The statement that as part of the joint signing and as Romain rightly points out, the surrender propoed by the tenant being accepted by the landlord, a condition of that acceptance seems, unless I misunderstand, that the landlord retains the deposit.

That is why I ask is that in every case, standard 'clause' in the agreement letter, or was that just a one off in this specific case?

If a tenant simply wants releasing early say on November 9th, signs a mutual letter today to say they will pay the rent to that date and the C Tax and give the property back in a condition that would otherwise entitle them to receive their deposit back in full, if the Landlord as a condition of the agreement (IN EVERY CASE) is going to make it a condition they retain the deposit, I'd say that was a bonus for the landlord.

And probably unenforceable under Scheme Rules, for certain with DPS.

Or is the intention this agreement to surrender when submitted to DPS instead of a mutually signed release form, will compel DPS to release the deposit to the Landlord?

Reply to the comment left by "Industry Observer " at "29/09/2014 - 10:07":

Please re-read the article.

The only reason that the landlord is retaining the deposit in this instance is that rent arrears exceed the deposit amount. The same could apply to damages, subject to agreement of course.

If there were no damages or arrears then the only possible additional claim on the deposit that I can think of might be for the cost of re-letting the property and any void period relating thereto, and only if the surrender is within the fixed period of course. Now I fully accept this could be problematic on the basis that the cost of re-letting and any void period would be difficult to calculate at the point of the surrender, unless a new tenant was to move in on the day of surrender of course. That is a highly unlikely scenario though and certainly wasn't applicable to the case in point.
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I have re-read it Mark and harsh cases make bad law. So the answer to my query on agreement content is that it is not a standard document but will vary every time?

The costs for re-letting and void periods in my view would be very unlikely to be allowed for two reasons.

First they would almost certainly not be listed in the deduction reasons clauses in the tenancy and thus not be allowed by a Scheme. If they were in the agreement my guess is they would be struck out under an Unfair Contract Terms challenge.

Second as you recognise how you can anticipate void periods and make any calculation to compensate for them because the Landlord is accepting the risk of a void period by allowing the surrender (back to Romain's mutual agreement point). If you attempt to how do you quantify the alleged loss - how many weeks or months lost rent and how much in additional fees?

This is the same argument that will not be allowed for a Landlord on an alleged sale loss. Had the tenant vacated end of notice instead of sitting tight and waiting for the Council to re-house them the Landlord says they could have sold the house for an extra £5000 - could he, where is the proof?

I just don't see how you can try to calculate and compensate for unknown costs in advance of them arising (as opposed to arrears that vastly outweigh the deposit)unless the agreement to release is made very close to the vacating date and a new tenant has been found. As you say that scenario is unlikely to occur, or not very often.

But then in my experience neither is a tenant needing out of a fixed term agreement unless it still has many months to run.

Reply to the comment left by "Industry Observer " at "29/09/2014 - 15:19":

The agreement template allows for adjustment as required, e.g. sentences to be removed and fields to be completed as necessary.

I don't get your point with regards to unfair contract terms. Remember, it is the tenant who is surrendering early into a fixed term contract. The case law on recompense to landlords is very well established in this area. I am amazed that you think it is an infrequent occurrence, I can assure you that it is very common indeed. Why else would there have been so much interest in this thread and so many downloads?

Your second point is just a re-hash of my words, i.e. you are re-stating what I said in my previous post, hence I agree with you on that point 🙂
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Mark

The Case Law is very clear on commercial situations, as far as I am aware very much less so on residential.

Any you can quote on residential beyond stating the obvious that the old tenant continues to discharge the financial obligations until the new tenant takes them over appreciated. I'd be fascinated to see any Case Law that says a tenant signing away their legal rights is an enforceable contract.

Appreciate it is the tenant seeking to surrender early - but it is the landlord that is setting out the terms in effect in a contract so those terms would have to comply with Unfair Contract Terms provisions.

Reply to the comment left by "Industry Observer " at "29/09/2014 - 16:07":

Agreed on all points.

Tenants are not being asked to sign away their legal rights, what leads you to think they might be?
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Their right to raise a dispute?

Or maybe counterclaim later for Landlord failing to discharge s11 repairing obligations?

I have used a letter for this purpose, varied each time as yours can be for individual circumstances.

It has never entered my head to include getting the tenant to sign in advance that they release the deposit to the landlord. As I said what happens if it is held by DPS which it will be for many self managing landlords, and a mutual release form agreeing to deductiuons is needed?

Reply to the comment left by "Industry Observer " at "29/09/2014 - 16:31":

If the deposit is held by DPS the normal procedures will apply. The letter documenting the agreement between landlord and tenant simply does what it says on the tin and may be used in evidence if required.

If a tenant had a counter-claim or intended to raise a further dispute why would they counter-sign the Tenancy Surrender Agreement? They wouldn't would they. There is a remote possibility the tenant could swear that they signed the Tenancy Surrender Agreement under duress whilst their wicked landlord held them at gunpoint but they could also say the same of signing the AST in the first place!
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Agree with your first comment 100%

On the second one I meant repairing obligations that arose after the signing, unlikely but possible. Problem is the dear old OFT as was used to envisage all sorts of scenarios and if a clause would impact on them rule it out (he said from very bitter personal experience!!).

Think we have done this to death now Mark and I really do hope your agreement will indeed hold up should any tenant be so bold as to challenge it as I know you will have created it from the best of motives.

Reply to the comment left by "Industry Observer " at "29/09/2014 - 17:24":

Not only best of motives but with the backing of Counsels opinion too 🙂

I agree we've done this to death and if a landlord uses the template and a tenant challenges it then I'm sure Mark Smith will be happy to assist the landlord if required - for a fee of course - a fiver only goes so far!
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