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Should my landlord refund advance rent paid now I’ve moved out?

Large housesHere is a question to the blog clinic from Joel who used to be a tenant (maybe)

I am a ex-tenant and need some assistance please.

I signed up to a 12 month tenancy and had to pay 6 months up front because I was a student. I had a room in a shared a house with three others but we all had individual contracts. Unfortunately one month into the tenancy I had a serious accident and had to move back with my parents.

When my housemates found out I could not move back, they found another person who moved in straight away. They confirmed that the landlord has met the new person and has acknowledged the change of tenant.

I contacted the landlord and asked to be refunded 4 months worth of rent and my deposit but he has replied saying that the new tenant has not paid any rent and for that reason he cannot refund any money, I quote from his email to me:

“It is my understanding that you have made a private arrangement with (name of tenant), because you paid rent in advance you should extract the money from him personally. I am not legally obliged to pay you the money back because you signed up for a 12 month contract. I am sorry but I cannot help you further.”

I have not made a private arrangement with the new tenant, in fact I have never met him or have any of his contact details. My former housemates tell me that he agreed to pay the rent but it was the landlord who told him it was already paid for!

What is my legal position?

I’m not sure you are an ex tenant Joel.  Sorry to be the bearer of bad news, but if you signed a tenancy agreement for 12 months and that tenancy agreement has not been replaced by a new one, then you are still the legal tenant and liable for the rent.

The fact that someone else is living in the property will not change this. Unless that new person has signed a new tenancy agreement with the landlord, and it sounds as if this has not happened.

I suggest you check up on this urgently because if the person has NOT signed a new tenancy agreement then the landlord can claim the rent from you for the final 6 months if this person does not pay.

After all it is not the landlords fault that you had an accident and had to move out.  The landlord is running a business and needs the income from the property – which you have contracted to pay.

Assuming no new tenancy agreement has been signed, the landlord is also right when she says that you have made a private arrangement with someone else to live in the property.  It may not have been done by you personally but it was done by people on your behalf and you are therefore responsible – as you are the legal tenant.

So you need to reclaim the rent from the new person in occupation.  I suggest you get in touch with this person and ask them to repay the rent to you.

So far as the deposit is concerned, the landlord should refund this to you at the end of the tenancy, assuming the person in occupation does not do any damage.

Incidentally, if you have any insurance cover you may want to speak to your insurers.  This may be something they can help you with.

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3 Responses to Should my landlord refund advance rent paid now I’ve moved out?

  1. Tessa and Joel

    No agent by the sound of it, but even if there is what follows still almost certainly applies.

    If you paid 6 months rent in advance I’ll bet that it has not been dealt with correctly in the tenancy agreement.

    This means it would be a deposit, and means that even if the deposit protection stuff looks as though it was done correctly by the Landlord (and I’ll bet it wasn’t) the wrong amount will have been protected.

    So a s213 offence will have been committed, and you should tell the Landlord you won’t sue for return of the deposit and up to x3 penalty award to you if he pays you back what you are asking for.

    Incidentally you say “… the Landlords has acknowledged the new tenant…” how – what has he done especially in writing?

  2. You’d think that the landlord, having met the new person, (quite obviously your replacement) wd take the initiave there and a) instigate a new contract with them then b) issue you with a refund. It sounds like the landlord is being typically hands-off. I’m sorry to hear about your accident. Even if “it wasn’t your landlord’s fault” (what an odd comment, lacking in tact) it’s a distressing situation to be in at a time like this, and I’m just sorry your landlord sounds so useless.

  3. Joel said he had an individual tenancy for his room only, left, then it seems that his landlord re-let the room.
    If so that would be a surrender by operation of law, I think. The fact the the new tenant did not pay rent may not be crucial since there was consideration that rent was due.

    I think the key for Joel is to show evidence that there is indeed an agreement between landlord and “new tenant” so that this person is in fact a tenant. Signature of agreement is not required at law.

    Landlord seems to want it both ways, on one line he acknowledge his a tenant, on the next he claims he is not.

    It is also worth checking how this 6 months rent in advance is referred to in tenancy agreement, as rightly pointed out by Industry Observer.



About the post author:

Tessa Shepperson

Tessa is a lawyer and specialises in creating products and services which help landlords and letting agents learn and understand landlord & tenant law. For example, she runs the Landlord Law website (now in its 14th year) and is a director of Easy Law Training Ltd and Your Law Store. Tessa also sits on the Property Redress Scheme Council. When not working she enjoys reading, cooking and messing around on the computer. You can also find her on Google

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Tessa is an English lawyer specialising in residential landlord and tenant law.

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