Here is a question to the blog clinic from Adam who is a tenant
I am a tenant, I have been living in a flat since April 2011 and this year renewed for another twelve months.
At the beginning of July I was unexpectedly offered a job in another area of the country which I could not turn down and I am taking the post later this month. The removal van is booked and I will have the keys for my new flat next week.
I immediately asked my landlady if I can finish my contract early, acknowledging that I will have to pay rent until a new tenant is found, but she has declined stating that I must honour my contract and either pay for the full twelve months or continue to pay monthly until April next year. She said that she has paid her agent a fee for the twelve months and will lose money if I leave.
I feel that she is being unreasonable. I have been a good tenant, never missed my rent and kept the flat immaculate. Is she right to deny my request and if so has she potentially cost me rent by not advertising the flat for a new tenant?
I have good news and bad news for you Adam. First:
The bad news
A fixed term tenancy agreement is a binding contract and there is unfortunately case law which confirms that a landlord does not have to ‘mitigate his losses’ if a tenant wants to end the tenancy and move out early.
The case in question involved commercial premises and it is possible that if a similar case arose today about a residential tenancy, the Court might find differently. But at the moment it is the authority.
So the landlord is not at fault for refusing to advertise for a new tenant for you. She has after all performed her part of the contract in making the property available for you to live in. She is entitled to expect that you comply with your part of the contract by paying the rent.
The good news
However, if you find a tenant yourself and offer to pay for all the expenses involved in changing the tenancy such as referencing, then you are in a much stronger position.
The Office of Fair Trading has stated (in its guidance on unfair terms in tenancy agreements) that it is unfair to refuse to allow a tenant to assign the tenancy (after the first three months) in those circumstances.
So I suggest that you find a new tenant to take your place.
If the landlord refuses unreasonably to accept the new tenant, you can then threaten in turn to assign the tenancy saying that any clause in your tenancy agreement prohibiting assignment is (in default of their being a procedure for you to end early on finding a new tenant and paying any associated costs) void and unenforceable.
If you just leave
If you just move out and do not arrange for new tenant to take your place, note that the landlord is fully entitled to claim the rent from you until the end of the fixed term and to sue you if you don’t pay it.
However the landlord is NOT entitled to have all the rent paid up front – she is only entitled to have it on a month by month basis – as she would get it if you were living there.
Note also though that if she uses the property herself she may be deemed to have accepted a surrender as discussed in this case on Nearly Legal.