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Joshua
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24527
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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This is a question for tenancy agreement again. I live in the

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This is a question for tenancy agreement again. I live in the same flat long term fixed term agreement. The agreement ends on the 4th of the year. The landlord asked to renew it with another fixed term for 1 year and not raising the rent. I asked him to renew with one giving me the oportunity to move out with a 2 month notice and he refused. He said if Idon't agree I will need to move out. Is he allowed to refuse a renewal of agreement with a 2month notice clause? Why should I be bound to stay until the 4th of Agust every year and if something happens and I need to move out another date that I have to pay the remaining months' rent? If he wants to raise the rent up to how much is he allowed to do so?
Submitted: 1 year ago.
Category: UK Property Law
Expert:  Joshua replied 1 year ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

May I clarify with you when your current fixed term expires please - you mention the "4th of the year"?

Customer:

4th of August of 2013 I meant. Started on the 4th of August 2012.

Joshua :

Thanks

Joshua :

There is nothing that compels the landlord to agree to any particular term requested for a new tenancy agreement nor is there any requirement that you agree to any term he requires. Both parties are free to agree (or not) terms in respect of any new tenancy. If the landlord wishes you to leave he must give you a minimum of two clear months notice to move out.

Joshua :

If he refuses to agree a break clause (i.e. a clause that enables you to end the tenancy early, if you are otherwise keen to stay but for lack of agreement on this term, you may consider not being entirely but off by this element alone. The reason being is that even where there is no break clause you can still escape early by replacing yourself as a tenant with another either by asking the landlord to remarket the property and finding a new tenant himself and/or by you advertising for a new tenant. The landlord has no choice but to do so as under common law if you wish to leave early he is require to mitigate his losses.

Joshua :

Given that the rental market is very buoyant at present it does not usually take long to find a replacement tenant.

Joshua :

Is there anything above I can clarify for you?

Customer: What do you mean consider not being entirely but off by this element? In case of remarketing he has to advertise it with the same rent I pay now I suppose? Also, I'm afraid from the agency they will not be as interested to find someone judging from other friends' similar cases... how do I deal with that? How can I control it? Also, please tell me how much (percentage) is the allowance for the rise of the rent per year?
Joshua :

I am very sorry for the delay in reverting to you. I have been away for the weekend and without internet access.


Joshua :

I am afraid there is a small but important typo above. The sentence should read: "...you may consider not being entirely put off by this element alone."

Joshua :

The landlord must remarket the property on your request with the same rent you have to pay for the remainder of your tenancy. He cannot advertise the property at a different rent without your agreement.

Joshua :

If the landlord cannot demonstrate personally or via his agent that he is actively marketing the property in the same way as they would if you were not already in situ then you can advise him that you will seek to limit the amount of rent he can continue to charge you. A court would usually expect a landlord to be able to replace a tenant within a reasonable time - 4-6 weeks is usually more than sufficient. If a landlord has not done so and has no goof explanation for his failure then a court will be disposed to limit the amount of rent he can continue to charge you because a court requires a landlord to mitigate his losses. In this case it means that he must demonstrate that he has pro actively remarketed the property. In addition of course there is nothing stopping you advertising for a replacement tenant too. The rental market is very buoyant at present in most areas of the country and properties are generally being let without difficulty.

Joshua :

There is no law that governs the amount rent is put up for this type of agreement. There are regulated tenancies from the past which do regulated the amount rent can be put up by but with shorthold assured tenancies such as this it is the market that dictates rent and accordingly up to the parties to agree the rent between them.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help with any further?

Customer:

Thank you for the reply, still some areas to clarify, when you say to limit the amount of rent if he doesn't remarket the property properly what do you mean? The rent to become less? how much to limit?

Customer:

Also, I did not really understand, in the case of me having to move out sooner, I let the agency know, I advertise the property as well and if nobody is found in 4-6 weeks, how do I act? What are all these about the court? I am alittle confused. Could you redirect me please to these acts or clauses of the law that explain such situations? Also, how much is the percentage of the rent that the landlord is allowed to rise every year?

Customer:

Thanks in anticipation

Joshua :

certainly. With regards XXXXX XXXXX the amount of rent, contractually, you are required to continue to pay rent for the entire period of the fixed term at a minimum. However, if you ask the landlord to leave early, your position as tenant is in breach of contract because you are seeking to break the contract early. Accordingly, the landlord can claim damages which is a starting point is the remaining rent for the entire period of the fixed term. However, the common law requires the landlord to mitigate his losses and accordingly, in this case, it requires him to attempt to find a new tenant. If he fails to do so due to lack of any effort on his part, a court would not allow him to continue charging rent beyond a point which the court considers is reasonable to expect him to found a new tenant unless he can demonstrate that despite best efforts on his part he has been unable to locate one. What I mean therefore by limiting the amount of rent he can charge is that if after six weeks he has not found a new tenant and could not demonstrate that he has marketed the property in any meaningful way, a court may restrict what further rent he could charge to you and consider allowing you to leave the tenancy without further penalty.

Joshua :

if a tenant cannot be found despite the best efforts of the landlord and you can see that the property is being actively marketed and you are unable to find a new tenant to replace yourself either, there is little you can do other than wait for a new tenant to come along. However, if you believe the landlord is not marketing the property in any meaningful way or not doing so at all, you would have a basis to apply to the court for an order that the landlord is failing to mitigate his losses by failing to remarket the property in any meaningful way and ask for an order from the court releasing you from the tenancy without further liability.

Joshua :

you can make such an application using form N244 if it became necessary to do so

Customer:

So, where can I find all these articles of the law? Why aren't you answeing the question about the allowance of the rise of the rent?

Joshua :

I believe I have addressed your question with regards XXXXX XXXXX rent rise allowances above but my apologies if it is no obvious or if it is not displaying the some reason. I will repost my above answer again in the hope it displays correctly. do let me know if you have any questions in respect of the below:



There is no law that governs the amount rent is put up for this type of agreement. There are regulated tenancies from the past which do regulated the amount rent can be put up by but with shorthold assured tenancies such as this it is the market that dictates rent and accordingly up to the parties to agree the rent between them.


Joshua :

as regards XXXXX XXXXX you can find these articles of law I do not fully follow your question. are you able to kindly clarify?

Joshua :

Do ou mean what is the basis for the landlords duty to mitigate his loss?

Customer:

Oh, thank you! So, this means from one year to the next they can raise the rent by as much as they want? There is nothing to protect the tenant who wants to stay in this property longer? My agreement is not shorthold assured, it's longterm something, I can't remember exactly... I will look it up and tell you. About the law, I was asking where can I find the law written, all these that you are telling me, where have you read them from? If I could look it up myself.

Joshua :

When did you move in - do you recall? Depending upon when you moved in you may have much more protection under the law?

Customer:

And also, how can I proove for instance that the agency is not booking viewings for the flat if they remarket the property? It has happened to afriend of mine when he wanted to move out before the end of the tenancy and nobody could be found... I suspect the agencies in that case are not interested to show the property...

Customer:

I moved in on 4/8/2012 so now the agreement is to be renewed, when do I acquire more protection? Also, could I ask the landlord to paint the walls as they need painting? He did not have them painted when I moved in. Can he refuse this?

Joshua :

Tha law changed in 1997. This agreement will automatically be a shorthold tenancy agreement or contractual tenancy agreement unless it is a long lease. Could you advise what kind of agreement you believe you have if it is something different as this is material?

Joshua :

With your permission I will delay addressing your other points until this is clarified because it may effect the replies

Customer:

oh, ok sorry, I think it is an assured shorthold tenancy, what else could it be (for one year)? I will look it up to confirm and let you know. So, where can I find all these clauses of the law?

Joshua :

Thanks. It can only be an AST now as a result of the Housing Act unless you live with your landlord which is not the case here I presume.

Joshua :

With regards XXXXX XXXXX law as above, the above principles all follow from long established fundamental principles of common contract law - i.e. decisions of the courts which as you will know make law in their own right. The common law in this respect establishes three rules:
1. that a claimant cannot recover a loss which could have been avoided
2. that a claimant cannot recover a loss which hs has avoided
3. that a claimant can recover a loss which he incurred in mitigating his loss.

Joshua :

The relevant cases which underpin the above are Payzu v Saunders 1919 Pilkington v Wood 1953 and British Westinghouse v Underground Electric Railway 1912.

Joshua :

However you are not expected to know the above authorities to bring a claim in the county court. They are basic underpinnings of the common law and every judge will be deeply familiar with them. Knowing the above principles is more than enough.

Joshua :

In terms of maintenance the Landlord and Tenant Act 1985 places an implied term in every tenancy that the landlord must keep in repair the structure, sanitary installations and exterior of the property which means he must maintain and repair the boiler and sanitary installations. Landlords can also be held liable if they have failed to provide a safe and healthy environment for their tenants. You could consider using or threatening to use the HHSRS inspection system and ask the environmental department at the local council to carry out a health and safety assessment of the property if he is not maintaining ti properly including painting. They have the power to serve improvement notices on the landlord to remedy any areas which do not come up to standard.

Joshua :

There is a raft of legislation and regulations to protect tenants in respect of landlords repair obligations. The landlord provides for duties under statutory legislation. The Environmental Protection Act 1990 provides that the Landlord has a duty of care to provide adequate and safe conditions in their properties and the Housing Act 2004 introduced the Housing Health and Safety Rating System which shifted assessment towards health and safety impact. Each council is responsible for developing its own policy but most have a substantive list of requirements that address mould, damp structure and so on. There is a useful guide to the same here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/9425/150940.pdf.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Joshua :

Is there anything else I can help you with on the above?

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

Customer:

Yes, thank you! You have covered me. I will look all these up and find out whether the walls in my flat need paintng and just dirty walls is a sufficient issue for them to need painting...

Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24527
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and 2 other UK Property Law Specialists are ready to help you

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