Can this landlord claim rent and use the property for himself?

Here is a question to the blog clinic from Sandra (not her real name) whose son is a tenant:

In a nutshell, my son had signed a contract for 12 months and had to leave after 6 months but is still responsible for the rent and bills until 27 April 2019. He has been paying this and also paying for the agent to advertise the property to find another tenant.

However, the landlord is now walking in and out of the property and using it to store his bike and put on the heating and changing the furniture without warning or permission.

He does not admit to putting on the heating but we took readings and photographs of the bike. He lives next door.
We consider he has now broken the tenancy agreement and is trespassing and stealing by putting on the heating when he does not pay the bill.

We also feel the inventory is now void as he has been in and out of the house without our knowledge and changed the furnishings so we have no idea what else he has done or could do before this is sorted out and we anticipate him trying to now rip us off on the deposit.

When this was reported the landlord offered as a ‘goodwill’ gesture to release him from the contract 2 months earlier so he clearly knows he was wrong but still went into the property again!

We would pay for everything up to the end of February but need to be released immediately as we cannot trust the landlord and feel very vulnerable.

Can you advise how we can sever this tenancy using the law?

Answer

My view is that this tenancy will already have ended. If the landlord has been using it for his own purposes then this will be treated by the courts as either an offer to surrender (which you can accept) or evidence that the tenancy has already ended.

As you point out – if your son is paying rent for a tenancy then the property is his (as the tenant). The landlord does not have any rights to enter save with your son’s permission or in an emergency.

The tenancy will have ended under a legal rule called ‘implied surrender’ which you can read about here.

What your son should do:

Write to the landlord and say that you have now taken legal advice and have been advised that as he (the landlord) has been using the property for his own purposes (and list here the things that he has done – eg stored his bike, used the heating, moved the furniture etc) the tenancy is at an end and that therefore you will not be paying any further rent.

NB You may want to secure evidence of his actions before you do this – so perhaps get photographs of his bike being stored there and the changed positions of the furniture etc.

Then go on and say that as the tenancy is at an end you (or rather your son) requires the return of the deposit and ask that the landlord arrange to return this asap.

If the landlord replies saying that he is not willing to return the deposit for any reason or claims to be entitled to make deductions for damage your son should say:

• That (unless it is something you agree to) he is not prepared to agree to any deductions as the property was left in good condition.  So any damage must have been done by the landlord as he has been using the property since your son’s departure.
• Therefore unless he makes arrangments within the next 14 days to get the money paid to you by the DPS, then you (or rather your son) will be bringing proceedings for its return in the Small Claims Court. If it is necessary to do this he (ie your son) will also be applying to the court for an order that he be repaid the rent paid for the period where the landlord was using the property as his own, ie from (and put here the month when you think this started).

I suspect the landlord will not want proceedings to be started and risk being ordered to pay rent back to you.

If however he proves difficult then get some advice from a solicitor or other legal advisor about the county court claim – which you can bring using Money Claims Online. You should bring the claim in the County Court rather than the DPS adjudication service as you will not be able to claim for the return of the rent via adjudication.

You will find a list of services which can help tenants here.

Good luck and let us know how you get on.