Being sued by tenant that hadn’t even moved in?

by Readers Question

10:28 AM, 6th January 2016
About 3 years ago

Being sued by tenant that hadn’t even moved in?

Make Text Bigger
Being sued by tenant that hadn’t even moved in?

Grateful for some advice on a situation that has occurred. I use a managing agent to manage a property about an hour from me. Its a studio flat. The previous tenant was evicted due to rent arrears. Luckily I had RGI and eventually they paid out and managed the legal aspect.pickle

I had to attend court to get possession. This was in Feb 2015 and since September 2015 the property has been on the market with the same agent. They then found a tenant and did the referencing. I asked for a guarantor on top of the passed reference, as the tenant lived with his parents and his financial situation did not sit comfortably with me, despite passing referencing. He produced a guarantor (his mother) and so I agreed to allow the agency to take him on as a Tenant and move him in (quickly within 4 days as he was in a rush).

Again I was not happy about this “rush to move in” again it sent alarm bells ringing in me, but still I agreed, subsequent to the agents reassurance that they felt sure about this tenant. Anyway so the tenant agreed to meet the letting agents local representative to be moved in. This is where the problems started.

The Monday after the move in I received an email from the agent for the following:

I arranged to meet your colleague, Letting agent representative, at the above property on Friday 5 November 2015 at 7.30pm to collect the keys and conduct check-in of the property. Letting agent representative was running late and did not meet me until 9pm, by which time it was too late to move in.

When I arrived at the property on the following day, I found it to have a single bed, some chests of drawers and boxes of items that did not belong to me in it. I understood that the flat would be unfurnished (apart from oven, fridge and washing machine). Upon further inspection, I discovered the following:

1. The repairs to the wet wall in the bathroom (caused by the shower screen being ill-fitting and not fit for purpose (and leaking water down the side of the bath when someone takes a shower) had not been carried out as promised by letting agent representative when she originally showed me the property.

2. The whole property had not been professionally cleaned, as letting agent representative was awaiting confirmation from yourself for this.

3. The front door frame appeared to have been forced, creating a crack in the door frame thus rendering the lock not secure.

4. The front door was, in fact, not a regulation fire door.

5. The electricity meter was showing £37 in debt and because of this there can be no confirmation that the services are all connected. (Clause 4.1.3)

On the basis of all of the above, I will not be taking up tenancy of the property. I now have the very serious problem of incurring extra rental costs because I am now in temporary accommodation. I have sought legal advice and require my one month’s advance rent and deposit paid back to me immediately as the landlord has not performed his part of the agreement and therefore ALL contracts that have been signed to do with this property should be considered null and void. I request your immediate assurance by return email that:

a) The deposit and one month’s advance rent held by Letting agent are returned to me immediately

b) Because of the above, the tenancy will not commence as the landlord/agent have not complied with the Tenancy Agreement.

I am extremely disappointed that Letting Agent has not put the property into the agreed condition and indeed a tenantable condition. I confirm I have already taken solicitor’s advice.

ADDITIONALLY: There was no evidence of a current Gas Safety Cert’ and cannot be one as the hob is in breach of current Gas Safety Regulations and should be considered IMMEDIATELY DANGEROUS being installed without the MANDATORY safety clearances from combustable materials. There was not a copy of a current Energy Performance Certificate and no Schedule of Condition has been agreed prior to taking tenancy of the property.

PLEASE NOTE THAT I HAVE NOT TAKEN ON THE PROPERTY AS REFERRED TO IN CLAUSE 2.7.1 OF THE TENANCY AGREEMENT AND RETAIN ALL RIGHTS TO CANCEL THE AGREEMENT UNDER THE DISTANCE SELLING REGULATIONS AND IN ADDITION THE PROVISION OF THE SERVICE HAS NOT COMMENCED AS REFERRED TO IN CLAUSE 8.4 AND THE GUARANTOR IS NOT THEREBY BOUND BY THE AGREEMENT.

I would appreciate an urgent response to this email by 13.00hrs today to the above email address.

This was the first I had heard of any of this and therefore I wasn’t happy at my agent, but they said they had been trying to contact me regarding cleaning and they could get the works done etc. I would have been happy to get these works done, but did not know about them when the agency agreed them verbally with the tenant. Also I explained there was a valid gas safe certificate issued only a few months back.

Further developments occurred subsequent to this whereby my agent suggested I release the tenant from the tenancy, but I have categorically said no to this as I believe that I will get the works done while the tenant is in occupation. This is where it got even uglier and basically the tenant’s guarantor said if I did not release him and the tenant from the tenancy he would report me to environmental health and HSE as he had a duty to do so.

As a result EH visited my flat. At the flat the EH officer found a yellow gas sticker ‘DO NOT USE’ on the hob. This was put on by the tenants guarantor who is a gas safe engineer. Also there was no working gas or electricity, as well as other faults of no smoke alarm, cracked door frame, blocked kitchen sink, water leak to shower screen, no cooking facilities.’

They served me an improvement notice which says there was no gas or electricity at the property. The reason for this lack of power was that there was a negative credit balance on the property (which was not dealt with by the agent) electricity meter.

I tried to explain to them the flat electricity credit meter needed topping up to get the gas and electricity working again and I was happy to pay the cost of getting this done and accepted the other works and would do them. However this was the first I was hearing about all of this. Also I explained to them that this complaint was made due to me not releasing the tenant from the agreement.

The RGI insurance for this tenant has not paid out due to not being at the property. The tenant has not paid rent for the last 2 months having paid the first month and also the 6 weeks deposit.

Ive since got a contractor to carry out most of the works (including new gas hob and certificate) all of which I am more than happy to carry out. However it seems the tenant changed his mind about moving in and moved back home and is now trying to use these issues as a way of nullifying the agreement.

Sorry for the long post but can someone advise me on what else they think I should do?

Thanks for any input

Shuey



Comments

Gary Dully

11:06 AM, 6th January 2016
About 3 years ago

I would suggest that you get out of that arrangement ASAP and change letting agents.

For the future, when a letting agent tells you they have been trying to get hold of you, translate that into, blah,blah.

Do you seriously want a tenant that doesn't want to live there?

Do you want to be a "Rogue Landlord"?

Let the tenant go, get the repairs done, sack your letting agent and get a new one that doesn't do hand overs after the watershed on TV.

See if you can get a written agreement that you can have your property back with no further litigation brought against you, if you agree to a notional £150 towards your tenants out of pocket expenses.

Steve From Leicester

11:17 AM, 6th January 2016
About 3 years ago

I agree with Gary's advice (above) and also agree that based on what has been said the letting agent hasn't covered themselves in glory.

However, just to give a balance, I'm an agent and occasionally we have landlords instructing us to let their property, making all sorts of promises about carrying out essential works, then completely disappearing off the radar leaving us to deal with a very angry tenant.

I'm certainly not saying that this is what happened to Shuey but a small minority of landlords do conveniently forget that ultimately THEY are responsible for their property.

Sunny Rsa

11:23 AM, 6th January 2016
About 3 years ago

Reply to the comment left by "Gary Dully" at "06/01/2016 - 11:06":

I'm inclined to agree with Gary: Get out while you can. Things only turn nasty later on when the solicitors get involve.

N S

12:08 PM, 6th January 2016
About 3 years ago

I find it extraordinary that you need to ask. Give the poor bloke back his money and compensation for stuffing him around so much. The tenant hasn't capriciously changed his mind - you didn't provide him with safe, clean and decent accommodation.

You aren't disputing that the flat was dirty, had someone else's stuff in it, didn't have electricity or gas (!?), was not safe (ie no smoke alarm, fire door or gas certificate provided - all of which are necessary to protect the tenant from the small but actual risk of, you know, dying) and hadn't been repaired. Also a blocked sink and no cooking facilities. Seriously, do you expect the tenant to move into it the place like that? Would you?

You say that the complaint was made to EH because you would not release the tenant from the agreement - but the reason the tenant wanted to be released from the agreement was because of all the problems! Which the inspector found to be true! You have not provided any evidence even on your own account that the tenant wanted to terminate for any reason other than that you provided substandard and unsafe accommodation.

Your defence appears to be that you got the works done and you just weren't told about them. Two obvious points on that - if your letting agent is crap then that is annoying for you - but absolutely no defence to any complaint that the tenant might have. It is your responsibility to provide clean and safe accommodation from the first second of the tenancy. If the letting agent didn't do what they should have - take it up with them. Secondly - you were aware (according to you) of the problems before the tenant reported you to EH but clearly didn't run around to fix the problems or they wouldn't have had to report you (so it was not actually correct for you to tell the EH it was the first time you were hearing about the issues from them - because according to your own account you were already aware of them....)Frankly I think that they were correct to do so. Clearing electricity metres, cleaning (!?), basic safety requirements are not something that can be done while the tenant is "in occupation" - they are a requirement from day one.

Have you thought about what it was like for this poor tenant? He arrived at his new home with his belongings to find it dirty and not safe to move into so he had to find somewhere else to go and then has had some negligent landlord wanting him to keep paying and not giving him back his money.

If you still can't understand why you are so utterly in the wrong think about it like this - if you booked a hotel in another country and you turned up and it was dirty, someone else's stuff was still in the room, there was a boiler that you weren't sure was safe and the bathroom sink was blocked would you check in and expect to pay? Of course you wouldn't. You would be outraged. If the owner told you that it wasn't their fault because the hotel manager should have done those things would you say oh okay, fair enough, not your fault I'll pay then? Of course not. You would be even more outraged. And if the hotel owner then said and by the way you've booked in for the next 6 months and you have to keep paying for the whole 6 months - and the room will be cleaned, the bathroom unblocked, the room made safe etc in due course while you're "in occupation" I can't imagine that you'd say oh well fair enough then, I trust you entirely to provide me with quality accommodation for the next 6 months so I'll live in mess with no safety standards until you get around to it and of course I'll pay you. Of course you wouldn't...

I'm having a bit of a rant about this because I spend a lot of time explaining to people why buy-to-let is not some evil and unethical practice and providing someone with safe housing is a valuable service and then landlords like this pop up and it makes it a very difficult argument to run. I don't agree with the changes being made discouraging the ownership of buy-to-let, but I do think that there needs to be much stronger regulation and avenues of recourse for tenants to protect about these exact same scenarios. Sure tenants try it on sometimes too - but I am often shocked by how bad some landlords can be. All landlords of course would bear the greater costs of greater regulation but frankly I'd be happy to pay more to stop this kind of nonsense going on.

Robert Rivers

13:15 PM, 6th January 2016
About 3 years ago

No Brainer, the tenant has given you the way out, take it, digging your heals in will inevitably cost you!!!!

shuey

13:28 PM, 6th January 2016
About 3 years ago

thanks for comments so far. I just want to get the works resolved and present the flat to the same level as my other ones. I genuinely did not know about these issues. I would not have let him move in if I had known I should point out that none of my other properties have had this or any such problem and I have excellent long term tenants (3 years plus) in all of them where I self- manage.

Also just to advise , the RGI company and the council have said the flat is currently suitable for occupation , despite the improvements required.

Additionally my contractor who went to pick up the keys said the guarantor said the real reason was that the tenant had basically had an argument with his parents and move out of the family house, decided to look for somewhere to live to prove to them he could do it, got a basic starter studio flat, tried to move in and then changed his mind as it was much nicer at home.

I am a registered RLA landlord so am well aware of my obligations and to provide good accomodation to tenants (helps with getting good quality tenants). Apparently legally there is a risk he could decide to move back in and claim illegal eviction, unless I serve proper notices via the RGI company.

Sunny Rsa

14:16 PM, 6th January 2016
About 3 years ago

Reply to the comment left by " " at "06/01/2016 - 13:28":

Don't get bogged down with litigation. Avoid litigation at all cost. Things get very nasty later on despite the fact that all wrong doings were through no fault of yours. I have tried to sue a tenant before and I was £30k out of pocket with rent arrears over a period of 18 months and legal expenses. Eventually had to reach an out of court settlement since the tenant were already pennyless and I needed to get my property back at all cost. I have already replied to several forums before suggesting that we ought not make our own lives difficult with difficult tenants.

N S

14:18 PM, 6th January 2016
About 3 years ago

Reply to the comment left by " " at "06/01/2016 - 13:28":

Mate - you still don't seem to be taking responsibility here. By your own account the EH found that "there was no working gas or electricity, as well as other faults of no smoke alarm, cracked door frame, blocked kitchen sink, water leak to shower screen, no cooking facilities.’ The fact that there was no working gas or electricity frankly is grounds enough to not move into a flat - let alone it not being cleared out or cleaned.

Your other properties might be in great order - you might be well aware of your obligations - but it seems pretty clear unless I'm missing something that you didn't fulfil these obligations in this case. The fact that you didn't know about the problems means zip in terms of the tenants right to terminate for failure to provide adequate standards. The fact that your letting agent was not good is entirely your problem not your tenants.

The flat might be suitable NOW to live - but it clearly wasn't when the tenant went to move in. And that's the relevant time. The tenant might have other reasons why he now doesn't want to move in - but again its no surprise he thought it was nicer at home if the flat was filthy with no electricity and other people's junk....I think that all of the things that you have described about the flat's condition are entirely valid "real reasons". If the flat had actually been as it should perhaps the tenant would have been entirely happy to have moved out of his parents - the point is that you'll never know. The tenant made an entirely reasonable decision to not move into substandard accommodation which you can't seriously think was not a factor in the decision.

You are trying to make it sound like it was some feckless and irresponsible young person who's trying you rip you off. I think it's much more like you have treated some young person pretty poorly by failing to ensure that the accommodation you said that you would provide was clean and safe and in good repair. Frankly I think it's very irresponsible to not make sure that your letting agents had the property cleaned, with a smoke detector etc and in good order.

N S

14:20 PM, 6th January 2016
About 3 years ago

Reply to the comment left by "Sunny Rsa" at "06/01/2016 - 14:16":

How on earth is this "no fault" of the landlords?? The flat was not cleaned, had someone else's stuff in it, no gas or electricity, no smoke alarm, blocked sink, no cooking facilities and no repairs to the bathroom.

shuey

14:32 PM, 6th January 2016
About 3 years ago

the gas and electricity issue was a top up issue as there was a negative credit balance. However I need to move forward on this and accept that ultimately I need to get these issues resolved and I am at fault and responsible for my agent and for not keeping a closer eye on things and letting my agent manage this.

Anyway Ive taken on board peoples comments and learnt from this experience. Thanks for all input

🙂

1 2

Leave Comments

Please Log-In OR Become a member to reply to comments or subscribe to new comment notifications.

Forgotten your password?

OR

BECOME A MEMBER

Millennials stumble on the Property Ladder

The Landlords Union

Become a Member, it's FREE

Our mission is to facilitate the sharing of best practice amongst UK landlords, tenants and letting agents

Learn More