Can a tenant leave a property before the tenancy agreement expires?

At Housing Rights, we hear from lots of tenants who have all kinds of understandable reasons for leaving a property before the contract ends.  These range from students who’ve had to leave university unexpectedly, to people who have become ill and for whom a property is no longer suitable, to families who are living in substandard properties and whose requests for repairs go unheeded by the landlord

The majority of disputes over the return of deposits in Northern Ireland are not about cleaning, damage or rent arrears, as they are in other parts of the UK.  Rather, they are about other issues. According to TDS NI, these disputes often arise because a tenant has left a tenancy early.

Can a tenant leave the property before the agreement ends?

A tenant can, of course, leave the property if they wish, by writing to the landlord and giving appropriate notice of their intention to leave.  However, as the tenant entered into a legally binding contract to pay rent for the property he will remain committed to paying this rent until:

• the agreement ends or
• the landlord begins letting the property to other tenants. 

Tenants who wish to leave a tenancy early should be advised of the risks associated with doing this.  There is a strong chance that they will lose their security deposit and there is a likelihood that the landlord may take legal action against them or against any guarantor provided by the tenant to ensure that the tenant is ordered to pay the rent for the period the property was vacant.  Once new tenants move into the property, the old tenant's obligation to pay rent ends. 

People often seemed surprised that they can’t end the arrangement if it turns out to be unsatisfactory, particularly if they feel the property is not up to standard. Tenants should never just walk away from a tenancy and assume that there will not be any consequences. Tenants who are tempted to leave early have three options.  They can:

• invoke the break clause in the agreement, if there is one
• get the landlord’s written permission to end the contract or
• attempt to prove that the landlord is in breach of the agreement and has failed to remedy that breach.

Does the tenancy agreement have a break clause?

Some, but not all, tenancy agreements will include a break clause.  This must be a balanced clause allowing the landlord and the tenant the same rights to terminate the agreement if it proves unsatisfactory.  A clause which allows a landlord to end the tenancy early, but doesn’t extend this same right to the tenant would contravene the provisions of the Unfair Terms in Consumer Contracts Regulations 1999.

Normally, the break clause will come with certain conditions.  The tenant or landlord may be required to give additional notice or to pay certain specified fees in order to exercise this clause. 

Getting permission to leave a tenancy

Tenants should try to negotiate with their landlord if they are unable to continue the tenancy.  The landlord will often try to come to a mutually acceptable way of ending the tenancy. The landlord may agree to release the tenant from the contract if a replacement tenant can be found or if the tenant agrees to cover the costs of advertising the property and listing it with an agent.  Once the terms of the surrender have been agreed it’s important for the tenant to have a copy of the release and any associated conditions in writing and signed by the landlord.

Ending a tenancy if the landlord is in breach of the contract

If a tenant feels that their landlord has breached the terms of the contract, it’s essential that this breach is brought to the landlord’s attention and that the landlord is given reasonable opportunity to remedy the breach.  Often, we are contacted by tenants who feel as though their landlords are not dealing with their concerns about problems in the property.  We recommend that tenants in this situation

• write to the landlord listing any problems in the property and asking for the landlord to respond with details of how these issues will be addressed within 10 days
• write again, if dissatisfied with the landlord’s response, drawing the landlord’s attention to the relevant clause in the contract and pointing out that the landlord appears to be in breach of this clause.  If the clause relates to repairs, the tenant should inform the landlord that the next step will be to request a council inspection of the property
• contact environmental health at the local council if the landlord continually fails to remedy the problem
• write to the landlord again, if the problem has still not been resolved, explaining that you are issuing 28 days notice to quit as you believe the landlord to be in breach of the contract.  This letter should quote the terms which you believe the landlord has breached.

Even when a tenant follows this procedure, there is a risk that the landlord could attempt to sue the tenant for any rent owed until the end of the tenancy.  However, should this happen the tenant can produce evidence to show that the landlord was notified of the problems, given sufficient opportunity to remedy them and was aware of the potential implications of failing to respond to the tenant’s requests.

One of our advisers explains this process in the video section of our housingadviceNI site.

Getting the tenancy deposit back if a tenant leaves early

Unless the tenant can prove that he or she had the landlord’s consent to end the agreement early, the tenant may have difficulties getting the deposit back.  Tenants in this position should speak to a housing adviser to figure out how they should attempt to recover their deposit.

Landlords may have a legitimate claim on the tenant’s deposit, particularly if the tenant has left without the landlord’s permission and had no break clause.  While deposit companies like TDS can adjudicate if a tenant disagrees with the landlord’s decision to keep a deposit, they cannot deal with counterclaims. So, where a tenant has left early because they believe the landlord is in breach of the agreement, the tenant should try to recover his or her deposit through Small Claims Court instead. 

Tenants should always get advice before breaking their tenancy agreement.  Advice is available online from www.housingadviceNI.org or by calling Housing Rights on 028 9024 5640.