Here is a blog clinic post from Simon (not his real name)
Hi, I’m wondering if you can help.
We signed a 12 month contract on Oct 22nd 2010 with our landlord and due to change of plans – handed our notice in on June 22nd 2011 advising we would be moving out 2 months before the end of our contract – on Aug 22nd 2011.
The estate agent/landlord accepted our end of tennancy, however advised that we may be liable to pay rent up to Oct 22nd 2011 – if they didn’t manage to find new tennants. The estate agency did state that this was highly unlikey due to the current market in London.
Following us handing our notice in on June 22nd 2011, the estate agency quickly added the flat to website and showed 2-3 parties the flat. However, after the first week this then went very quiet and I discovered yesterday that the flat hasn’t been shown to anyone in over 2 1/2 weeks which was hugely frustrating. When contacting the estate agent they said that dispite them not showing the flat to anyone, we would still be entitled to pay the rent past the 22nd August. It is my belief that they are not bothered about letting the flat as they think we will pick up the tab, which is hugely frustrating and also concerning as we can’t afford this.
Can you give me a steer as to what our options are on this matter?
I am afraid you are in rather a difficult position. The landlord (and therefore also his agent) is under no obligation to find a replacement tenant if the contractual tenant moves out early. You are the contractual tenants and are legally liable for the rent.
Its probably a bit late for you now, but the best thing to do in this situation is to find new tenants yourself before you vacate, and make sure that they are acceptable by paying for the referencing etc.
It is not as if the agents have made not attempt to relet the property at all. But their responsibility is to look after the interests of the landlord, their client, not you. Sorry!
Yes, I’m afraid it’s not good news for the tenant in this situation. Unless there’s a break clause in the contract, Simon can’t serve ‘notice’ to end his fixed term tenancy any earlier that its expiry date. He can only offer to surrender, with the landlord free to accept or reject the offer.
And, as I understand it, once there is a tenancy in place, it’s not a simple matter of contract law, where a party is obliged to mitigate their losses in the event of a breach. Rent is a debt and there is no obligation on the landlord’s part to mitigate a debt (by, for example, finding a replacement tenant).
The agent is, as you say, acting in the interests of his client, the landlord, by refusing to accept a surrender unless a replacement tenant is found.
(P.S. On a pedantic note, I’d like to correct Simon’s assertion that a 12 month term commencing on 22nd October 2010 will end on 22nd October 2011 – it should be 21st October 2011 unless the contract specifies otherwise.)
The tenant is liable, but if this went to court and you could evidence that the landlord had done nothing to mitigate the losses the judge would take that into consideration when making a judgement.