Hi I have a tenant introduced by the council who signed an AST 03/10/11 for 3 years with no clause for early termination. Unfortunately she has been a nightmare with complaints/petitions (letters kept as evidence) from 10-15 residents about visitors behaviour, noise levels, rubbish outside of the property, smoking from inside the flat which invalidates my buildings insurance,possible drugs etc. The T asked if she could end her AST and leave which I was happy to do and we both signed a Declaration of Surrender and she agreed that 01/07/2012 was fine and gave her 6 weeks to find a new property alternatively she could back to her dads if all else failed. She has not found anywhere else and now says that she wants another 2 weeks (apparantly going home to dad is no longer an option).I have reluctantly given her an extension until 13/07/2012 as I have new tenants signed up to move in on 14/07/2012 .We have signed a new declaration but I want to issue a Section 8 notice asap.She has broken several conditions of the tenancy agreement - so would I use Grounds 12 or should I also include Ground 14 because the residents were intimidated by the tenants friends when they hanging about outside of the flat.Also can I use the Declaration of Surrender under any of the grounds as she asked to leave and should really go. Basically I need to make this Section 8 notice as strong as possible so that if I do have to go court then the judge will have no option but to issue a Notice of Possession - I'm now in a situation where I will probably have to let the new tenants go because the T is so erratic and keeps changing her mind about going.
1. The Surrender might not be valid. You see, it's like a secondary contract. Unless it's worded as a Deed, it might fail on the grounds of 'No contractual consideration'- i.e. as a contract, it might be inoperative. Did you consult a solicitor when preparing it? 2. T seems to have broken obligations in the AST. Has she paid all rent up to date? 3. Yes, a s.8 Notice might be a good idea- grounds 12 and 14 PLUS any rent grounds [8/10/11] available.
I didn't consult a solicitor - I actually spoke with the housing department that introduced her and they advised that signing this document would be sufficient. I printed the Declaration from the internet, the actual content includes L name and address, T name and address, the actual date of when the lease agreement started and the following:- 1.The tenant surrenders and releases to The Landlord all her interest in The Property with vacant possession and The Landlord accepts this surrender. 2. Both parties release and discharge each other from all liabilities arising under The Tenancy or (other than this agreement) any other document or any variation of the terms of the tenancy EXCEPT the obligation on the part of The Tenant to pay the rent reserved in the tenancy (but only up to the date of this agreement). 3. The provisions of this agreement (other than those contained in this clause) shall not have any effect until this agreement has been dated. 4. The Landlord and The Tenant mutually consent to the termination of the Tenancy on this date 13.07.12. The document has been signed by both the T and the L . There are no rent arrears as she is on HB and her rent is paid direct to our account. If it isn't valid - are you able to suggest an alternative Declaration that would be considered valid?
Not online, no. But I'd never advise reliance on a non-Deed surrender. All is not lost, however. T is either bound or not bound by the supposed Surrender. 1. BOUND: T is now a trespasser but may be liable for rent equal to twice the annual value. Section 1 of the Landlord and Tenant Act 1730 [yes, really!] says: Persons holding over Lands, &c. after Expiration of Leases, to pay double the yearly Value. In case any Tenant or Tenants for any Term of Life, Lives or Years, or other Person or Persons, who are or shall come into Possession of any Lands, Tenements or Hereditaments, by, from or under, or by Collusion with such Tenant or Tenants, shall wilfully hold over any Lands, Tenements or Hereditaments, after the Determination of such Term or Terms, and after Demand made, and Notice in Writing given, for delivering the Possession thereof, by his or their Landlords or Lessors, or the Person or Persons to whom the Remainder or Reversion of such Lands, Tenements or Hereditaments shall belong, his or their Agent or Agents thereunto lawfully authorized; then and in such Case such Person or Persons so holding over, shall, for and during the Time he, she and they shall so hold over, or keep the Person or Persons intitled, out of Possession of the said Lands, Tenements, and Hereditaments, as aforesaid, pay to the Person or Persons so kept out of Possession, their Executors, Administrators or Assigns, at the Rate of double the yearly Value of the Lands, Tenements and Hereditaments so detained, for so long time as the same are detained, to be recovered in any of his Majesty’s Courts of Record, by Action of Debt [Sorry about errant formatting!] 2. NOT BOUND: T remains liable to pay at least the full rent
Thanks - this is the first Declaration I have ever used so please excuse for being a novice at this! We have agreed in the Declaration that she is to pay the rent only to 13/07/2012.However, as her rent is being paid by HB the T has not advised them to adjust the rent payment so I have still received the full rent for July (1st - 31st) albeit I am quite happy to return the overpayment if she leaves on 13/07/2012 but does that mean that she is not bound by the Declaration of Surrender we have signed and that if the matter had to go to court that it would have be of no value to provide this paperwork as evidence of her wanting to leave?
As I tried to explain in my last post, I do not have enough information to know whether the Declaration is legally binding. But if T believes that she's entitled to stay-on after the supposed surrender date, she's liable for at least the rent or- maybe- double annual value.
I've actually issued the Section 8 Notice today under grounds 12 and 14 to the T. So hopefully she will leave without too much fuss. Thanks for all your help.
