There is nothing in law to prevent you doing this. However, you need to consider the following factors for the current tenancy before deciding to do this:
- 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.
- 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 the ease/difficulty of access for viewings and 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. 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 departing 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 tenancy would be providing misleading information and this would somehow need to be made clear to prospective tenants/buyers.
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