Here is a question to the fast track blog clinic from Maartin (not his real name) who is a landlord.
I have a couple who rent a flat from me. They have provided me notice in the correct time frame via email / instant messaging service / photograph of original signed and dated letter to which I have responded and accepted via the instant messaging service.
The couple are now stating that they have nowhere to move to and want to stay on for at least x 1 month ( but I offered an extension to July 2018 to which they said they would consider but did not get back to me to confirm or decline)
The couple have later come back to me and asked to stay until “the end of May” which will cause me a potential issue as my tenant will need to wait to move in for this to be accommodated
I stated to the couple in my instant messaging correspondence I would ask the prospective tenant if this would be acceptable. His response is that he has to move himself and he needs to be in on the 1st of May.
What is the best option of making sure the couple are gone by 1st May 2018?
As is often the case with readers questions, half of the facts a lawyer needs to diagnose the problem have been left out of the information provided. So, as this is a ‘fast track’ question I asked a few supplemental questions and got the following answers:
Q: When does or did your tenants fixed term tenancy end?
A: Term 01/11/2017 – 31/10/2018 – 6 month break clauseQ: Do your tenants pay rent monthly?
A: YesQ: What date did your tenants give in their notice as the date when they were going to vacate?
A; The tenants provided me written notice of intent to vacate by 30th April 2018Q: When was this notice served on you?
A: 26th February 2018
Answer
The double rent liability
The reason why I asked those questions was that I was wondering if the landlord would be entitled to charge double rent via the rule in the old 18th century Distress for Rent Act 1737 (s18). This allows a landlord to charge a tenant double rent when they serve a notice to quit and then fail to move out.
However, as I say in my post here, the tenant must have served a valid tenants notice to quit which the landlord has accepted.
It now appears from the answers given that this is actually a case where the tenants have activated a break clause. Can this be treated as if it were a notice to quit? It may be.
They certainly gave the landlord notice that they wished to leave and the landlord accepted it and relied on it to the extent of looking for and finding another tenant.
So you could point out to your tenants that they have rendered themselves liable for double rent if they remain after 30 April.
This is what the Act actually says:
And 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: from and after the said twenty fourth day of June one thousand seven hundred and thirty eight, in case any tenant or tenants shall give notice of his, her, or their intention to quit the premisses by him, her, or them holden, at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the time in such notice contained, that then the said tenant or tenants, his, her, or their executors or administrators, shall from thenceforward pay to the landlord or landlords, lessor or lessors, double the rent or sum which he, she, or they should otherwise have paid, to be levied, sued for, and recovered at the same times and in the same manner as the single rent or sum, before the giving such notice, could be levied, sued for, or recovered; 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.
So far as I am aware it has not been repealed.
The tenants security of tenure
However, this is probably all that you can do so far as legal remedies are concerned.
You cannot force the tenants to vacate as they have a legal right to remain in the property until you have obtained a court order for possession and a bailiffs appointment (as per the Protection from Eviction Act 1977).
When it comes down to it, there are only two ways that you can (legally) get vacant possession:
- The tenants leaving voluntarily, or
- Getting a Court order and then using bailiffs
Court proceedings for possession will take several months – so cannot be used to get vacant possession on 1 May.
There is, therefore, no way you can make sure the couple are gone by 1st May 2018 other than by persuading them to leave.
Your next tenant
What about the new tenant you have found? Well if your current tenants fail to move out you will not be able to rent to him, so it is VITAL that you do not sign any form of tenancy with him until you have vacant possession.
Otherwise, if the tenants don’t move out you will be in breach of your tenancy with him (as you will not be able to go ahead) and he will be able to claim compensation from you for breach of contract.
You may be able to claim any compensation you have to pay back from your existing tenants – but do they have the money to pay it? Plus I am sure you don’t want all the bother and expense of going to court.
So what can you do?
It really depends on the type of tenants you have. If you have tenants who have no money and are not worried about having CCJ’s registered against their name, then there is probably not much you can do (other than take enormous care never to rent to anyone like them in future).
They will just leave when they want to.
However, if they are going to want to rent another property in the future they will not want a CCJ made against them and will probably also need a reference from you when they move.
In which case you can threaten to sue them for the double rent if they don’t pay it (and/or any compensation you may have to pay the new tenant if you have signed an agreement with him) and tell them that you will not be willing to give them a reference. Hopefully, they will not want to risk this and will move out to avoid this happening.
But it is not a happy situation.
And finally
If you decide to go to court, I suggest you get some legal advice first from a housing solicitor as you will need to check:
- That the break clause has been activated correctly
- That the double rent rule applies in this situation
Plus if you decide to bring eviction proceedings you may need to base your claim on their notice ending the tenancy rather than upon section 21 or section 8. But if this is the case, you need to be careful about accepting rent from them after 30 April.
But I would not recommend this. Your best course of action is to reach some sort of agreement with them – which may mean allowing them to stay a bit longer.
Having accepted the tenant’s notice to exercise the break clause and bring the tenancy to an end, would “giving them an extension” not create a new tenancy that the landlord cannot terminate for 6 months?
Or would it be renegotiating the terms of the agreement?
As a separate issue, it amazes me that some landlords arrange for new tenants to move in the day after existing tenants are expected to vacate. Not only does that cause problems for landlord if tenants fail to leave, it gives no time to identify and fix issues with the property.
The other equally common mistake I encounter Michael is landlord selling a property, getting right up to the deadline and the tenant is still there. Sometimes because the tenant has given notice but more commonly because the landlord has served s21 and merely kept their fingers crossed.
To Michael Barnes
A landlord does not have to accept a valid notice exercising a right to break. The service of the notice is sufficient to end the tenancy on the date specified in the notice. When a tenant serves a valid notice to quit it cannot be undone by agreement and any agreed “extension” is the grant of a new tenancy. Whilst I cannot quote any authority to support the view, I think the same has to apply to the service of a valid notice exercising a right to break.
The duration of the new tenancy depends on what the parties agree. The six month period during which a section 21 notice cannot take effect is calculated from the start of the first tenancy.
If the landlord, whether expressly or impliedly, accepts an invalid notice exercising a right to break it all starts to get a bit tricky.
God, what a mess ….
“When a tenant serves a valid notice to quit it cannot be undone by agreement ”
Well, surely it can. If the two parties agree an extension then who is to tell them they can’t. Landlord takes a risk though, I see that; if, by virtue of staying on, a new tenancy is created. I guess that’s why the double rent rule even exists – to deter this kind of retraction.
But for all the reasons that are obvious though,finding a new home just doesn’t always go smoothly. I really feel for the tenants. It can be unbelievably stressful, and with that clock ticking away.
Resolving this amicably means both sides have to lay their cards out on the table, and be honest here, I guess. If the tenants have found somewhere new but just can’t move in yet, they should be honest about that. If they’re still looking, then they should say so. Landlord should decide any extension from there. If it were me, I would give them some grace but make it clear in writing that they can extend till x date, otherwise double rent will start being charged from that date forwards. (most tenants have absolutely no idea about the double rent rule; try to be a bit kind and at least give them some warning)
As others have commented, landlord should never have said 01 May to a new tenant already. That’s just adding drama and messing things up for some other poor soul.
I slept on this and then realised what Lawcruncher meant… and where the nuance lies here..
That is, you can extend the tenants time in the property by agreement, but this is not an extension of their current tenancy. By telling them “You can stay longer” you are, as Lawcruncher says, creating a new tenancy.
I would still suggest that try and agree an extension, that works for both parties, but having a new tenancy complicates everything I realise. Charging double rent after x date (as I suggested) could only work if they served notice again, and breached it again.