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Joshua
Joshua, Lawyer
Category: UK Property Law
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Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi, Since 14th January I have been renting an old farmhouse

Resolved Question:

Hi,

Since 14th January I have been renting an old farmhouse in a rural area. The property has a total of 9 acres, and the letting agents advised me that because of this the rental would have to be under a Common Law Tenancy Agreement.

The house is on one side of a small, steep-sided valley, and is approached from a lane via a 200m long drive which goes down one side of the valley then up the other side to the house. The drive is entirely on property that forms part of the rental.

When I first viewed the property last December, I saw that the drive was in a very poor state of repair with many deep ruts and potholes. As it had been raining, it was also very muddy and slippery, and was quite dangerous to drive along. I raised the state of the drive as a concern with the letting agents and regularly asked them what the landlord's intentions were with regard to repairing the drive.

Eventually the agents advised me that the landlord was hoping to fill the potholes and ruts before any tenancy commenced, and a couple of days before I was due to sign the agreement they advised me by email that repairs to the drive had been done.

I signed the agreement in good faith on the basis of what the agent had told me regarding repairs to the drive, but when I arrived at the property no remedial work had been done.

After more than three months, despite repeatedly asking the agents to get the drive repaired, still nothing has been done.

Had I known that no improvement had been made to the drive, I wouldn't have signed the agreement. Had the landlord advised that he had no intention of repairing the drive prior to any tenancy commencing, I would not have pursued the tenancy at all.

A week or so before April's rent was due, I advised the agents that I would withhold rent until repairs to the drive had been carried out, and until a number of other repairs that had been outstanding for months were completed. I also advised them that if all of the repairs on my list were not completed to my satisfaction by 13th May (the day before May's rent is due), I would consider that they had enticed me to sign the contract under false pretences and I would therefore deem it to be invalid and give them notice of my intention to quit the property.

Although they have now made arrangements for contractors to investigate some of the outstanding issues, they have still not made any commitment to sort out the drive and have, of course, threatened legal action for non-payment of rent and possible abandonment.

The funds are available to pay the withheld rent immediately should this go to court, but I would like to know what my position is likely to be if repairs aren't completed by the stated time and I give notice to quit.

Regards,

Andrew
Submitted: 3 years ago.
Category: UK Property Law
Expert:  Joshua replied 3 years ago.
Welcome to JustAnswer! If you've any queries once you've read my answer do ask. When satisfied, kindly click the Green ACCEPT button.

Do you still have a copy of the email confirming that repairs to the drive had been completed please?
Customer: replied 3 years ago.
Yes, see below...

<email start>

Andrew

I’ve just spoken to the builder – they are attending to lots of maintenance items at the house including changing the oil tank to be a modern plastic bunded tank, which will be filled with oil for the start of the tenancy – this has been ordered and should be delivered before Friday – but if it hasn’t there is approx 1200litres in the tank to start with and the new delivery will be on its way.

They have emptied the septic tank and renewed and re-set the manhole cover.

They have also cleared the garden and regrouted the bathrooms.

They have also filled in some of the larger pot holes on the driveway; they haven’t however done a complete job as it is the landlord’s instructions to do the whole driveway properly when the weather improves.

The builders have also found that the water pump has failed and this is being replaced tomorrow.

I am not sure of your plans on Friday afternoon, but if you intend on going to Little Cwm in the afternoon you may find the builders there just finishing up.

Kind regards

<email end>
Expert:  Joshua replied 3 years ago.
Thanks. The first thing to say is do not withhold rent. This is grounds for eviction and there is never an excuse for it. Pay the rent - you can then go to court to claim damages for the landlords breach of contract and claim the cost of making the repairs yourself if necessary or seek an order that the landlord attends to the repairs.

Providing you have paid the rent you can seek compensation for the lack of amenity of the drive that was represented to you. This will not be sufficient a basis to enable to you to cancel th contract but you will probably be able to claim compensation in the sum of between 5-15% of the monthly rental depending on the severity of the problem. In addition you can obtain your own quotes - I suggest at least two - and sue the landlord for the cost of the work to enable you to carry out the work yourself.

The easiest way to issue proceedings is by using the www.moneyclaimonline.gov.uk website
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24527
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other UK Property Law Specialists are ready to help you
Customer: replied 3 years ago.
Hi Joshua,

I had withheld April's rent, and as a result it seemed like things were finally starting to happen.

Arrangements were made to have some minor repairs done, and to send out a plumber to repair the downstairs toilet, the central heating, and the shower pump. Based on your helpful advice, and because things seemed to be moving forward, I paid April's rent.

Unfortunately the euphoria didn't last long.

Although the letting agents were told by a plumber at the begining of February what was causing the problem, they hadn't bothered telling the new plumber. He spent a couple of hours investigating, and came to the same conclusion as the original plumber.

The letting agents are now saying this needs further investigation, which is absolute rubbish. They know what the problem is, and a qualified Aga engineer will be able to recommend a solution instantly.

I have been at the property since mid-January, and issues still haven't been resolved. I'm not willing to wait another couple of months to see what happens.

A lot has gone on with this tenancy - far to much to put here - but over the last few days I have set up a web site. Will you please go to www.littlecwm.com and take a look at the "Articles" and "Forums" (Strutt & Parker -> Diaries of Despair).

Considering all the rubbish that has gone one, and is still going on, do I have any grounds to break the contract?

Many thanks,

Andrew
Expert:  Joshua replied 3 years ago.
Unfortunately a tenancy agreement can usually only be ended early by agreement or if the property is uninhabitable or unavailable. It is unlikely in the circumstances that would be sufficient to enable you to break the contract early.

I've advise you not to withhold rent as this is grounds for eviction. you can however claim compensation for loss of amenity in the property for the relevant period you have suffered issues with tenancy. Depending on the level of severity, you may be able to claim between five and 30% of the rent pro rata to to the relevant period.

You can replace yourself as a tenant and upon replacement, you will be released from liability under the tenancy.
Customer: replied 3 years ago.
Hi Joshua,

I have a couple of final questions for you, but before asking, I'm being asked to accept your latest answer. When I click Accept I'm being asked to pay another fee.

Is this correct? I've signed up to the "unlimited questions".
Expert:  Joshua replied 3 years ago.
You do not have to click ACCEPT again. If your questions are follow up questions to the original you can ask them free of charge. If they form a new line of questioning, you should consider posting a new question.
Customer: replied 3 years ago.
Thanks for clearing that up.

A few final questions on this thread then.

Hypothetically speaking, if I chose to ignore the advice you have given me and I decided to withold rent, how long would it be before the landlord could take action against me.

Assuming any action would involve court proceedings, how long after starting an action would a hearing be set.

If I had moved out of the property by this time and couldn't afford to pay two lots of rent, and the court ruled against me, would a CCJ be issued or would some other penalty be imposed.

Expert:  Joshua replied 3 years ago.
He can take action immediately if you have been late in paying rent before. however he is unlikely to be able to obtain possession on this fact alone. He is able to otherwise apply for eviction after you fall eight weeks or more behind whereupon he is entitled to a guaranteed possession order.

the landlord would have to use the standard possession procedure and would likely take 4 to 6 weeks to obtain a hearing date. Assuming possession was granted, you would have 2 to 4 weeks to comply with the order in which the landlord would need to return to court to obtain a warrant for possession which is when bailiffs attending property to remove you by force if necessary and this would likely take a further 2 to 4 weeks before the appointment was made. In practice, the whole procedure normally takes 2 to 3 months to complete their bear in mind the landlord can sue you for rent arrears at the same time as well as court fees so it is generally not a particularly sensible approach to take on your part
Customer: replied 3 years ago.
As always, that is a very prompt, detailed, and helpfull answer.

Thank you very much.
Expert:  Joshua replied 3 years ago.
Pleasure
Customer: replied 3 years ago.
Hi again.

I've just received a notification that my question has been opened to all UK Property Law experts.

I'm very happy with the help you have given me, and don't really want other experts getting involved, so how can I stop this?
Expert:  Joshua replied 3 years ago.
I'm not really sure what that is about. I will close the question. Sorry for the inconvenience.
Customer: replied 3 years ago.
Not an inconvenience to me.

I just don't want others getting the impression that you haven't dealt with my questions, or that I'm not happy with your help.
Expert:  Joshua replied 3 years ago.
THanks. Kind regards
Customer: replied 3 years ago.

Hi Joshua,

It has been a while since you answered a question for me, and I hope you will be willing to help me again. Although I have posted this as a reply to the previous question chain, I expect to pay for this as a new question.

Your answer dated May 16, 2011 10:00 AM explained a legal process to me regarding the consequences of non-payment of rent. Can you confirm that this same process applies, even though my tenancy is under a Common Law Tenancy Agreement? Or does a different process apply?

My Common Law Tenancy Agreement states that the landlord can take proceedings if the rent is 7 days overdue. Is this correct?

If the landlord takes possession proceedings, does the tenant have to be notified of that fact? If so, and the tenant then pays part or all of any overdue rent, does the possession process then have to be started again from scratch?

The Common Law Tenancy Agreement states: "To allow the Landlord or the Agent (or any Superior Landlord) to enter the Premises at a reasonable time having given the Tenant at least 24 hours Notice in writing (except in the case of an Emergency) with or without workmen and with all necessary equipment for the purpose of repairing and painting the outside or of carrying out and completing any structural or other necessary or proper repairs or of examining the state and condition of the Premises and the Fixtures and Fittings". Except in case of emergency, can the landlord or his agent really enter the property against my wishes if I refuse to give my permission?

Regards,

Andrew
Expert:  Joshua replied 3 years ago.
  1. Is this a residential tenancy?
  2. How much is your annual rent?
Customer: replied 3 years ago.
Hi Joshua,

1. Yes this is a residential tenancy.
2. £1,250 pcm (£15,000 pa).

Tenancy is on a common law basis because the property includes 8 acres of land.

Regards,

Andrew
Expert:  Joshua replied 3 years ago.
thank you. The landlord must serve you with 28 days notice under the provisions of the protection against eviction act before he brings proceedings against you in the County Court for possession. There is no specific format he must use for the notice providing it is clear and providing he gives you sufficient notice as above before possession proceedings are brought.
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24527
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other UK Property Law Specialists are ready to help you
Customer: replied 3 years ago.
Hi Joshua,

Thanks for your helpful answer. As promised, I have accepted your answer and paid the standard fee and a tip for it.

To bring you up to date, the letting agents/landlord have, in my opinion, continued to act very unprofessionally in dealing with issues relating to the tenancy. Although I have every intention of paying rent that is now due, and that becomes due in the future, I plan on using the legal process to make it as time consuming and difficult as possible for the landlord to collect the rent. I also plan on issuing proceedings in the County Court to claim costs against the letting agent and reparation from the landlord.

With that in mind, I would be grateful if you will clarify the other points I raised.

1. If the landlord issues a notice of intent to begin proceedings for eviction as a result of overdue rent, if I then pay part or all of any overdue amount, does the possession process have to be started again from scratch?

2. Except in case of emergency, can the landlord or his agent really enter the property against my wishes if I refuse to give my permission?

Many thanks,

Andrew
Expert:  Joshua replied 3 years ago.
1. No it doesn;t but the court should be informed of any payments you have made.
2. No this is a breach of the landlords common law duty to give you peaceful enjoyment of the property and can be a breach of the Protection Against Eviction Act and Protection from Harassment Act
Customer: replied 3 years ago.
Sorry, I'm not clear about one thing.

If the landlord has to serve me with 28 days notice under the provisions of the protection against eviction act before he brings proceedings against me in the County Court for possession, what is the purpose of this notice if paying all of the overdue rent before the end of the 28 day period doesn't avert the court action?
Expert:  Joshua replied 3 years ago.
If you pay the arrears before the end of the 28 day period this would certainly prevent him taking action for current rent arrears. The above answer assumed that court proceedings had already been issued when you paid the same.
Customer: replied 3 years ago.
Thanks for clarifying that.

Another scenario that I am happy to pay for an answer to...

If rent is withheld and the landlord takes action in court to recover it, what happens to the deposit?

If any outstanding rent remained unpaid, and judgement was made in favour of the landlord, would the court be likely to agree an arrangement for payment?
Expert:  Joshua replied 3 years ago.
landlord is able to claim deductions from the deposit for payment of rent arrears if he obtained a court order stating that he can do so.

With a common law contractual tenancy you do not have statutory protection and your rights turnaround the provisions contained in the tenancy agreement itself. If the agreement states that you can be evicted for rent arrears then the judge would have to abide by this provision and grant a possession order. There is no guarantee whatsoever that a judge would agree the repayment schedule if the landlord himself refused such a proposal. The only safe way to avoid a possession order is to repay the arrears before the hearing otherwise you do run the risk of a judge finding against you and if the terms of the agreement allow it, granting a possession order.
Customer: replied 3 years ago.
Based on your previous comment regarding the tenancy being a common low contract:-

1. Does the 28 days written notice from the landlord of intention to take court action still apply?

2. Can I still refuse to allow the landlord or his agent access to the property, even if the contract says that I have to?
Expert:  Joshua replied 3 years ago.
  1. Yes the landlord must give you at least 28 days notice or whatever notice is provided of in the contract whichever the longer.
  2. Yes you can. Ultimately the landlord must give you quiet enjoyment of the property and he cannot insist that you give him access even if your contract says you must.
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24527
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other UK Property Law Specialists are ready to help you

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