It has happened to the best of us, our tenant gives notice then at the last moment changes their mind and they will be staying.
This can cause a landlord and any would be (signed up tenants) a nightmare. Although landlord will have the legal right to possession, he will have to get a court order first which could take months (by which time the tenant will probably be long gone. An answer may lie in section 18 of the Distress for Rent Act 1737.
To quote the act.
“whereas great inconveniences have happened and may happen to landlords whose tenants have power to determine their leases, by giving notice to quit the premises by them holden, and yet refusing to deliver up the possession when the landlord hath agreed with another tenant for the same”
The act goes on to provide that if a tenant gives notice and then fails to leave, a landlord can charge double rent “and such double rent or sum shall continue to be paid during all the time such tenant or tenants shall continue in possession as aforesaid“.
However note the following:
- The tenant must have served a proper valid notice to quit, which has been accepted by the landlord
- The double rent can only be charged on a daily basis for the period of time the tenant overstays
- It cannot be used if the tenant just fails to return the keys
- It cannot be used if the tenant just stays on after the end of the fixed term (in which case in most cases a new periodic tenancy will arise)
Arguably the money can be deducted from the tenants deposit in the normal way, but few judges or adjudicators are aware of this law, so it may be hard to enforce (although landlords could just print out the extract from the statute).
I would be very interested to know if any landlords have actually used this rule, and if so, whether (if it was challenged) they were able to uphold the claim at court or arbitration.
