There is nothing in law to prevent you doing this. However, in our experience it is better to wait until the current tenants have left even though this leaves a void period and some lost rent:
- The Surrender of the tenancy is a future event you cannot accurately predict so entering into an agreement (reservation or tenancy) before the current tenancy is surrendered carries a risk of breach of a contract. Given the housing crisis, predicting this future event with any degree of certainty has become harder. There will be certainty of the tenancy end date if the departing tenant serves a valid notice of termination (AKA an NTQ) or where a deed of Surrender has been executed in accordance with Section 1 of the Law of Property (Miscellaneous Provisions) Act 1989, however neither of these events gives certainty of when the tenant will actually Surrender the tenancy. It is better to avoid the complications and stress that comes with the uncertainty.
- Many tenancies last for years, so the property often needs redecorating or other maintenance before re-letting. Until the tenancy is surrendered, you do not know for certain what state the property will be in and what, if any, remedial works will be required after the current tenant has left e.g., redecoration.
- The current tenant will have little or no interest in the re-letting of the property so arranging viewings while the current tenant is still in place can be inconvenient and time-consuming.
- With the current tenant still in place, the likely presentation of the property needs to be considered. This is especially true during what will be a busy time for the current tenant as they prepare to pack their belongings and prepare the property for handover. Even with a tenancy clause requiring the property to be kept presentable, it’s rarely as tidy as you would like. You only get one chance to make a first impression and this applies to marketing a property for re-let!
- Until the current tenancy ends the tenant has a right to quiet enjoyment of the property – conducting lots of viewings at a busy time for the current tenant could be considered a breach of this right.
- If there have been any alterations or additions to the property since the start of the tenancy or the state of repair or decoration has changed, using photographs taken prior to the start of the current tenancy would be providing misleading information and this would need to be made clear to prospective tenants/buyers.
- In trying to capture photographs of the property with the current tenants in situ, you would need to consider the tenant’s privacy.
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