We have all known it happen.
A tenant says that he is going, and then at the last moment changes his mind and decides that he would like to stay on after all, actually.
Thereby causing the landlord (and any tenants who he had lined up to move in) huge inconvenience.
Although the landlord will have the legal right to possession, he will have to get a court order first which could take months (by which time the tenant will probably be long gone).
Well according to an interesting post on the PainSmith blog, an answer to the problem may lie in section 18 of the Distress for Rent Act 1737.
Eighteenth century landlords obviously experienced similar problems. To quote the act:
“whereas great inconveniences have happened and may happen to landlords whose tenants have power to determine their leases, by giving notice to quit the premisses by them holden, and yet refusing to deliver up the possession when the landlord hath agreed with another tenant for the same”
The act goes on to provide that if a tenant gives notice and then fails to leave, a landlord can charge double rent “and such double rent or sum shall continue to be paid during all the time such tenant or tenants shall continue in possession as aforesaid“. However note the following:
- The tenant must have served a proper valid notice to quit, which has been accepted by the landlord
- The double rent can only be charged on a daily basis for the period of time the tenant overstays
- It cannot be used if the tenant just fails to return the keys
- It cannot be used if the tenant just stays on after the end of the fixed term (in which case in most cases a new periodic tenancy will arise)
Arguably the money can be deducted from the tenants deposit in the normal way, but the PainSmith blog warns that few judges or adjudicators are aware of this law, so it may be hard to enforce (although landlords could just print out the extract from the online statute linked above).
I would be very interested to know if any landlords have actually used this rule, and if so, whether (if it was challenged) they were able to uphold the claim at court or arbitration.
Save that no distress for rent can be levied at all where the tenancy is a Rent Act tenancy (Rent Act 1977, s.147) and, in the case of an assured tenancy, the permission of the court is required (Housing Act 1988, s.19(1)). Given the criticism of the remedy in Abingdon RDC v O’Gorman [1968] 3 All ER 69, it’d be a brave DJ that allowed the use of such a remedy!
I have kindly been given access to an article provided on the Guild of Residential Landlords web-site http://www.all4landlords.com, part of which cites Oliver Ashworth (Holdings) Ltd. v. Ballard (Kent) Ltd. [1999] 3 W.L.R. 57. I quote from the article:
Laws L.J. states: ”…the right to double rent conferred by section 18 of the Act of 1737 only arises where (a) the tenant holding over after his own notice to quit is in fact a trespasser (thus, the notice must be valid), and (b) the landlord treats him as such. Any other case departs from what I regard as the plain purpose of the section…”
Though s.18 and Laws L.J. both specifically state that the notice must be “valid” a landlord is entitled to accept an invalid notice to quit. It is suggested by the Guild that acceptance of an invalid notice may provide an argument that the notice was “valid”).
One of the intentions of s.18 was to compensate the landlord should he have contracted a new tenant to take the property after the date specified in the notice, however there is no requirement to have a tenant in waiting to charge double rent.
Laws L.J. states ”…it is to my mind entirely clear that the legislature was concerned only to compensate landlords for the potential loss of rent arising where a tenant holds over against the landlord’s insistence that he should comply with his own notice to quit. I do not say that the section applies only where the landlord has a new tenant ready and waiting; the recital gives the thrust, but not necessarily the focus, of the section’s reach.”
Presumably, as the requirement is that the landlord treats the tenant as a trespasser, any request for double rent should be made using the words “mesne profits” so as to ensure the landlords intention is that the occupier is a trespasser. In addition, a landlord would be well advised to immediately commence possession.
I am a former tenant at a property which I occupied for 7.5 years with my family, paying rent on time for the entire period. We held over for 2 weeks, as landlord was changing renewal terms up to 5 days before lease expiry. I have paid rent for period i held over, but landlord is still claiming double rent for period held over, under section 1 of Landlord and Tenant Act of 1730. Is there any basis in that? and where does one find a solicitor to defend against such claims ?
As discussed above, the landlords right to double rent appears to arise only when the tenant has served a valid notice. So if you did not serve any notice to quit, then it is arguable that you are not liable for the double rent.
If the landlord has not issued proceedings, you could just refuse to pay. However if a county court claim is made, a good firm to consult would be PainSmith, the firm mentioned in the blog post, who originally wrote about this. They have a web-site at http://www.painsmith.co.uk.
Otherwise you may be able to find a suitable firm via our referral service.