tenants breaking lease.

My tenants signed a fixed term lease due to expire in late September. However they have now advised that they are moving out when the next rent falls due. They are breaking the lease by one month. The PRTB advised me that I could withold the deposit. However the tenants have said the PRTB and Threshold have said that I can relet without difficulty so must give them back their deposit. I am not available to turn apartment around at this short notice as wasnt expecting tenants to leave until expiration of lease. Opinions welcome.

It's only one month, annoying but I don't see that there's much you can do. Withhold the deposit but expect to have to then deal with a claim... how much trouble/paperwork is it worth to you? Only you can tell.

You could try asking them for help... say you could hold the deposit, but neither of us wants that hassle... will you undertake to steam clean bathroom/cut grass/ wash windows (what ever it is that you would normally do) and then I'll be able to rent out again... negotiation is always worth a try.

If the PRTB is advising that you can withhold the deposit, I would be taking that advice rather than advice from the tenants who have a vested interest in getting it back. A lease is a legal agreement and losing the deposit seems (to me) to be a fair penalty for breaking it. Ask the tenants how they would feel if you had broken the lease and asked them to move out early, it has to work both ways. Maybe suggest to them that you will withhold the deposit until you are able to let it again. You will in a better position to see what your loss is and to justify what you are not returning to them. If you are not able to re-let immediately, for what ever reason, including not being in a position to turn it around at such short notice, then they and not you will have to bear that loss. I was in a similar position last year with the lease being broken 3 months early and the tenants accepted that they would lose their deposit. It is a hassle for a landlord but you just have to expect it to happen sometimes and just get on with it.

+1 for Paper-folder's advice. Tell the tenant that you're going to try and turn it around ASAP and if that happens within the month, a partial refund can be arranged. If not, the deposit is lost.

Thanks Paperfolder, Thirsty and dmos87 for your input. Really appreciate other peoples point of view as landlords get such bad press. I will contact PRTB again today an clarify position with them before making any decision.

Meath Lady said:

Thanks Paperfolder, Thirsty and dmos87 for your input. Really appreciate other peoples point of view as landlords get such bad press. I will contact PRTB again today an clarify position with them before making any decision.

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The PRTB are unable to give advice as this may prejudiced any claim. They will only put basic facts in writing so will not answer you request directly.

If yo go to the PRTB website you can find a "Guides", 'Termination of a Tenancy'. From this, I quote:

It is important that a tenant serves a valid notice of termination as otherwise he/she might not be entitled to a refund of any deposit paid.

Thus, no notice of termination is valid (unless you accept it) as the tenancy is a fixed term. However, if the tenant decides to leave anyway, the landlord is obliged to relet the property as quickly as possible in order to mitigate any loss. Thus, it does not allow the landlord time to redecorate. If the tenant brings a case to the PRTB, the landlord would have to have proof of his/her endeavours to relet.

Any loss incurred by the landlord may be recouped from the tenant. It could be said that as there is only 1 month remaining on the lease, nobody would be willing to rent for a month. IMHO, if the tenants have given the landlord 1 month's notice (although invalid) it should be plenty of time to find a new tenant provided the tenants permit viewings at suitable times. If they do not allow viewings then they are hindering the landlord in finding prospective tenants and could suffer the loss.

It must be said that tenants do not have to allow viewings as it would be a breach of their peaceful occupation of the property. It is always best to try to negotiate any issues.

Meath Lady said:

. However the tenants have said the PRTB and Threshold have said that I can relet without difficulty so must give them back their deposit. .

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Translate: If you relet without difficulty they will be entitled to their deposit back. It is impossible to relet immediatly unless the house is in immaculate condition and you have an ad up before they leave and do showings while they are there. And I'm sorry, but no landlord can be expected to do this 'immediately'. Certainly not if they've just told you unexpectedly and they are leaving next week.

facetious said:

the landlord is obliged to relet the property as quickly as possible in order to mitigate any loss. Thus, it does not allow the landlord time to redecorate..

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I wouldn't agree with that Facetious. If the place needs painting or cleaning it takes time. It has to be empty and assessed and then somebody has to be hired. If you don't do it properly you are not doing your job as a landlord. You would also risk having a bad tenant if they are willing to take a place that is not in good nick. In addition the rent would be less for a place that is not decorated properly.

Landlord would be expected to mitigate his loss through reasonable means and advertising/seeking new tenant quickly would be expected. Issue of redecorating is interesting. Reality is if a redecoration is required anyway then a vacancy is inevitable at some point so can't really expect the tenant to pay for that time if it was required anyway. What is the actual loss really?

Suggest doing viewings immediately. I always find that advertising and doing viewings while existing tenants are in situ work far better, place looks lived in, small issues or inadequacies are overlooked and not obvious when house lived in (eg paint on walls not perfect, etc). Easy to sort when tenant moves out. One of the 'risks of the trade' as a landlord that tenants may move out unexpectedly.

facetious said:

It must be said that tenants do not have to allow viewings as it would be a breach of their peaceful occupation of the property. It is always best to try to negotiate any issues.

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Is this actual factual or an opinion? I cannot see how a tenant could refuse to permit viewings to a landlord provided that sufficient time is given and viewings are held at reasonable times and for a reasonable duration. I have often wondered about the exact legal position re viewings. (appreciate in practice you work with tenants to facilitate, etc, but it is the legal position I am querying).

Legal position is that the tenants are under no obligation to facilitate viewings during their tenancy.

Seagull said:

Legal position is that the tenants are under no obligation to facilitate viewings during their tenancy.

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Quite right, Seagull.

In the RTA 2004:
Provisions regarding landlord’s obligations
12.—(1) In addition to the obligations arising by or under any other enactment, a landlord of a dwelling shall—
(a) allow the tenant of the dwelling to enjoy peaceful and exclusive occupation of the dwelling,

Anytime a landlord goes to his property (except in cases of an emergency) the landlord must have made a prior appointment with the tenant at a mutually agreed time. There are basically two occasions that the landlord/his agent(s) may go to his property (by appointment):
1. for an inspection of the property
2. to carry out required works on the property.

A tenant is obliged to facilitate both these occasions at any reasonable time. Any worker required to carry out repairs would be considered as an agent of the landlord but they cannot enter the property without the tenants express permission and at an appointed time.

Gerard123 said:

Landlord would be expected to mitigate his loss through reasonable means and advertising/seeking new tenant quickly would be expected. Issue of redecorating is interesting. Reality is if a redecoration is required anyway then a vacancy is inevitable at some point so can't really expect the tenant to pay for that time if it was required anyway. What is the actual loss really?

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That is what I was trying to say but seem to have expressed myself badly. Must stop rushing and read my posts before (and after) posting!

Appreciate all the input. However PRTB have advised that the tenants have broken their lease and have not given the required notice therefore they are not entitled to their refund, irrespective of when a relet occurs.. No matter how clean a tenant leaves a property, there is still always considerable cleaning required once they move out. Under no circumstances would i advertise a property until I had it fully ready to relet. Would appreciate a comment from someone who may have had a resolution of this dispute with the prtb.

They are not that recent and the PRTB may have changed their opinion since these.

TR is a Tribunal resolution
DR is a dispute resolution

Failure to mitigate loss
Mar 2011 TR02/DR1056/2011
July 2011 DR 1661 / 2010
Dec 2011 DR 610/ 2011
Mar 2011 TR 18/DR718

Extract from a PRTB Report of Tribunal Reference No: TR26/DR1362/2011

Therefore if a tenant ends a 1-year lease tenancy 4 months before the term is due to expire, the tenant is liable under that contract for the rent as it falls due for the remainder of the term unless the landlord succeeds in re-letting the dwelling (although a landlord is required to mitigate his/her loss by re-letting the dwelling as speedily as possible). In such circumstances it is at the landlord's discretion whether or not to retain from the deposit any outstanding rent due under the lease tenancy.

Hope that is helpful.

As its only 1 month it's reasonable to keep the deposit and you'd leave it at that. I'd expect in many of the cases above the tenants left much earlier and the landlord was going after the remainder of the lease over and above the deposit.

Re allowing access to prospective new tenants. This should be governed in the lease agreement - within the last month of the lease (if not being extended) the landlord has the right to show the property at reasonable times i.e. it's meant to be mutually agreeable but if the tenant played silly buggers and wouldn't accomodate you could threaten to withhold the deposit but your probably better off just waiting than wasting your time with someone with a grudge.

Andy836 said:

As its only 1 month it's reasonable to keep the deposit and you'd leave it at that. I'd expect in many of the cases above the tenants left much earlier and the landlord was going after the remainder of the lease over and above the deposit.

Re allowing access to prospective new tenants. This should be governed in the lease agreement - within the last month of the lease (if not being extended) the landlord has the right to show the property at reasonable times i.e. it's meant to be mutually agreeable but if the tenant played silly buggers and wouldn't accomodate you could threaten to withhold the deposit but your probably better off just waiting than wasting your time with someone with a grudge.

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It would be an illegal clause in the lease as it takes away the rights of the tenant to his/her peace and exclusive use of the property. However, many tenants (especially if they want a reference from the landlord) usually allow viewings once or twice a week at pre-arranged times and with 24/48 hours notice.

You may put anything you want in a lease but it cannot over-ride statuary laws.

Tell the tenants you're holding their deposit and I'd be pretty sure they won't pay their rent for the last month....

In my honest opinion, you can dance around the place quoting laws and regulations as much as you like... a respectful chat (if that's possible) can achieve 10 times more.

Its perfectly reasonable for it to take the guts of a month to relet, and thats in a good market. You need to get it clean enough for letting (tenants never do this well enough), redecorate or refurnish as required, then advertise and hold viewings, and usually the new tenant wont take up posession immediately. They clearly forfeit teh deposit and also should facilitate you in you commencing these works while they are still in residence.