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Joshua
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24527
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Dear XXXXX I have a dispute with my tenant (of 2 years) about

Resolved Question:

Dear XXXXX
I have a dispute with my tenant (of 2 years) about some damp which has returned in the kitchen. It wasn’t on the last property report 30/7 but she says I have refused works all year to fix it. I changed Agency which cost 4 week in time and then their contractors have not yet fixed the problem.
Oct 1 the tenant refused to pay full rent of £1195, Oct 24 (last week) she moved out and has left the house dirty with a few things to fix, as well as the garden unkempt. There is a pay as you go gas meter now installed which contravenes the tenancy agreement.
Nov 1 she is due to pay £1195 again as the final month of the lease, leaving us out of pocket for 2 month’s rent and all the cleaning and tenant damage.
The new estate agent is pushing us very hard to pay back the tenant 100% of the bond that she is requesting in return for surrender of the property, saying we should cut our losses.
The house is now vacant and her tenancy ends 30/11, the section 21 notice of possession becomes valid 06/12.
We offered reduced rent last month and she refused. We offered 1300 of the 1790 Bond to the tenant to try and cover the cost of the cleaning & things that need fixing. She refused.
Is the tenancy agreement worth the paper it is written on? Should we follow our agencies advice?
Submitted: 12 months ago.
Category: UK Property Law
Expert:  Joshua replied 12 months ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

Do you know what the cause of the damp is please - i.e. is it the result of structural problems or is it due to the tenants actions - i.e. dring clothes inside?

Customer:

Hi Joshua

Customer:

we now believe it is a leak in a pipe from the radiator under the floor. i paid for it to be investigated last Jan but the contractor just pulled out the fridge freezer and washing machine in the kitchen, and did not pull up the floor boards like I actioned with the Agency

Joshua :

Thanks. How bad is the damp? Is it throughout the whole kitchen or just in a localised area? Does it in your view make the property uninhabitable?

Customer:

It didnt happen for many months and I am not sure exactly when recently it occured again because it wasnt on the property report. The new Agency says that the tenant has a video of water coming up through the floor boards and pictures etc. we accept to have to pay for damages despite poor communication from prev agent, but we think its unfair to cost 2 months rent and 100% bond especially since she left the house in a state.

Customer:

I visited last Friday, there is nothing to see. Its the occasional flood every few months and we dont know why until we rip up the kitchen floorboards.

Customer:

Its a localized area, the property is habitable for sure.

Customer:

back in 1 h

Joshua :

Thanks.

Joshua :

Thanks. The issue of responsibility for mould can be problematic for a landlord. principally, liability is determined depending upon whether the mould on the balance of probability is being caused by environmental factors created by the tenant such as indoor drying of clothes or due to strucutral issues such as poor insulation and so on. often however, the particular difficulty as it may be a combination of the two and therefore liability can be difficult to determine. If the cause of the damp or at least part of the cause is structural as opposed to environmental factors been caused by the tenant, your liability as landlord for the property comes under two heads:

Joshua :

The first is under the Landlord and Tenant Act 1985 which places an implied term in every tenancy that the landlord must keep in repair the structure and exterior of the property. However this does not cover design faults, only a lack of repair - this is provided for in a decision handed down in Quick v Taff Ely BC.

Joshua :

However under the Environmental Protection Act 1990 a Landlord has a duty of care to provide adequate and safe conditions in their properties and under the Housing Act 2004 a significant change in methods was introduced by way of the Housing Health and Safety Rating System which shifted assessment towards health and safety impact. Dampness, mould growth and excessive cold is a major emphasis of the assessment process. There is a useful guide to the same here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/9425/150940.pdf

Joshua :

The combination of the above legislation therefore can make Landlords liable if they have failed to provide a safe and healthy environment for their tenants. However as above in order to hold you liable the tenants must show on the balance of probability that the damp is being caused by a lack of repair, or structural problem with the house rather than their own activities in the property which may be causing the damp. Steam and drying of clothes are major contributors and if this is causing the issue then it is the tenants responsibility rather than yours to resolve the matter.

Joshua :

The tenant can ask the councils environmental department to carry out a health and safety assessment of the property. They have the power to serve improvement notices on you as landlord to remedy any areas which do not come up to standard and the tenant. in addition, the tenant can sue for compensation for loss of amenity in respect of the property for any period they have suffered damp which can be shown on the balance of probability on the above test is your liability to remedy. This is normally assessed based on a percentage loss of area within the property with added weight of emphasis depending upon the importance of the area in question - i.e. if the mould was affecting 10% of the floor area of the property, the tenant may be able to seek a 10% reduction in rent for the period in question plus an additional uplift if the mould was preventing her from usefully using the kitchen as a whole. the tenant does not have the right to unilaterally leave a property however unless they can demonstrate that the property is uninhabitable which based on what you say, is not likely to be the case.

Joshua :

the tenant has liabilities and responsibilities under the tenancy agreement themselves. They do not have the right to unilaterally withhold rent and as above, they cannot unilaterally end tenancy agreement which is valid for the full term of the tenancy. If the tenant moves out prior to the end of the tenancy, the tenancy ends on the last day of the fixed term and the tenant is liable to you for rent up until that point less any reduction for loss of amenity as above. the tenant is further liable to you for any damage they cause to the property and failure to return it in the same condition they received it, accepting fair wear and tear and the cost of restoring the utility meter if there is a prohibition in the tenancy agreement against installing a prepay meter. the burden of proof is upon you to demonstrate any damage you wish to claim for on the balance of probability. The landlord will usually evidence this by reference to a professionally prepared inventory prepared both at check in and check out

Joshua :

based upon what you say, you would appear to have the basis of the claim against the tenant for rent for the full term of the tenancy together with any damage caused as above providing the latter can be evidenced. if you accept that there is mould growing at the property and that this has led to a loss of amenity in the property for the tenant, you may wish to consider a without prejudice offer as a gesture of goodwill for a percentage reduction in rent for the relevant period however, based on what you say, I suspect the tenant is unlikely to voluntarily and willingly agree to pay any significant amount of rent for the period she has not occupy the property without your applying to the County court for an order against her, however it is a requirement to try to negotiate with her prior to any court application.

Joshua :

If you do make an offer of a discount, take care to express that this is a gesture of goodwill and is not an admission of liability and that your offer has a timeframe attached to it which is not met will result in your making a claim against her in the County Court

Joshua :

if you are forced to do so, the simplest way to make a claim is by using www.moneyclaim.gov.uk.

Joshua :

Is there anything above I can clarify for you?

Customer:

Thanks

Joshua :

A pleasure.

Customer:

is www.moneyclaim.gov.uk the small claims court?

Customer:

And what about the bond and TDS? do you think we should go for this?

Joshua :

Basically it is the county court which includes the small claims court.

Customer:

or is the agency correct that we are better to let her off 2 months rent and give back the full bond to cut our losses?

Joshua :

you can use TDS's resolution service if both you and the tenant agree to do so. The difficulty however with this is that TDS can only arbitration respective the deposit they hold and based on what you say above, you may wish to claim rent on top of this. if this is the case, you will need to consider the County court instead which can include a decision in respect of the deposit. if you are successful in the County court, it is very important that you asked the judge to include on his order and order that TDS pay the deposit they are holding to you. If this is not included in the order, TDS will refuse to pay the deposit and tell you you have to go back to court to get a specific order that they are to do so which can be frustrating as it causes additional delay

Customer:

The damp in the kitchen never got to mould status, sounds like it was more of a mini flood. damp checks have been completed by experts and between these 2 floods no damp was reported. feel like its about whoever can present the best case to the TDS on this one

Joshua :

I do not think the agency correct what they are telling you based on what you have said. Certainly they offer you one option which no doubt would be both hassle and stress free but would result in you being significantly out-of-pocket. tenant cannot unilaterally decide to end the tenancy unless they can prove that the property is uninhabitable which from what you say is not the case. If this is the tenant owes you as above and there is no reason you cannot claim for the same

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Customer:

As mentioned, the tenant vacated the property before 24/10 (last week) and emailed the agency that she decided to leave.


- Once the tenancy agreement ends 30/11 does this mean that we will have automatic possession because the tenant is not residing?


- Once the notice of possession comes into effect 06/12 does this mean that we will have automatic possession because the tenant is not residing?


- Can we gain access to the property to undertake maintenance if the tenant refuses? Before and after Nov 30?


- Can we gain access to the property for new tenant viewings if she refuses? Before and after Nov 30?


 

Joshua :

Brian clarify that the agent has not agreed to her ending the tenancy early please?

Joshua :

sorry I have noticed a typo above. This should read: " may I clarify that the agent has not agreed to ending the tenancy early please on your behalf?"

Customer:

  • thanks I am checking

Joshua :

I look forward to hearing from you

Customer:

The agent has not advised the tenant anything

Joshua :

thank you. Has she also return the keys?

Customer:

Hi Joshua

Customer:

the tenant returned the key to the agency and said its the only key she has

Joshua :

Thanks

Joshua :

the return of keys is excellent evidence of an intention to surrender one's tenancy and on the basis she has done so, and vacated the property, then the tenancy will automatically come to an end at the end of the fixed period. as a landlord, you are required to mitigate any losses you seek to claim for and therefore should consider asking the tenant whether she wishes you to attempt to remarket the property to find a new tenant as soon as possible so as to potentially mitigate the amount of rent she may owe you to the end of the tenancy. if you can find a new tenant to move into the property before 30 November, then your original tenant would only you rent up to the point the new tenant moves in.

Joshua :

if you make this offer, and she does not reply, you can demonstrate that you have attempted to mitigate your losses by making the offer. If she asks you to remarket the property, you should then do so. you are entitled to claim a reasonable costs of free marketing fees - e.g. agents costs and so on to the tenant.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Customer:

The agent states the following:

Customer:

The tenant hasn’t refused us entry but until the situation has been resolved we will still have to get her permission to enter.

Customer:

The Agent will not do a check out until the end of the tenancy period on the 30th of this month.

Customer:

Is it best that i just wait and then go directly to small claims?

Joshua :

the agent is quite correct to advise you as above. If you wish to continued to charge her rent as discussed above, it follows that she still has a tendency for the property and therefore you really enter the same either having given minimum notice prescribed in the tenancy agreement or with her permission.

Customer:

The tenant is hostile and just wants her bond back so I am not sure if asking her if we can remarket the property will make a difference

Joshua :

you may be right in practice however it is important from the point of view of law because if you fail to do so, you may potentially leave yourself open to a claim by the tenant if you are seeking rent from her that you failed to mitigate your losses. If you can show that you offered to remarket the property, that claim is not open to her

Joshua :

is there anything else I can help you with on the above?

Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24527
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and 4 other UK Property Law Specialists are ready to help you

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