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Thomas
Thomas, Lawyer
Category: UK Property Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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I moved into a rented property in Dec 2012 and found that the

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I moved into a rented property in Dec 2012 and found that the upstairs neighbours' children cause excessive noise on the floorboards due to poor sound insulation.
During the viewing and prior to signing the tenancy I asked the estate agent the question "are you aware of any noise from upstairs?". They said no and I therefore moved into the property unaware of this issue.

I now know that the estate agents were indeed aware of a problem as I have been in touch with the previous tenants and discovered they had the same problem. They informed the estate agents of this back in May 2012 in writing and I have a copy of that email.

The estate agents does not know that I now have this information from the previous tenants and I emailed them again as I am trying to negotiate leaving the property asking them to confirm that they were unaware of any noise issues and they have replied in writing that they weren't.

This is clearly not the case as I have the previous tenants email to them stating there was a problem. Can I challenge that under the Consumer Protection from Unfair Trading Regulations 2008 knowing about the noise issue but failing to impart this when asked could be considered to fall under Misleading omissions ?

I am trying to leave the property but they are charging early cancellation of contract fees of £2,000 plus and saying that I need to continue paying rent until new tenants are found as my contract is for a year.

Can I claim breach of contract ?
Submitted: 1 year ago.
Category: UK Property Law
Expert:  Thomas replied 1 year ago.
Hi,

When does the fixed term of the tenancy expire please?

Tom
Customer: replied 1 year ago.

Not until 5th December 2013. It is a one year contract with a 2 month break clause at 10 months.

Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

I don’t really think that the Consumer Protection For Unfair Trading Regulations should be your primary basis for recourse here. It’s an additional way to put pressure on them by stating that you will report them and proceed with a complaint in the strongest way possible.

However, your primary recourse should be an action under contract law for misrepresentation. This is where a false statement of fact is made by one party to another and this statement then induces the other party in to the contract.

If you only entered the Contract because you were assured that the flat was free of noise and you can now prove that their statement was false because of the email indicating that they were aware of noise complaints then this would appear to fulfil the requirements of misrepresentation.

I would start by writing a letter to them referring to this misrepresentation and confirming that you would not have entered the contract had you been aware of the previous complaint or if you were honestly told about it by the agent. I would basically say that you have a contractual claim against them in the first instance and also a defence and counter claim to any action they would commence in the event that you left and they attempted to recover funds from you.

You may choose to state that if they release you of all liability under the contract and return your deposit then you will not issue a claim for contractual damages against them. If they agree to this then you can walk away.

If they do not agree then I would take your evidence to a property litigation solicitor for a consultation on the specific evidence that you have. If they consider you have grounds to claim the misrepresentation amounts to a repudiatory breach of contract (ie. a breach so serious as to deny the whole of the benefit of the contract) then you can terminate on this basis.

Additionally, in your letter you should refer to the unfair trading regulations as a additional pressure point and see where it takes you.

Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Customer: replied 1 year ago.

Hi Tom


Thank you for your information, this is really helpful. One additional question, the estate agent will not start to re market the property until I pay them £300 and sign a letter stating that I agree to the cover the landlords cost of reletting of £600 and that I will cover the rent until a new tenant is found.


In the aim to simply resolve this quickly and move, I have replied saying that I will pay the £300 so that advertising can begin but won't sign the letter whilst I am seeking legal advice. I handed my notice in, giving two months, in writing on the 17th December. Can I insist that they start to readvertise the property if i pay the £300 but without the signed letter ?


Many thanks


Sue

Expert:  Thomas replied 1 year ago.
Hi Sue,

I would state in the letter that you shall not pay any such costs because you would not have incurred these were it not for their misrepresentation.

Alternatively you can state that you will pay the £300 to remarket the property simply to proceed quickyl and that this should not be regarded as an acceptance of liability or that you will not issue a claim to recover this morning if the dispute is not resolved satisfactorily.

Please remember to rate my answer.

Kind regards.

Tom
Thomas, Lawyer
Category: UK Property Law
Satisfied Customers: 6652
Experience: BA (Hons), PgDip, Practising Solicitor
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