Here is a question to the blog clinic from Neil who is a landlord
I had a tenant who gave me one month’s notice to quit, 9 months after signing an assured shorthold tenancy agreement.
At the end of the month notice, the tenant notified me that he wished to stay a few weeks longer – he did not specify an exact date of vacancy – and paid a full month’s rent.
The tenant left the property two weeks after this. He now has written to me requesting the balance of two weeks’ rent be returned to him. Am I within my rights to refuse this request, as I did not know when he would be leaving?
Answer:
There is an argument both ways. You have been inconvenienced by the tenant’s failure to move out a the proper time. The tenant feels that you are getting something for nothing.
However happily for you, there is a very old law on your side. Under section 18 of the Distress for Rent Act 1737 you are entitled to claim double rent if your tenant served a notice to quit and then fails to vacate at the end of the notice.
So you can tell the tenant that he is not entitled to the return of the money.
You can find out more about this old rule here.
Can you require the tenant to serve such a notice to quit before you hand over the keys?
You mean before he actually moves in? No, it will have no effect unless the tenancy is periodic. A tenant cannot use a notice to quit to end a fixed term.
I am assuming in the above case that the tenancy was a six month one and the tenancy was periodic, although maybe I should have said that.
Thanks Tessa,
I am thinking of lets to students and jn doctors where there are only a few dates in the year that you can get new tenants, so if a tenant does not move out when expected it is very costly.
My special student tenancy agreements cover this point and provide for a higher rent if they don’t move out in certain circumstances.
http://www.landlordlaw.co.uk/landlord-law-tenancy-agreement-service
Has your “special student tenancy agreements” been tested in court?
Few tenancy agreement clauses have ever been tested in court. That does not mean to say that they are invalid.
I have striven to make them reasonable and so I think they have a good chance of being upheld if challenged.
They have been used for several years and I think I would have been told if anyone had had problems with these clauses.
Tessa not so sure your answer is correct here. Probably is as you are the lawyer out of the two of us, but two points.
First as far as my limited knowledge on this Double Indemnity equivalent for landlords goes, it applies if the tenant does not vacate but the Landlord wanted them to, or has suffered loss because they didn’t. If the Landlord agreed to the tenant staying on, and paying normal rent, I think he’d struggle to ‘qualify’ now for double and thus keep 2 weeks out of 4, which has a conveniently neat symmetry I agree.
But the double rent is meant to be compensation for inconvenience – if the Landlord agrees to the arrangement how can he then say it inconvenienced him?
Second pont is I don’t think the double jeopardy for the tenant is automatic, it is a penalty a Landlord can seek, but is not automatically entitled to. It is a bit like a s213 claim post Localism Act, where the tenant may claim double, or three times, but depending on circumstances, may only get x1
Or is it?!!!!!!!!!
I have not had any cases myself on this point and only know what I have heard from others.
It would here be used more as a ‘shield than a sword’ as the landlord is seeking to prevent the tenant from reclaiming the money.
So it would be used to defend any claim for the rent made in the small claims court by the tenant.
The circumstances seem to me to fit – the tenant gave notice to quit and then failed to vacate. I don’t think the landlord actually agreed to letting him stay – but a landlord does not have a lot of choice. That is presumably why the act was passed in the seventeenth century in the first place.
I may be wrong of course – few things are certain in law …
In all my years of advising in tenancy matters I have never read anywhere about that Act. Is it cited in Arden or Woodfall (not sure the latter is currently published)
I first heard of it in 2009 when I wrote the post here https://landlordlawblog.co.uk/2009/12/01/ancient-law-may-help-landlords/
Apparently it is still good law but (not surprisingly) is not well known. Adrian Thompson of the Guild of Residential Landlords says he has used it.
Presumably it had become a statutory period and as the tenant had given the required 1 Month notice, by staying on for an agreed term after that notice, it would be reasonable to presume that the new term would be the same as before ie 1 Month.
However, morally I feel that the L/L has gained certainly this extra 2 weeks and so the other 1/2 of the Months rent would always be a bonus as the L/L fully expected a vacant property at some point….it is just slightly delayed.
The only real inconvenience would be if new tenants were signed and this lost 2 weeks may throw out any maintenance timescales.
Assuming that the tenancy was periodic when the tenant served notice, and that the notice was valid, then the tenancy ended on the expiry of the notice.
If Neil wanted it to stay that way he should not have accepted rent, which he seems he did. Therefore there is a strong argument (I think) that not only Neil accepted that his tenant stayed (so no Distress for Rent Act. Plus we don’t know if Neil had re-let, which seems a condition listed in the Act) but that a new tenancy was created.
If so then yes Neil can keep the rent. But then did he handle the deposit correctly wrt. that new tenancy (giving PI again and all within 30 days)?
Considering this, I’m thinking that it might be sensible to refund the excess ‘rent’ (better not to call it that) and to move on.
Also, have you tried moving house to a deadline? With all the best intentions it isn’t so possible to say “I will move on X date”. All parties are seeking to have it run smoothly, often accommodating other tenants in the process. Suffice to say the reality of being without a home is homelessness. I really wish that landlords wd just have some empathy at times like this. Especially if you agreed to the extension and have suffered no hardship.
Hello
My ears were burning so thought it worthy to reply!
Section 18 Distress for Rent Act 1737 is still good law and as Tessa's article linked above shows, section 18 has been approved in an assured shorthold tenancy context by Oliver Ashworth (Holdings) Ltd. v. Ballard (Kent) Ltd. [1999] 3 W.L.R. 57.
I have personally used it on occasion and it's been used by members of the Guild many times too.
I think in this specific case though it might be difficult because in order to claim double rent, once the notice from the tenant has expired, the tenant must be treated as a trespasser. In this instance, the landlord seems to have allowed the tenant to remain (albeit for a short period) and has accepted rent after expiry of the notice. These actions alone don't necessarily imply the tenancy continues (or a new periodic tenancy as it might be) but it certainly wouldn't help for a double rent claim.
If we ignore the allowing to stay for a moment and assume the landlord did truly treat the former tenant as a trespasser, then, the landlord is entitled to double rent as an absolute right and does not need to show any loss:
What I think assists the landlord in this particular case is where the rent is payable in advance (as in most agreements), the landlord is entitled to the whole of the rent that was due on the last rent day before termination even though the tenancy has come to an end in the middle of the rent period [Ellis v *Rowbotham 1900 1 Q.B. 740].
Arguably because the tenancy had ended, there was no “rent” due for this period after the notice and so the rule above may not apply. The tenant couldn't have it both ways though. If the landlord treated the occupier as a trespasser, no rent was due but damages for use and occupation were payable at the equivalent of double the rent – possibly at a daily rate I'm not sure [s.18 Distress for Rent Act 1737]. Or, in the alternative, the landlord treated the occupier as a tenant for a month and Ellis applies so entitled to the full payment even if ends halfway.
Presumably therefore, the landlord is entitled to keep a full months rent regardless of how it is calculated?
Hope this helps.
Adrian
Thanks very much Adrian. My view is that the landlord is entitled to keep the money and I agree with your analysis.
Of course, as mentioned, if a new tenancy was created (it cannot be the same tenancy continuing if the notice to quit was valid) then while the landlord can keep the rent the tenant can likely seek penalty for breach of deposit protection requirements…
Is it worth the risk?
As for Distress for Rent… It is also very slippery ground based on what Neil said.
Brilliant analysis covering all bases thank you Adrian.
If the rent has been paid of course it gives the Landlord an advantage, as in the good old days before TDP, that he already has the money and the tenant has to make the claim to have it returned, as opposed to the landlord demanding it, at least where only one month’s rent is involved.
Probably better than trying to deduct it from a deposit if the rent had not been paid, or more was due. It is easy to see a Scheme Administrator siding with the tenant in such a case unless very strong evidence was provided by the Landlord to justify the double rent
Or you cd try the human approach. Because we are talking about homes here…