Here is a question to the blog clinic from Deidre (not her real name) who is a landlord
My tenant was given two month’s notice by my letting agents to leave my flat, as her family asked me to do as they wanted to get her into publicly paid accommodation. She then stayed beyond that date as the bureaucrats wanted a Court Order, so I put the process in motion, and incurred costs, which have now been repaid from the deposit.
She stayed beyond her eviction date, but then suddenly the LA allotted her a home, and without needing a Court Order. Luckily I was able to stop the proceedings and mitigate the costs.
She had paid a month’s rent in advance, but stayed less than that month. Now the family are harassing me for repayment for the days she did not occupy the flat which I need for my own occupation.
Answer
At the moment, the law is that the tenant should pay rent in accordance with the agreement set out in the tenancy agreement. So if the tenancy agreement says that rent is payable monthly in advance then that is what the tenant must do.
If the tenant then chooses to move out early, that is the tenant’s choice. However, in that case, strictly speaking I suppose the landlord ought to hold the property available for her as she had paid for it.
The landlord is only bound to refund the rent though, if this was part of a negotiated surrender agreement.
However when the section 21 provisions in the Deregulation Act come into force later this year, this will change. Then the tenant will be entitled to a proportionate repayment of rent paid.
The new rules are set out in s40 of the Deregulation Act which reads:
After section 21B of the Housing Act 1988 insert—
“21C Repayment of rent where tenancy ends before end of a period
(1) A tenant under an assured shorthold tenancy of a dwelling-house in England is entitled to a repayment of rent from the landlord where—
(a) as a result of the service of a notice under section 21 the tenancy is brought to an end before the end of a period of the tenancy,
(b) the tenant has paid rent in advance for that period, and
(c) the tenant was not in occupation of the dwelling-house for one or more whole days of that period.(2)The amount of repayment to which a tenant is entitled under subsection (1) is to be calculated in accordance with the following formula—
where—
R is the rent paid for the final period;
D is the number of whole days of the final period for which the tenant was not in occupation of the dwelling-house; and
P is the number of whole days in that period.(3) If the repayment of rent described in subsections (1) and (2) has not been made when the court makes an order for possession under section 21, the court must order the landlord to repay the amount of rent to which the tenant is entitled.
(4) Nothing in this section affects any other right of the tenant to a repayment of rent from the landlord.
This is due to come into force on 1 October
One question that will come up frequently:
Does ‘in occupation’ mean living a the property or just being in possession of the keys?
Here “in occupation” would mean actually occupying the property as in living there,
This new provision is terribly drafted and extremely unfair to landlords as it essentially means that the landlord must refund rent on an existing tenancy!
It will only apply if the tenancy is ended before the end of a period so landlords should be careful not to let that happen if they can.
It will also only apply to new tenancies until 2018.
I presume it will actually mean until the keys are returned, as ‘occupation’ means possession and control over the property.
I can just see tenants trying to argue it though.
Your last bit doesn’t really make sense. The landlord will have no control over the tenant voluntarily giving up possession before the end of the period, which is really the whole point of the new rule.