On having a petard and being hoist by it

Toogood v McCourt and others Medway County Court, 6 November 2015

Mr Toogood is a landlord of some 200 properties and runs the Student Lettings Agency in Canterbury. The Defendants were the parents (and guarantors) of three students of five who had had tenancies in a house from Mr Toogood.

The tenancies were for, I think, for a September 2013 to June 2014 period. Very sadly, one of the students, Mr Chadva, died in the property in January 2014, and the other tenants, his friends, found his body. Understandably, they were deeply upset by this. They did not feel that they could continue living in the property, and left, with some 5 months left on the contractual term.

Mr Toogood (picture below) apparently responded to this situation firstly by writing to the parents of the late Mr Chadva offering them payment terms over two years for the rent due for the remaining five months. Eventually, he decided to waive the rent for the late Mr Chadva.

Mr Toogood being understanding

The other students though, or rather their parent guarantors, were not to meet such eventual consideration. Mr Toogood demanded the rent in full from them (or their guarantors) for the remaining 5 months of the fixed term. One tenant paid up. The other three refused to pay any more than two months rent of the five demanded.

Mr Toogood brought a claim for the 3 months rent against the 3 guarantors, some £6,529 plus interest.

In legal terms, Mr Toogood did indeed have a claim – there is no obligation to mitigate for landlords on the fixed term of the contract, meaning that they can claim for rent for the remainder of the term without attempting to re-let.

Most landlords take a practical view, seek to re-let and ask the outgoing tenant for the rent up to the date of re-let. But not Mr Toogood, who would insist upon his legal right for payment of rent for the remainder of the contractual term.

Unfortunately for Mr Toogood and his legally accurate (if deeply unsympathetic) stance, the tenants (or their guarantors) had a defence. Mr Toogood, or his agents on his behalf, had gone into the property during the unexpired term and carried out substantial renovations. This, it was argued by the tenants, amounted to a surrender at law. (for more on the operation on surrender at law by landlord’s actions, see Artworld Financial Corporation v Safaryan & Ors [2009] EWCA Civ 303 and our report).

The Court agreed that the actions of Toogood, or his agent, in going into the property and carrying out extensive renovations amounted to a surrender, by taking effective possession of the property. Mr Toogood’s claim was dismissed.

The lesson? If you are going to insist on contractual rights over a practical resolution, make damn sure that you haven’t acted in breach of that contract yourself. Or, bluntly, you can’t have it both ways.

Given the amount of media attention to this case, I would imagine that Mr Toogood is now acquainted with the dubious benefits of insisting on strict legal rights while appearing to be, shall we say, inconsiderate.

 

 

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Housing law - All and tagged , .

7 Comments

  1. Not being an expert housing lawyer, I was startled to read in this post that “there is no obligation to mitigate for landlords on the fixed term of the contract.” Is there an authority to this effect?

  2. Remember that in a student area, there can be very little demand outside of the standard sign up time for student rentals.

    Therefore the normal practical solution of letting the tenants pay the rent until the landlords finds new tenants, may not be an option.

    • True, though it is hard to imagine that Canterbury is quite so strictly seasonal. And of course ‘tenants pay the rent till new tenants found’ as an agreement, would cover however long it took.

    • The problem is that a group of students pays more than a family let, the property will be setup for students, and if it is ever let to none students, it may be hard to get it empty at the correct time to rent to students.

      (Also if a A4 is every brought in, not having continuous student usage over many years may be an issue.)

  3. Pingback: Ben Reeve Lewis Friday Newsround #231 - The Landlord Law Blog

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