Taking a Tenant to Court Over Condensation

by Readers Question

15:09 PM, 2nd February 2013
About 8 years ago

Taking a Tenant to Court Over Condensation

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Taking a Tenant to Court Over Condensation

Taking a Tenant to Court Over CondensationI have a court date coming up in April as I am taking my ex tenant to court over damage caused to the property by condensation. Does anyone have any experience with claiming for condensation as this is my first and hopefully my last court case?

The tenant and his wife was with me for 5 years in a 2bed 2bath ground floor flat. He also had 2 children in this time and allowed his parents from India to live in the property for long periods of time with out asking me. 

He repeatedly complained to me about condensation and after several inspections it was clear this was due to them not ventilating the property i.e. opening windows, wet clothes on radiators etc.

I educated him on this various times but they did not listen. The flat looked like it was raining inside all down the walls, also the property looked like it hadn’t been cleaned ever through out the 5 years. Mould starting growing up the walls on the carpet and woodwork and ceilings. The tenant asked me to sort this out so I thought right fine OK. I got 4 quotes all around 3k to sort out and sent them to the tenant and refereed to the AST saying if he wanted it sorted out he would have to foot the bill. He then refused and gave me notice to vacate. I then had to pay the 3k to sort the property out so I could re let it, which meant the property was empty for 1 month whilst I got it done. His deposit was £1,650 and protected so the TDS have that now because we are in dispute and he owes me £1,350 on top totaling 3k.

In the AST it says the tenant is responsible for damage caused by condensation and I have a survey report that proves it is damage caused by condensation which was caused by “tenants lifestyle”. He claims he gave me the property back in the same condition as it was when he moved in which is clearly a lie as it was uninhabitable when he left it in the state he did. I have 60 photos of the damage but I have no photos of when he moved in.
I do have an inventory saying everything was in good condition but he never signed it. However, I do have an email from him when he vacated where he does refer to the inventory in the email so he cant say there isn’t one because he’s referred to it.

There was an extractor fan in the en suite which was broken for 12 months and he also blames me for this damage, but this was never reported to me in writing and when it was eventually reported to me in person I had it replaced within 2 weeks.

Is it possible that the judge might pass judgement on this case based on the evidence and our defence that we have both submitted without us attending the court?

What do you think?

I’d really appreciate any feedback good or bad as I’m new to the court thing and I could really do with my 3k back!

Thanks Rob.

Comments

15:14 PM, 3rd February 2013
About 8 years ago

The lack of a proper signed "Schedule of Condition & Inventory of the Landlord's Fixtures & Fittings" taken at the start of the tenancy will be a serious problem for you. You may have to put it down to experience and make sure you have a schedule in place next time around. You are under a duty to respond to defects within a "reasonable timescale depending on the circumstances", it was clearly in your interests to have the extractor repaired or replaced promptly, so two weeks may be interpreted as unreasonable in the circumstances.

Mary Latham

18:29 PM, 3rd February 2013
About 8 years ago

It has all been said but Sams post makes some very important points. Landlords often take tenants from overseas and we need to understand their culture and lifestyle. We cannot expect people to change to fit in with the terms and conditions of an AST - it won't happen. Every time we let a property we take a risk with our valuable investments and we MUST assess the risk before we go rushing in. I agree with Sam people from overseas do have long term visitors and this needs to be managed. Some people are used to having cheap labour and most of their lives have not had to take care of a home or even themselves in some cases - these people do not make good tenants, I've been there, they have no idea how to clean beause "the fairies" have always taken care of that back home.
Wall to wall washing is another cultural issue, I've been there too, and the amount of moisture generated will cause a problem in some properties. We cannot expect people to open windows in winter or leave them open while they are away from home and many tenant groups simply do not ever open windows. Cooking is another issue in some cultures food is left to boil away for hours and this causes a lot of steam, others splash grease up the walls, some use heavy pots that murder ceramic hobs. We need to work around these or not to take tenants who have lifestyles that we cannot accept.
I don't think that you will win either with the TDS or in court bause the onus of proof is with you and you have no documentary evidence, the deposit is the tenants money and a landlord must prove that there is good reason to give it to him rather than return it to the tenant - but I hope to be proven wrong, please let us know.
One question what is the EPC rating of the property? If it is less than a D you probably need to look at the insulation, where condensation is settling on walls rather than windows it usually means no cavity wall insulation/exterior wall insulation. In a property where the walls are well insulated the condensation will roll down the windows rather than walls.
I fit trickle vents in all my windows and humidity controlled extractors in kitchens and bathrooms.I have had my Victorian terraces internally clad and cavities filled where there are cavities, it has been some time since I had to deal woth mould issues.
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2:52 AM, 4th February 2013
About 8 years ago

Due to lack of documentation to prove the condition of the property at the inception of tenancy, the wording is unlikely to be favourable to the landlord. It would be better to negotiate a settlement without going through court. I always get a professional report made by the letting agent, before renewing a tenancy. A third party's report could be used as an evidence.

John MacAlevey

9:34 AM, 4th February 2013
About 8 years ago

It would be a excellent test case if you were to win in the Small Coutrs. Condensation (ie tenant `lifestyle` errors) is the bane of property owners lives. Assuming you have been proactive to date by supplying you local authorities advice notes on the topic (supposedly independant) you should be able to prove negligent tenant lifestyle. As always, it depends upon the mood of the judge.

Rob

14:37 PM, 4th February 2013
About 8 years ago

Hi all interesting and help full comments from everyone much appreciated. I do agree with some especially comments about making sure the inventory is signed (won't do that again) I don't think it matters what country the tenant is from they should still abide by our law and the rules set out in the ast. The property was only 2years old when they moved as I bought it from new so there is nothing structurally wrong with building there was no condensation when they moved in and there is none now they have moved out only problems were when they lived there. I also own the flat next door and no problems there. As to expect there family to stay I don't agree that would be 6 people in a 2bed flat which is overcrowded (not allowed without my permission as per the ast) anyway there are a lot of ifs and buts and I think it will be up to the judge on the day so ill keep you all informed of the outcome off April 12th. I have also sent the court a letter with photographic evidence that the tenant has lied in his written defense to the court so I don't think any judge will take too kindly to that!

17:42 PM, 4th February 2013
About 8 years ago

I spend a lot of time trying to impress on landlords just how important having a good independent is. It is such a shame when people have to go through all the trauma and exspense of a dispute. http://www.propertyinventorypeople.co.uk

Rob

19:47 PM, 4th February 2013
About 8 years ago

Hi, Thanks for your comments I'm not overly confident myself and I dont no exactly what evidence the judge will be looking for, i assumed the survey would be good enough as it says the damage is down to
condensation which is the fault of the tenant and in the AST is says condensation is down to the tenant. Anyway my solicitor prepared the court claim for me which is below. I hope its informative to some other landlords. The tenant did respond to the court claim with his defence which was mostly a pack of lies but what was interesting was that he didn't actually dispute anything I've said, just that the condensation was my fault not his. I will post back the results on April 12th!!

IN THE XXXXXX COUNTY COURT

CLAIM NO.

BETWEEN

RobXX XXX

Claimant

And

Mr XXX XXX

Mrs XXX XXX

Defendants
____________________________

PARTICULARS OF CLAIM
____________________________

1. The Claimant is the owner of the property known as Flat 2 XXX XXXX XXX XX Berkshire XXX XXX.

2. The Defendants were the Tenants of as Flat 2 XXX XXXX XX XXX Berkshire XXX XXX.

3. By a Tenancy Agreement dated 24th November 2007 the Tenants agreed to let the property from the Defendant under an Assured Shorthold Tenancy Agreement and the terms and conditions therein (Exhibit 1)

4. The terms of the written Agreement expressly state that the Defendants would keep the property clean and tidy in good tenantable condition repair and decorative order (reasonable wear and tear accepted), that they would undertake repairs or decoration and that they would use the property in a tenant-like manner.

5. The written Agreement also expressly stated that they would keep the property sufficiently well aired and warmed to avoid build-up of condensation and prevent mildew growth and not to block ventilators.

6. Furthermore, that the Defendants would yield up the property at the end of the tenancy in the same good clean state and condition as it was in the beginning of the tenancy and make good, pay for
the repair of, or replace all such items of fixtures, fittings, furniture and effects as shall be broken, lost, damaged or destroyed during the tenancy (reasonable wear and tear and damage for which the
landlord has agreed to insure excepted)

7. To pay for the washing (including ironing or pressing) of all the linen and the cleaning were appropriate of all blankets, bedding and curtains which have been soiled during the tenancy and to clean all carpets at the end of the tenancy and at least every twelve months during the tenancy.

8. The property had been left unventilated and not cleaned for what appeared to have been the duration of the Defendants Tenancy.

9. The tenancy agreement was between Mr XXX XXXX and his wife Mrs XXX XXXX however during there tenancy they had 2 children and on several occasions when the Claimant visited the property it appeared that the Defendants parents were also living in the property which would total 6 people residing in a 2 Bedroom 2 Bathroom Apartment.

10. On several occasions when the Claimant visited the property and witnessed the overcrowding as well as other occasions the Defendant Mrs XXX XXXX would be in the kitchen cooking Indian style food in large
Catering size pots, while this was happening the Claimant noticed that not only was the heating on but all off the windows including the kitchen window was closed and there were clothes drying on radiators which was resulting in an excessive amount of condensation running down the inside of the windows in not just the kitchen but also the lounge and bedrooms. The defendants had also acquired an infestation of lice in the master bedroom that had eaten there way through part of the bedroom carpet. The defendants agreed to pay the bill for a pest controller to attend.

11. On 27/06/2012 a surveyor from XXXXXXXXXXXXXXXXXX visited the property on the request of the Claimant to determine and clarify the cause of the damage suffered to the property and it was agreed that the damage and excessive condensation was indeed caused by the Tenants lifestyle. The surveyor confirmed there was not any damp in the property nor were there any signs of any leakage under the concrete floors as suggested by the Defendants.

12. The Claimants received quotations from 4 contractors, with Kenny décor being the cheapest for work to reinstate the property to its former state. (Marked Exhibit B attached)

13. On 01/07/2012 The claimant sent his findings to the defendant residing in the property explaining to the defendant that it was the defendant’s responsibility under the terms of the contract to pay for the property to be brought back to its original condition and asking the defendant to arrange payment for the work to be carried out.

14. On 08/07/2012 the defendant replied to the claimants request by refusing to accept responsibility for the damage and gave notice to vacate the property. The defendants vacated the property on 21/08/12 and on further inspection the Claimant noticed there was further damage to some furniture.

15. On the 21/09/2012 the Claimants sent a letter to the Defendant forwarding address stating that they would take action if they did not receive a satisfactory payment/response within seven days. A response
was received on 10/10/2012 saying his solicitor was dealing with it. As yet nothing further has been received from the Defendant or his Solicitor.

16. As a result of the matters set out above, the Claimant has suffered financial loss and damage.

PARTICULARS:

As appears in the quotation from Kenny Décor (marked exhibit B hereto)

1. The Claimants property and furniture has been damaged to the extent that all the walls and woodwork in the property needs to be cleaned of all surface mould, sealed with a mould resident sealant and re painted with 2 coats of matt paint to the walls and 2 coats of gloss paint to the woodwork.

2. For a reinstatement to the property’s former state, the decoration work has been quoted at £1200 and
additional costs at £1539.36 for furnishings and loss of rent.

3 The Defendant is in breach of the express term in the Contract by not ventilating the property properly causing lice infestation, mould growth and damage caused by condensation and not cleaning the property.

4 The Defendant is in breach of the express term in the Contract by allowing more than the appropriate number of Tenants to inhabit the property without seeking the permission of the landlord.

AND the Claimant claims:

(a) The sum of £2739.36 being the cost of the reinstating the property to its former state prior to letting.

(b) The sum of £1650.00 being the balance of the deposit.

(c) The interest set out above pursuant to section 69 of the County

Court Act 1984

(d) The break down of costs incurred by the Claimant are as follows:

Re Decoration £1200.00

New Bedroom Carpet £137.43

New Sofa and Armchair £600.00

New Lounge Curtains £60.00

Laminate Floor Edgings £17.00

21 Days Loss of rent due to the property being un marketable at a rate of £34.52 per day £724.93

Total £2739.36

Dated this 14th day of November 2012

Mark Alexander

23:56 PM, 4th February 2013
About 8 years ago

I agree, the biggest problem here is that the inventory was not signed. The acknowledgement of the existence of an inventory is useless as the tenant will no doubt claim that the inventory presented as evidence is completely fabricated.

2:11 AM, 5th February 2013
About 8 years ago

As with any action of this nature I guess it has to pass the usual three tests, i.e.:

1. the tenants had a duty of care to the property (and thence the landlord) to keep the property in a good, sound and rentable condition (eg. specific wording in a contract). There is an inherent assumption that the as-built insulation/ventilation of the property was/would be adequate such that if reasonable steps were taken then airborne moisture would not have an opportunity to condense and cause a problem so a report confirming this from an independent, competent person would be useful,

2. the tenants were in breach of this duty, i.e. does the landlord have robust evidence to demonstrate that the tenants conducted their affairs in a manner that led to the breach occurring (dated photos, letters, e-mails, etc. showing the condensation/damage and advising them of their responsibilities),

3. the breach led to the loss, i.e. the failure to prevent avoidable condensation led either partly or wholly to the loss that the landlord is seeking to recover.

I would imagine that if the landlord was/is in possession of good quality evidence to satisfy these three requirements then he should have a reasonably strong case

Industry Observer

14:27 PM, 6th February 2013
About 8 years ago

I'd say you are wasting your time here.
Without a SIGNED inventory there is no proof that a tenant has accepted what is said within it on commencement.
You have no 'before' photos
You have the problem of the fan not working for 12 months which they will say they have witnesses to the fact that they reported it to you verbally.
I wish you luck, but in terms of the TDP dispute I'd be surprised if you get a good result. And without that you have little chance in Court

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