaining term shall be due, again absurd, the Landlord and/or their agent must mitigate their loss, that means they must take all reasonable steps and promptly attempt to replace the tenant.

This is not a contractual loss, it's a lease, so there's no obligation on the landlord or agent to mitigate their loss. You're applying the wrong law to the issue (contract not land/property law)

QuoteThe idea this prohibited fee is payable if the Tenant breaks the lease for any reason is absurd any charge can only be on the exact loss and the Claimant has a duty to mitigate such losses.

Again, there's no requirement for mitigation, this is not a compensation claim. If the claimant is the landlord, it's limited to their actual costs, regardless of mitigation; if the claimant is an agent, the costs must be "reasonable", not kept to a minimum.

In my view "caving-in" is not that at all, but living up to the agreement you signed in good faith.

Why is it seemingly so hard for people to do this these days? It seems everyone just signs their name to stuff, willy-nilly, and then concludes that never even mattered - they'll do whatever they want anyway, and the 'consequences' would be immaterial. It wasn't the Agent in question who instigated this.

It is stated - almost as fact - that the Agent has done the bare minimum in effort to re-let the property. That is simply an unknown. The fact is, currently, it appears un-let. Assumptions as to the effort put into re-letting are simply that.

"They realised that their AST did not end until mid October..." is all we need to know. Hopefully they realised this at the time of signing the contract... but, still, if they only realised much later, who cares? That just means they're stupid students.

   ....

Normally the owner isn't named on a tenancy agreement, the Landord is. The landlord doesn't have to be the owner.

Even if the owner is wrongly identified on the agreement, I'm not sure how that helps your child.

The mother (assumption) - in this case - reminds me of a trumpeting elephant, desperately trying anything, looking for any technicality, as to why "frankly I do not see why I should pay" can be justified... totally failing to grasp, or accept, that there was a contract in place and, really, the only thing that seems to matter is if the property has been re-let. As stated. It hasn't.

Because, well, reasons that we don't know, but are free to make assumptions about and even cite them as factual.

But it doesn't change the fact. And if the liability is escaped through wriggling then a useful lesson will not have been learned.

Don't sign your name to things you're not willing to stand by. Don't always just roll over, sure, and if someone takes the mickey - absolutely fight, and fight all the way, but this genuinely doesn't seem to be the case here. I would like to hold Tenants to agreements too. Isn't that quite normal? It's my income. Here, it seems as if they (the students) just signed-up, kicked the can down the road, and thought it wouldn't matter. How were they ever taken by surprise by the dates in question - the truth is: they weren't taken by surprise, they thought it wouldn't apply to them, probably 'cos they're special.

I'm from a different generation it seems.

The Agent in question (and I'm no fan of Agents) hasn't created the problem at-hand, the Tenant has. There's so much subjective stuff in here about how easy it should be to re-let, how much demand there is, how the Agent isn't doing their job, how the property met cleanliness standards, that it's patently obvious butter wouldn't ever melt... yet, with the other side of the story, who knows? I value facts and data points - there's a dearth of that here, it's just coming across as victim mentality all over... yet it feels to me like the victim is the poor Landlord. They've been left in the lurch.

I don't know. The agent hasn't helped the situation by holding out the hope that things can be fixed with an additional payment of more than five hundred quid. If they'd just said no (or not had the term in the agreement in the first place - because it's not legal), I'd have a lot more sympathy with the "old school" tough view.

Taking an extra £550 off kids for nothing switches my sympathies slightly. If this is accommodation with students in it, it's not going to be attractive to non-students. And students aren't going to want to sign up for accommodation from August to October.

When I read the original question my first thought was that the students sounded like a right pair of drips, bleating to Mummy or Daddy to make it all go away when they screwed up. Now I am reminded of the saying " The apple does not fall far from the tree" .

You are running round trying to prove that the landlord is dodgy, the agents are cheating.  You are the one who is trying to wriggle out of you legal obligation to pay,  acting as if the document you willingly  signed meant nothing. What a great example you are setting the young adult.
"  Never own up to your mistakes, use other people, blame them when you screw up"  Pay what you morally and legally owe, it is not a huge amount,  and hey, it' s never too late to grow up.   

...

...

Quote from: Rental_issue_2024 on August 10, 2024, 10:17:39 AMTo the helpful guys, I have followed the advice and posted the landlord info not to avoid responsibility but to get suggestions on how to contact the landlord when the info is not readily available.

The company on the AST has a UK address but it's just a holding address.

If your child (it has to be a tenant) writes (snail mail in an envelope an attachment to an email) to the agent asking for the landlord's address, they have three weeks to provide the information. There's a template on the Shelter website, with the right reference to the agent's legal requirement to supply it.

If the tenant(s) haven't been given an address in England or Wales where legal notices can be served, in theory, rent doesn't need to be paid until one has been given. It does have to be paid backdated though when that's happened, and the address could be the agent's. Although try and serve a summons there!

As noted, the landlord and the property owner don't have to be the same people.

Quote from: Rental_issue_2024 on August 10, 2024, 10:17:39 AMI'm guessing you are all landlords here I'll go look for another forum.

That would be the only wise decision I think you're capable of making in relation to this. I hope you get them off-the-hook and teach them a valuable life lesson.

That the OP just edited her original replies and then departed also says a lot about them as a person... no dissent allowed, no reality-check, no responsibility, no ability to see the other side - just convinced anyone who might disagree, and offers advice, is "trolling". No... not "trolling", actually reading what was written and concluding you're on the wrong side (even though the other side is an Agent - and I do detest Agents).

The usual expression is "I'm going to take my ball (not "the" ball) and go home." It means to be so immature and petulant in dealing with adversity, loss or rejection that one quits or leaves abruptly, often disrupting other participants in the process.

"Frankly, I don't see why I should pay." is the motto of the day, I'm going to try it out at Screwfix.

Very rude.
Not even leaving the content to help others in similar situations.

Good luck finding somewhere that can offer better advice.