Counterclaim to section 8 for unreported mould?

by Readers Question

16:21 PM, 12th February 2020
About 2 months ago

Counterclaim to section 8 for unreported mould?

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Counterclaim to section 8 for unreported mould?

Help! I have taken a tenant to court (section 8) rent arrears and the court provided the tenant with a solicitor. The tenant is now claiming that the property is not fit for purpose as it has damp mould in various places ( this has never been reported to me).

The court case has now been adjourned until April. I have been and looked at the property today and yes it does have mould which I believe is caused by the tenants lifestyle, cooking with no ventilation etc.

Any advice as to what to do next?

My thoughts are to remove the mould before the court hearing, but will that be enough for me to get my property back?

Is section 8 not mandatory?

Any help would be greatly appreciated.

Pauline



Comments

Neil Patterson

16:27 PM, 12th February 2020
About 2 months ago

Please consider paying for profession assistance as this appears to be going south rapidly on a possible revenge eviction or unfit for habitation claim. >> https://www.property118.com/evicting-tenants/

Rob Crawford

17:47 PM, 12th February 2020
About 2 months ago

I agree with Neil, leave the mould but get professional opinion ref the cause. The Shelter website is actually quite helpful on this subject and defines what responsibility resides with the landlord and tenant. The FFHAct requires the tenant to complain to the landlord in writing, so not sure why your solicitor did not argue the issue. If you are confident with your property, it may be worth getting the council out to do a HHSRS assessment. This will capture all and if ok, will provide little opportunity for the tenant to add other things! This would also be a good professional third party opinion that can be relied on in court.

Possession Friend

10:22 AM, 13th February 2020
About 2 months ago

I agree if one of our clients was in your position, we would advise them to urgently instruct a Damp specialist.
We would advise them specifically in the choice of ' specialist ' as it's important the report they provide includes what the Landlord requires to support their case.
We currently have a similar case ongoing, awaiting a hearing.

WP

10:36 AM, 13th February 2020
About 2 months ago

been here! nightmare!

My advice is if you are confident that mould caused by tenant lack of ventilation etc, then contact Council get them to 1. Confirm in writing that they have never had any complaints raised directly from this tenant at this property at any time before you issued a Section 8 (evidence they only bothered to do this AFTER they were issued with an eviction notice. 2. Ask council to come and do a HSSRS . This not only shows that you are (a) being proactive to 'complaint', (b) asking for an indep view and (c) willing to act on recommendations that they suggest. If you have to go to a hearing then arm yourself with your landlord checks info showing nothing seen at checks and not mentioned by tenant etc including photos. This is a classic - you are going to evict me and I;'m going to try and hold out tactic by (probably) a bad tenant. Check if the court appointed solicitor has applied for Legal Aid for the client too. They need to show just cause that there is a cost/benefit for this. For a 'counterclaim' against you for mould not being dealt with they HAVE to provide evidence of such. Emphasis is on them to show you haven't done something when reported to you, and you didn't deal with it.
Good Luck!

Ivor Bailey

10:45 AM, 13th February 2020
About 2 months ago

Black spot mould is a condensation issue, caused by lack of ventilation. This is usually described as “damp”.
Always difficult to solve as tenants never want to take responsibility.
This also shows weakness of S8 notice.
This is discretionary. However, the tenant is not legally able to withhold rent for repair issues, but you are still at the mercy of the judge at the time.
I always serve S21 notice.
If government change this, it’s going to cause major problems.

Mike

12:32 PM, 13th February 2020
About 2 months ago

Causes of damp : If you have a faulty roof or gutters or plumbing leaks, this could cause damp regardless of how a tenant's life style is, on the other hand tenants lifestyle can cause this problem not just in bathrooms or kitchens but also in living accomodation and living rooms, I have seen this as my tenant was not heating the house properly as he could not afford it. He blamed it on the way my property is constructed, I disagreed with him, as i never had that problem before with any of my other tenants, I challenged him to produce his gas heating bills, guilty as he was he refused to produce them, you could work out from the energy bills if heating was being used properly. Other causes can be if there are no leaks, due to lack of cross ventilation, lack of air bricks, or extractor fans or adequate opening windows and vents, but most of all it is the living style of tenants, like taking a long bath or a shower and then not opening windows or putting on heating to dry up the moisture, drying clothes indoors especially in winter months, using radiators as driers, even if you gave them a drier, they would stop using it once they realise how much energy they use, but yes 9 out of 10 its the tenants negligence, when a small patch of mould starts they don't tackle it straight away, it will spread to other areas like Australian bush fires.

I now doubt if his tenant would allow you to conduct repairs as the case is in progress, he would not want you to go there and wipe clean any evidence, so best defence would be to blame the tenant for not letting you know if and when any mould issues arose in writing, or even verbally, and ask tenants to produce his energy bills to see how much he spent on heating bills during this winter.

LILIA FOUNTAIN

13:04 PM, 13th February 2020
About 2 months ago

Hi, your best power is information, read the act housing 2004, the landlord and tenant act.
Any rubbish or damage caused by tenant is he/her responsibility, if the tenant has not evidence in writing that he asked you to deal with this problem and that your property has kept clean, then you have not issues. The tenant lawyer has to proof that you were aware about it.
I bought a property about 6 months ago and sold it just now, l was in court accused of illegal eviction, but l showed writing evidence and l demanded proper evidence in court.
I did represent my self, do not allow the council or lawyer to terrified, read carefully and answer using legal information, you can copy and paste from government web page.
This was my first and only property but sadly l decided l will not loss my health fighting the unfairness of the law against landlords.

reader

13:04 PM, 13th February 2020
About 2 months ago

This is why S21 should not be abolished. False defences that delay proceedings will become the norm as will the expense of landlord representation at court. Lawyers win, tenants win, landlords have a nightmare. Yet again the government consultation avoids the issue. So now every tenant has to have tenancy insurance to protect the landlord in these situations.

Pauline

14:01 PM, 13th February 2020
About 2 months ago

Thank you all for your comments, its given me food for thought but clear I need to get an expert opinion.

WP

16:24 PM, 13th February 2020
About 2 months ago

Reply to the comment left by Mike at 13/02/2020 - 12:32
totally agree. As the LL you need to make sure you make it clear to ventilate etc and have everything written down about what advice you have given at any point in the tenancy. While the emphasis is on the tenant to show that they have raised and issue and you have not dealt with it, you can also be proactive in showing that at landlord checks you have told them not to dry clothes on radiators and to open windows after showering if you see condensation etc at the time. Take photos! This will give a timeline of info that shows you were highlighting the issues to the tenant as you saw them in advance of them then complaining (at the point of eviction). It shows YOU took the lead. If they chose not to take advice and change their ways then this is the outcome and you are not to be held to account.

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