We have a worrying question on the blog clinic from Kevin:
I have just signed the contract on a new flat, and paid 6 weeks rent as a deposit, plus the rent, plus the agency fees only to be told 2 days later that the landlord has pulled out and we don’t have the flat. Do I have any kind of legal position here?
Yes you do. If you have signed the tenancy agreement and paid the rent, then the landlord is bound by the contract and it is too late for him to withdraw.
If he decides to break the contract and refuse to let you into the property, then so far as I can see he is liable for any additional costs you incur in finding new place. If the new place is at a higher rent, then he should be also be liable for the extra rent you have to pay for the period of the fixed term of your original contract.
You probably won’t want to go this far, but I suspect also that you may also be entitled to an injunction ordering him to allow you access to the property under the terms of the tenancy agreement you have signed.
I would suggest you write a strong letter to the agents saying that unless you are allowed to live in the flat you will be considering issuing proceedings for any financial losses you may incur.
For the sake of all us honest landlords who try to do the decent thing, please do follow this up and pin the landlord to the contract. TEssa – please let us all know if you hear how this turns out
I haven’t got access to my books at the moment but aim thinking it may even be considered an illegal eviction under section 1 of the Protection from Eviction Act 1977.
Having signed the agreement and being ‘good to go’ as it were Kevin is what is called a Protected Intended Occupier. As a PIO the property is lawfully his and he is being prevented from occupying. A TRO would take that on
If he’s signed up the tenancy agreement then the tenancy has started and the Landlord is obliged to give him vacant possession of the premises. That’s injunctible I’d say – damages an inadequate remedy, balance of convenience, etc.
If he’s let to someone else to thwart this he may also be able to claim for possession against the new tenant under Love & Lugg v. Herritty and possibly even an IPO as they’ve entered the property without the permission of anyone who could legally give that permission and thus are trespassing? In any event the frustrating of an injunction by reletting should surely sound in damages and I’d suggest the daily rate as if it were an illegal eviction myself.
I’ve used the Love v Herrity argument on a couple of occasions and drawn a blank JS. Judges taking the view that they wouldnt evict new tenants as they may not have had prior knowledge of the subsequent re-letting. I cant remember if there were any belongings left in the property of the previous occupant though
Thanks for your comments everyone, really helpful. Unfortunately I have now had my deposit refunded (I needed it to try and put on something else). I would imagine ths changes my position somewhat.
I suppose one worry for Kevin is that he doesn’t want to legally ‘force’ his way into the property because that would be just about as bad a start to a tenancy as is possible!
Plus he may not be able to in any case, as I guess it’s quite likely that the Landlord has given the tenancy to someone else.
If either of those circumstances are true, then I guess compensation would be the only alternative. What would Kevin have to prove to claim compensation for higher rent? Presumably he can’t just go and rent a penthouse flat somewhere and claim the additional for that?!
Nigel
“I haven’t got access to my books at the moment but aim thinking it may even be considered an illegal eviction under section 1 of the Protection from Eviction Act 1977.”
I can’t see how this would apply; it’s about unlawful eviction of residential occupiers and Kevin isn’t yet occupying so cannot be unlawfully forced to give up occupation. His tenancy doesn’t start until he physically moves in; before then, it’s just a contract for a tenancy.
“Having signed the agreement and being ‘good to go’ as it were Kevin is what is called a Protected Intended Occupier. As a PIO the property is lawfully his and he is being prevented from occupying. A TRO would take that on”
If you look at s.7 of the Criminal Law Act 1977 (Adverse occupation of residential premises), the offence is committed by the person trespassing; if the property is vacant I do not see how the LL can be committing an offence under this Act. And is it the local authority who prosecutes under CLA1977?
Westminster, but he could still apply for an injunction to enforce the terms of the agreement requiring the landlord to grant vacant possession, surely?