UK Property Law

Get UK Property Law Questions Answered by Experts

Ask an Expert,
Get an Answer ASAP!

UK Property Law
This answer was rated:

Dear XXXXX I have a dispute with my tenant (of 2 years) about

Dear XXXXX I have a dispute...
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?
Show More
Show Less
Ask Your Own UK Property Law Question
Answered in 11 minutes by:
10/28/2013
Joshua
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 26,070
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Verified

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
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 26,070
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Verified
Joshua and 87 other UK Property Law Specialists are ready to help you
Ask your own question now
Ask Joshua Your Own Question
Joshua
Joshua
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 26,070
26,070 Satisfied Customers
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice

Joshua is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks!

RickLeeds, UK

I did not know a French Law service existed and I was very impressed with the speed of reply --- very professional. Many thanks!

Ms. BakerAlfafar, Spain

Thank you so much for your help. Your answers were really useful and came back so quickly. Great!

MaggieUSA

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!!

AlexLos Angeles, CA

Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult.

GPHesperia, CA

I couldn't be more satisfied! This is the site I will always come to when I need a second opinion.

JustinKernersville, NC

< Previous | Next >

Meet the Experts:

Aston Lawyer

Aston Lawyer

Property Solicitor

1,734 satisfied customers

LLB(HONS) 23 years of experience in dealing with Conveyancing and Property Law

Thomas

Thomas

Lawyer

1,336 satisfied customers

BA (Hons), PgDip, Practising Solicitor

Clare

Clare

Solicitor

1,322 satisfied customers

25 years exeperience

INC

INC

Solicitor-Advocate

812 satisfied customers

LL.B, Pg.Dip, LL.M, M.B.A (Pending), Solicitor-Advocate. UK Practising Certificate issued by SRA., DIFC Courts Registered (Dubai)

Alex J.

Alex J.

Law

447 satisfied customers

LPC, 2 Years Conveyancing

Buachaill

Buachaill

Barrister

282 satisfied customers

Barrister 17 years experience

Matt J

Matt J

Solicitor

216 satisfied customers

LLB(HONS)

< Previous | Next >

Related UK Property Law Questions
I am registered owner of a property with a mortgage but with
I am registered owner of a property with a mortgage but with manipulation my ex inlaws managed to get signature on trust deeds giving them the complete financial benefits from that property. Recently … read more
Clare
Clare
Solicitor
Bachelor's Degree
1,322 satisfied customers
Denning, with my 1/3/2012 accepted question. Original
Dear Law Denning, Please follow up with my 1/3/2012 accepted question. Original Question URL: http://www.justanswer.com/uk-property-law/61pnu-concerned-electrics-flat-ask.html… read more
Law Denning
Law Denning
Solicitor
PGDLaw
7,641 satisfied customers
My neighbour has a right of way over my drive so that she
My neighbour has a right of way over my drive so that she could, if she dismantles a moveable fence at the top of the drive, enter her garden that way. She has not exercised that right in about 10 yea… read more
Jamie-Law
Jamie-Law
4,945 satisfied customers
I would like to know if a property classified as an HMO can
I would like to know if a property classified as an HMO can be deemed to be in breach of the house;s covenant that it must be a 'single private dwelling house' … read more
Jamie-Law
Jamie-Law
4,945 satisfied customers
Follow up with my 2/20/2012 3:50:39 PM UTC accepted
Dear Jomo1972, Please follow up with my 2/20/2012 3:50:39 PM UTC accepted question. Original Question URL: http://www.justanswer.com/uk-property-law/69zf9-i-m-american-expat-renting-house-london-i-ve.… read more
Jo C.
Jo C.
Barrister
Master\u0027s Degree
37,470 satisfied customers
My tenants and I are defendants in a small court court case
Dear FE Smith My tenants and I are defendants in a small court court case to do with a right of way. The first hearing determined the temporary agreement in relation to the right of way, which is to c… read more
Jamie-Law
Jamie-Law
4,945 satisfied customers
I'm about to file an application to adjourn the date of a
I'm about to file an application to adjourn the date of a preliminary hearing regarding a flea infestation claim I'm defending. whilst filing the application I also would like to present my defense ca… read more
Jamie-Law
Jamie-Law
4,945 satisfied customers
I'm a tenant in common with my brother on a UK property. A
Hi, i'm a tenant in common with my brother on a UK property. A number of years ago my parents were in financial difficulties and I stepped into save the family home with my elder brother. I did not li… read more
Law Denning
Law Denning
Solicitor
PGDLaw
7,641 satisfied customers
I want to change the ownership proportion in our UK property
Hello, I want to change the ownership proportion in our UK property Deed of Trust. All parties agree to the change. What is the best (common) way to do this? Do you revoke the existing Deed of Trust a… read more
Clare
Clare
Solicitor
Bachelor's Degree
1,322 satisfied customers
I recently sent this reply to a question that was answered
Hi, I recently sent this reply to a question that was answered but I haven't heard anything and it's been a week. Not sure if it has been received and wondering if someone else can helpI partly own a … read more
Clare
Clare
Solicitor
Bachelor's Degree
1,322 satisfied customers
I am renting via an agency and they have been really bad at
hi, I am renting via an agency and they have been really bad at repairing things like the boiler, the windows, installing a fire alarm etc.. it took them 7 months (from Oct 2008 to May 2009) and final… read more
DR Lawyer
DR Lawyer
BA (HONS) Pgdl Pgdlp
2,318 satisfied customers
If a UK property transaction is less valued at less than
If a UK property transaction is less valued at less than 125,000 then there is no SDLT to pay. However, does an SDLT form need to be filed with the Inland Revenue… read more
Aston Lawyer
Aston Lawyer
Property Solicitor
LLB (HONS)
1,734 satisfied customers
I am currently residing in the UK. I have 2 Plots (Property
Hello,I am currently residing in the UK. I have 2 Plots (Property Land) in Pakistan on my name which were bought by my Father and Sister for me around 5 years ago. I have both Plots (Property Land) on… read more
Nick H
Nick H
LLB
115 satisfied customers
I have lived on a peice of land owned by my grandfather for
I have lived on a peice of land owned by my grandfather for 4 years, after he asked me to move on, in a mobile home and start a plant nursery business. I would like to know what rights I have if he as… read more
Mike GS
Mike GS
35 years experience English Solicit
1,198 satisfied customers
I wanted to know if I need to complete the certificate of
I wanted to know if I need to complete the certificate of service on the N5B form. I am a private landlord applying for possession order on section 21 grounds.Also, I served the section 21 to my tenan… read more
JimLawyer
JimLawyer
GD Law
72 satisfied customers
Team, I have had my house repossessed it was in a joint
Hi team, I have had my house repossessed it was in a joint Mortgage with my estranged wife. We have been separated over 5 years. The house has been sold and there is Apprx £30,000 left to be split wit… read more
Clare
Clare
Solicitor
Bachelor's Degree
1,322 satisfied customers
Subject: Neighbour wants to install gas flue inspection
Subject: Neighbour wants to install gas flue inspection hatches in my bedroom Hello Hope you are well. I hope you can help me out with a query that I have, I own a flat which is part of a criss-cross … read more
Jamie-Law
Jamie-Law
4,945 satisfied customers
I was in a process of purchasimg a property.paid the
hi. I was in a process of purchasimg a property.paid the deposit. then recieved an email from my solicitor to release more funds. which I did. then another that the fund was returned. and pay more mon… read more
JG_Legal
JG_Legal
Barrister
Legal Practice Course
36 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x