Check out report – can a landlord insist on being there?

Reply to the comment left by "Stephen Frame" at "28/01/2014 - 13:46":

Hi Stephen

This has put yet another spin on the situation.

When I read your first post I thought that your surrender of the tenancy was at the landlords request. Having now understood that it is at your request that changes everything.

Under the circumstances I believe you landlord and his agent are being perfectly reasonable.

They do not have to let you out of the agreement so asking you to pay for their inventory clerk and accommodating their needs to re-let the property are all perfectly reasonable in my opinion.

If you are worried about the inventory there is no issue in you instructing your own inventory clerk and paying for that.

Given the circumstances I recommend that you are as helpful as possible, otherwise the landlord and his agent could just say "stuff you, we will hold you to the contract and sue you if you breach it".

I have been in similar situations myself and I will always help tenants if I can but if they start to become awkward there is a massive temptation for any landlord to be equally or more awkward when the deck is stacked in their favour.
.

Reply to the comment left by "Mark Alexander" at "28/01/2014 - 13:50":

Mark - We are also Landlords. Hopefully GOOD ones! We have several properties that we have let over many years and to date have never had a dispute with a tenant. Sadly, we don't seem to get treated so well when renting ourselves!

Stephen from the extra info. you gave it seems that you did not serve any notice to quit as your fixed term tenancy does not end until 2015.
Effectively what you did is offer to surrender the tenancy. Your landlord is free to accept or refuse that offer, and is free to set out his conditions to accept.
His conditions are not unreasonable as he is letting you off rather cheaply, as pointed by Mark.

What could be in your favour is that the actions of the landlord/agent are pointing towards a "surrender by operation of law": Ie. they have asked you to hand over the keys, they have asked for a check out to be carried out, and they intend to take possession to carry out work. Put together these actions are , in my view, incompatible with your tenancy continuing, and as such you could claim that you do not owe anything past the checkout date.

@IO 13:49: It doesn't matter 'why' it is in that act. what matters is what it says. 😉

Hey Mark when I say back off that includes you!!! (only joking it's your ball we are playing with).

Yes I agree I think it changes a lot - not everything but a lot. I didn't realise early release from a two year AST was being sought, an object lesson for all tenants not to sign up to longer than even a year first time round. And indeed for Landlords to in some respects before granting longer terms perhaps with yuour beloved deed of Assurance Mark?!!

The legal position here is quite interesting, simple but as you also rightly say could get very messy.

First there is no legal right at all for a tenant to give notice during a fixed term tenancy unless there is a break clause or, if they walk, they are confident they can prove breach on the Landlord's part sufficient to outweigh any claims he might then bring.

Second there is no obligation on a Landlord to actually do anything he can just sit back and claim the remaining rent payments from you. Mind he'd then have to allow sub-letting but this is a certainty in commercial and there was a case about 5 years ago where a firm of solicitors(!!) wanted out, Landlord said no, they said he had to mitigate their loss by finding replacement tenants, and the sols lost.

Mind another warning here for Landlords is of course once down this route the tenant is entitled to source the sub-tenants.

I further agree with Mark that the Landlord and agent are not being that unhelpful here. I wouldn't go as far on that as Mark but not far behind. It seems to me the only hindrance is the request for a 1st move out so LL can do work he wants to (perhaps to get an even better rent he is hardly releasing you for a lower one I'll bet).

That I think is the only 'unreasonable' bit in the LL position and I think he should just let you go especially if the new tenants are going to bring him increased income.

But he is under no obligation to do so and frankly Stephen you are damned lucky he is letting you go on any terms!!!

Sorry

OK everyone else's go now, time back on!

@Romain

The trouble is it doesn't say what you think or want it to say. It is in the 85 Act because that is where the LL repairing obligations are contained, and it is no coincidence that there is an implied right of access for a landlord on 24 hours notice.

But it still doesn't outweigh the right to peceful occupancy. Go in when a tenant with exclusive possession has expressly said "NO" and you are trespassing, and also I would argue harassing the tenant.

Nice pair of Statutes to sue under (if you are a tenant).

Reply to the comment left by "Stephen Frame" at "28/01/2014 - 14:06":

I posted a set of questions and several follow up comments for tenants to ask their landlords on another thread yesterday - I have consolidated my comments and question below ....

1) Can I see your credit status please? I would be happy to pay the £2 or whatever it costs for the landlord to get a copy of his/her credit file from Equifax.
2) Which deposit protection scheme do you use?
3) Can I see the Gas Safety Certificate and EPC?
4) If you are using a letting agent, are they members of ARLA, NALS, RICS etc. and can I see their PI insurance policy and Client Money Protection Insurance certificates please?
5) Will you be getting a professional inventory done?
6) Are you prepared to enter into a “Deed of Assurance”
7) Can you show me evidence from your mortgage lender that you have consent to let this property please?
8) May I contact previous and/or existing tenants for references please?
9) May I have a copy of the tenancy agreement template to consider before I commit to referencing please?
10) Please confirm all costs including referencing, documentation, renewal fees etc.

I might also want to add a few more given a bit more time to think about this.

If a tenant asked me all of these questions I would be reassured that I am dealing with a very professional person, wouldn't you?

I would be far more likely to select a tenant who asked me those questions that a tenant who asked none. Maybe I’m a bit strange like that but if a tenant tells me they want to stay long term that’s what I’m looking for. If they ask me the right questions I know they have thought things through properly and are not just playing lip service to my desire to find long term tenants.

If a landlord has nothing to hide, why would such questions pose a problem?

If I am competing against a landlord with another property for the same good quality, long term tenant could you blame us for giving this set of questions to the tenant?

The Deed of Assurance is the deal closer for us.

Remember, our market is working families are the retired, not students, house shares, young professionals or LHA claimants.

Hopefully that will help you in more ways than one, i.e. as a landlord and as a tenant 🙂
.

Romain

I agree with your post 14:17 and surrender. If the agent is prepared to accept the keys on a set of agreed terms then that will be surrender.

However the problem is it looks as though it is only going to physically happen if it happens at all on those terms.

But I agree - if the keys are handed over and surrender accepted then the tenant does not have to pay to 14th Feb (Valentines don't you just love your agent and landlord Stephen?!!) unless of course he has agreed to do so.

Incidentally Stephen all this really needs to be put in writing otherwise of course any of the alleged agreed terms can be disputed by one party or the other.

Reply to the comment left by "Industry Observer " at "28/01/2014 - 14:30":

I don't want to digress, but it does say what I think it does, since I quoted it literally. It is irrelevant to argue why it is in LTA 1985: The fact is that there is a right of access to inspect condition of property. so if T unreasonably refuses he is in breach.
If used reasonably this does not interfere with peaceful occupation, with potential consequences for him.

That said, I am glad to see that you now agree that tenant's "notice" in such case has no value whatsoever to oblige the landlord to accept anything.

Romain

The last sentence I never disagreed just hadn't seen that bit in the various posts.

Tell you what Romain answer me this, a practical question.

If this clause in the 85 Act is so powerful, and post dates the 1977 Act, why if there are agents and landlords by the 1000 being refused access every day say for gas safety renewal visits, where they have a criminal liability?

OK so why don't those agents just give the 24 hours notice and just barge in? Assuming the lkeys still work and they don't suspect two large alsations of being behind the door, why is there so much pussy footing around, why don't we all just give the 24 hours notice (assuming it is reflected in the agreement though it doesn't have to be because it is imorted into all tenancies anyway) and go in?

I'll tell you why - it is because express refusal to allow access may well be a breach, but do you seriously think a Judge will give an order under ground 12 in a s8 notice.

Note your word "reasonably" - the word that has made countless lawyers rich!! You a lawyer by the way you are mighty quick to quote Statute have you got all the books beside you?

Seriously the Judge might grant an immediate order that access be allowed for gas safety renewal, or a dog in a block of flats and the owner/Landlord receives warning of a forfeiture notice fron the block agent I've had both of those cases.

I will argue the point no further Romain we are in reality not that far apart and it is the reality that couts here, not the theory. But if you advise a client Landlord to rely on that clause, and he intends to barge in after 24 hours, best also to advise him of the PoE 1977 Act consequences, and also if the tenant has expressly refused access, the Harassment Act 1996 I think it is.

As I understand it the landlord is in a weak position here unless you and he agreed a thorough inventory, photographed (each room) dated and signed by both parties at the start of the tenancy, preferably through an independent inventory clerk/service. The landlord will find it extremely difficult to argue for retaining any deposit without this initial agreement between you.

No inventory clerk/service is going to get embroiled in either side of any dispute without clear agreed evidence of the state of the property at the start of the tenancy - why on earth would they? So it's down to your word against the landlord's and this coin will spin in your favour. Be at the meeting, be polite but state firmly your intention to receive your deposit back in full.