Trenners Posted May 2, 2007 Report Share Posted May 2, 2007 Hi, Perhaps the legal eagles could advise ..... I have a prospective tenant who is currently renting a house in Essex and paid 12 months rent in advance and signed an AST that doesn't expire until October 2007. He now wants to relocate into Wiltshire (because of his job) and needs to sign a new AST for a rental property in Swindon. a) The Essex landlord will not release the tenant from the AST early and will not refund any of the rent in advance? Is that legal or can the prospective tenant force the landlord to re-market the property as long as the tenant covers all costs? Is this an unfair term? Can I create a 2nd AST with this tenant (for the Wiltshire property) even though the Essex landlord won't release him. The Wiltshire home will be his main residence from now on - because of his work. Any advice ? Thanks, Mark Link to comment Share on other sites More sharing options...
Matthew Posted May 2, 2007 Report Share Posted May 2, 2007 Hi Mark, Everyone has overlaps of tenancies at some period don't they, when they have two AST's on the go, I know I have, albeit for short periods (a week or so), but I'm not sure why it would be a problem for anybody to rent two flats anyhow, as long as they can afford it. I guess the main thing to take into account is whether he can afford both rents? The first landlord is being unreasonable, but interesting question re forcing the re-market of the flat, would be interested to know that one. Chow, Mat. Link to comment Share on other sites More sharing options...
Melboy Posted May 2, 2007 Report Share Posted May 2, 2007 Well surprisingly I can hopefully answer this question for you Mark but my legal qualies. are Zilcho! I have been in the same position as you a few years back.......................... The Tenant is liable for the contract and can be made to pay for the full 12 Months in the event of the Tenant wishing to withdraw from the Tenancy contract.... for whatever reason. The Landlord may re-advertise the property and gain a new Tenant (double rent). Is it fair? No... and most reasonable Landlords would try and accommodate the outgoing Tenant in some way. Your prospective Tenant can have 2 rental agreements or if you like, two rented properties at any one time. Mel. Link to comment Share on other sites More sharing options...
Trenners Posted May 2, 2007 Author Report Share Posted May 2, 2007 Hi all, Many thanks for your advice. The dubious letting agent is called "**********" who are saying that it is contrary to the Housing Act for a tenant to have 2 x AST agreements. It is defined in Section 1 of the Act (so they insist). Anyhow - I agree with the advice on this forum - there is no reason why a second AST shouldn't be created. The tenant paid all of the rent, upfront, on the Billericay tenancy. If the tenant is not released from the agreement by the landlord (which I think is both unreasonable and unfair) then the landlord will not be financially penalised (as he has already received all of his rent). I think a fair approach would be for the Billericay landlord to release the tenant from the AST as long as the tenant covers the cost of finding a new tenant. I doubt that the dubious letting agent will recommend this though - as it might impact their fee. Thanks for your help etc .... Mark Link to comment Share on other sites More sharing options...
GPEL Posted May 2, 2007 Report Share Posted May 2, 2007 Strictly speaking the agent is correct. An AST can only be used for someone's main residence and you cannot have 2 main residences. Therefore, it could become a problem if goes to court for some reason and there are 2 ASTs in place for one person. Applicability of the Housing Act would relate to the property that a judge decides is a main residence. If the second property isn't a main residence then it should be set up under a contractual tenancy. Don't understand why people automatically think an agent is doing something wrong when really it's the individual that doesn't know all of the industry facets... Though a tenant is obligated until the end of a tenancy, a landlord cannot stop someone leaving early and has to mitigate the tenants losses by seeking replacement tenants as soon as possible. It is illegal for a landlord to obtain 2 simultaneous rents for a property. As soon as a new tenancy is created the old one for the previous tenant is killed off alongside any tenant's obligations. Not having a dig at anyone but I don't think it's a good idea to "out" agents on this site like this and could lead to recriminations. Link to comment Share on other sites More sharing options...
Simon Dewsberry Posted May 5, 2007 Report Share Posted May 5, 2007 Hi All This seems pretty clear to me There are 2 issues : 1 can a Landlord run 2 ast on the same prop - NO so he cannot get double rent - if 2 ast were in force then both tenants would have legal rights of access etc - NOT ALLOWED so when LL writes new ast it has to be with permission of tenant to dissolve old ast. THE OLD AST CAN ONLY BE KILLED WITH THE AGREEMENT OF THE OLD TENANT IT IS NOT AUTOMATIC- this is important as it gives the tenant some bargaining power! At this time the date will set the rent due and the rest will have to be refunded (T should make this a condition of agreeing to dissolve ast ) However LL is perfectly entitled to do nothing and leave ast in place until end of intiial term or notice term! 2 can a ten have multiple ast's in place YES as many as he wants no restrictions - eg family home rented in West wales and job reuires that on a 3 week rota he is in Glasgow office, London office and Bristol office also once a month he likes to go to devon for a break he could rent properties in all of these locations NO PROBLEM (as long as he could afford it!) More common is a situation a am often in Guys from up country come to Cardiff and work mon -fri then go home for the weekend. They could be renting at home as well so 2 ast's on the go all the time I dont think it is possible to "force" a LL to remarket a property - but as a LL he would presumably rather have the property occuppied than vacant even if only from a security perspective ? and hence is being a bit short sighted - The tenant doesn't need to be released from the AST in order to sign a new one but does need to be in a financial position to afford the new rent as well. Simon Link to comment Share on other sites More sharing options...
GPEL Posted May 6, 2007 Report Share Posted May 6, 2007 Generally agree with rodent however only the tenant's main residence can be an AST, other properties for the same tenant would be on a contractual tenancy. The tenant may be put on 2 ASTs, by others etc, but one would be classed differently should a legal perspective need to be taken. Also, if a tenant leaves early, though still liable for rent to the end of the fixed period, the landlord has a duty to mitigate the tenant's losses. This means the property has to be re-marketed & tenanted and evidence proven of attempts to do this if requested. Should the property not be re-marketed, the tenant could legitimately argue that their continued rent liability should be cancelled. This has been tested in case law and judgement influenced by the landlord proving he was fully re-marketing the property. Link to comment Share on other sites More sharing options...
Simon Dewsberry Posted May 6, 2007 Report Share Posted May 6, 2007 Hi GPEL That is interesting but does seem reasonable! If it were me i would take tenant on - put him on AST and suggest that he "assists" the landlord in remarketing the property with free advertising of the prop online where there are no shortages of freeads - gumtree etc also to marshall the enquiries to th landord and chase for results - Although the old LL will probably deem every new prospective tenant "unsuitable"or screw up the viewings! As far as 2 AST's - suggest that tenant tells former LL or agent that his new living arrangements are none of their business - I really cant see how these AST's are going to interfere with each other - as putting him on a contractual tenancy is not going to change the position with the first LL in any way that i can see !! Worst case scenario is that tenant will lose 6 mths rent - not nice but a legal contract he entered. Realistically if he is able to find a "suitable replacement" the LL or letting agent should have the good sense to have the prop Occ not Vacant. The only other issue is the AST which may insist prop is not left unocc for more than 28/30 days in which case tenant will need to "visit" regularly - which if it were me i would do any way as i would want assurance that it hadn't been let while i was paying for it !!! Some common sense and dialog required here methinks........... Simon Mark - What have you started here ?!!!!!!!!!!!!!!!!!!!!!!!!!! Link to comment Share on other sites More sharing options...
GPEL Posted May 7, 2007 Report Share Posted May 7, 2007 Rodent The 2 ASTs would only interfere with each other if action under the Housing Act needed to be applied such as serving notices and the tenant dug their heels in. For example, S21 served for re-possession but ignored by tenant. If it went to court a judge could find that the S21 is not valid as the agreement isn't an AST, even though written as one. Consequently, the notice to re-possess is invalid and might need re-serving. The chances of this scenario arising may be slim but still a possibility. Always ask if the property will be a main residence. Link to comment Share on other sites More sharing options...
Simon Dewsberry Posted May 7, 2007 Report Share Posted May 7, 2007 Hi GPEL That could be really interesting : If tenant elects wiltshire as main place of res (which it will be ), the essex LL maynot be able to evict and relet so leaving him with unocc (although paid for) prop. Messy! Unless of course court deems first written agreement to take precedence! If so then AST is not worth the paper it is written on from the second LL point of view- either way it is going to be worthless to one of them !Is this right ????????? Wouldn't have thought any LL with any sense would let it get to that stage though - but there is always one .... If it were me .....as above........... Simon Link to comment Share on other sites More sharing options...
Trenners Posted May 7, 2007 Author Report Share Posted May 7, 2007 Hi Simon, The Essex landlord is quite happy to have the property paid up and empty until the end of the tenancy in October although, if I understand GPEL correctly, this is illegal as the landlord should try and mitigate the tenants loss by trying to relet the Essex flat. The Wiltshire home will be the principal residence when the agreement is signed on 1st June 2007 - this would mean that the Essex AST would be illegal because the Essex property would no longer be the principal residence. I have advised the tenant to pursue the letting agent and landlord in Essex for the rent owed .... with my advice and help if needed ........ We will proceed and create an AST from 01.06.07 in Wiltshire. This problem only arises because the Essex landlord and letting agent are greedy ! Mark Link to comment Share on other sites More sharing options...
Simon Dewsberry Posted May 7, 2007 Report Share Posted May 7, 2007 Hi Mark Get tenant to check his ast to verify whether or not he is obliged to not leave prop unocc for 28/30 days or more. Chances are it will be a condition of LL ins policy - maybe give you a little more "leverage" if used against him ??! If tenant advertises on WWW and finds a replacement wanting 12 mth ast, LL and agent would be bonkers not to react and take up offer ? AS ten will pick up ad bill anyway what on earth are LL/agent hoping to achieve here ?? There's nowt strange as folk ..................... Simon Link to comment Share on other sites More sharing options...
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