Tenant wanting to leave 2 weeks into 12 month contract

by Readers Question

16:16 PM, 31st March 2015
About 4 years ago

Tenant wanting to leave 2 weeks into 12 month contract

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Tenant wanting to leave 2 weeks into 12 month contract

My previous tenants had a mouse problem and I paid for an exterminator to come in and try and eradicate them. They had not seen a mouse in the property since January.

My new tenants moved in on 16th March on a 12 month AST but were very unhappy to see mouse bait boxes in the flat. I left these there just as a precaution in case the mice come back. They now want to leave and say that I didn’t advertise the property correctly. As there were no mice present, I didn’t think I had to mention them. They have paid 1 month in advance and 6 weeks deposit (in the DPS). They seem to think they don’t have to pay any more rent and are threatening to ‘take things further’. They have apparently found another property to move into, but it’s not ready yet.

Unfortunately when they moved in, the fridge and shower also stopped working! We replaced the fridge and the shower, but there is still a problem with the shower. They begged us to let them take the flat 2 weeks earlier than we wanted to. We wanted to decorate the flat and would have spotted the fridge and shower issues before they moved in. We told them we would decorate this week but now they won’t let us in the property.

I would rather they leave as they look like they will be nothing but trouble. I initially said I wanted them to pay for the tenant referencing cost and cleaning cost which they have refused. I’ll let them off that just to get them out. I’ve downloaded your surrender document and will complete it when I have a move out date from them.

I suppose my main query is did I have to mention a mouse problem in the flat that had already been dealt with before they moved in?

One thing coming out of this is that I’ll be getting rent insurance from now on.

Annamouse



Comments

Rob Crawford

16:40 PM, 31st March 2015
About 4 years ago

I don't think you needed to mention the mouse issue as you had by all accounts eradicated the problem. Leaving the bait boxes was probably not a good idea though. Were they visible to the tenants during the viewing? If so they could have asked why they were there. You have good reasoning regarding the shower and fridge. Despite this, from experience, keeping tenants in a property when they don't want to be there is never a good move as this will only be to your detriment in the end, they just won't care about the property etc. However, a decision to let them go early should not be taken lightly and as they have little reason for this I would expect them to continue with meeting their obligations fully until you can find a new tenant.

Elaine Hassall

19:12 PM, 31st March 2015
About 4 years ago

I agree with Rob, an unhappy tenant is never a good one, cut your loses, re-advertise, get good new tenants and get rid of the mouse traps...........

ashley nissim

10:34 AM, 1st April 2015
About 4 years ago

Hi Anna

One thing to consider in furture is a clause that I advise all my landlords to put in their contracts. The clause states that it is the tenants responsibility to keep the property free of vermin and insects.

Why should it be the landlord's responsibility to take care of an issue that is more likely to be brought on by the general living conditions. This will cover things like fleas, bed bugs, mice etc.

The only thing it would not cover is a structural issue (such as a hole in the soffits that is letting squirrels into the roof).

Also, make sure that you have a good independent inventory with dated photos that is signed by the tenant on the move in date. That way you will have a chance of winning any deposit dispute.

Landlord rent guarantee insurance can be useful, but most policies will have an excess that is the first month rent so this may not have helped in this situation.

Sharon Betton

12:21 PM, 1st April 2015
About 4 years ago

Reply to the comment left by "ashley " at "01/04/2015 - 10:34":

I am not entirely sure that a clause as Ashley suggests would be a fair contract term. Even clean properties can have mice intrude. Where it is entirely due to the way the tenant lives, then it should be their responsibility. However, in this case, evidence of a mouse presence (even though now gone) was there to start with. How could this tenant be held responsible, should a mouse appear within a short time of the tenancy commencement?
I have a couple of bait boxes down because we occasionally get a field mouse come in - we have found no evidence over a no. of years, but keep them there as a precaution. I think either: get rid of the bait boxes, but then deal with the issue swiftly if a mouse does get in or: point them out to the tenant during the viewing and express they are there as a precaution - your prospective tenant can therefore make a decision based on full facts. I'd let this one go as clearly think they have been badly done to.

ashley nissim

14:18 PM, 1st April 2015
About 4 years ago

Reply to the comment left by "Sharon Betton" at "01/04/2015 - 12:21":

Is there any reason why it should not be the responsibility of the tenant?

If a homeowner has to deal with day to day problems, why shouldn't a tenant. As long as there is no structural problem with the property that is causing a problem there is no reason why it should not be dealt with by the tenant.

I can't see how this could be an unfair contract term. It would be interesting to hear what a solicitor thinks or if anyone else uses a similar clause.

George Crofts LLB

15:42 PM, 1st April 2015
About 4 years ago

At common law, there is in general no implied warranty on the part of a landlord that the demised premises are fit for the purpose for which they are taken. On the letting of an unfurnished dwelling house or flat there is no implied warranty on the part of the landlord that it is in a reasonably fit state for habitation.

The intending tenant is presumed to make his own inquiries as to its condition, and, in the absence of a special stipulation, he takes the house as it stands. If the house is, in fact, uninhabitable, then, after accepting the lease, the tenant is without remedy, except where he has obtained a warranty of fitness, or where he has been induced to take the lease by misrepresentation on the part of the landlord, in which case the tenant may be entitled to rescission or damages

The mere omission of the landlord to disclose defects is not such misrepresentation but the deliberate concealment of some defects may be conduct equivalent to a fraudulent misrepresentation.

On the letting of a furnished house, there is an implied condition that it is in a fit state for habitation at the commencement of the tenancy; and, if this condition is not fulfilled, the tenant is entitled to repudiate the contract at once.

He need not wait to give the landlord an opportunity for effecting repairs. It is a breach of the condition if there are substantial defects in the drainage, or if the house or any part of it is so infested with vermin as to be a source of serious inconvenience to the occupants; but not if there are merely ordinary defects of repair which may be easily remedied.

To fulfil the condition it is not enough that the landlord believes the house to be in a fit state for habitation; it must in fact be reasonably habitable. The implied condition may be treated also as a warranty, and the tenant may recover damages for the breach.

Given that you mention a fridge, I think it's safe to say this is a furnished property. If the property really was uninhabitable at the start of the tenancy (no shower, no fridge, potential mice infestation, renovation work needing to be carried out) then your tenants can set aside the tenancy and maybe pursue you for damages.

Your goal is to show that all of these issues have been exaggerated. The property was habitable and you were willing to do repairs etc. Even so, you accept that the tenant wants to leave and agree to end the tenancy. By not being greedy (asking the tenant to pay for referencing cost and cleaning cost) you can make this split as amicable as possible. You will want to avoid the tenants moving out, bringing a claim against you for breach of contract and asking for their moving costs, agents fees etc as damages.

ashley nissim

16:50 PM, 1st April 2015
About 4 years ago

Reply to the comment left by "George Crofts LLB (Hons)" at "01/04/2015 - 15:42":

That is interesting.

If I am reading this correctly, so long as there is no infestation on the date of the move in there is no reason why the tenant should not be responisble for keeping the property free from vermin during their tenancy.

Thus, a clause stating the tenant's responsibility for this is fair.

George Crofts LLB

18:07 PM, 1st April 2015
About 4 years ago

Reply to the comment left by "ashley " at "01/04/2015 - 16:50":

Hi Ashley

As you say, there is no continuing duty on the landlord to make sure the property is kept in a habitable state. For furnished tenancies, it only needs to be habitable at the start.

I do not think there is anything inherently unfair in making the tenant responsible for making sure a property is free from pests. If you look at the guidance produced by the OFT (a little dated now by still useful) there is a whole section about transferring inappropriate risks to tenants.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284440/oft356.pdf

A clause such as this might go too far and be unfair:

"To take all reasonable precautions necessary in the circumstances to prevent any damage to the the property by [pest and vermin] and in the event of such damage caused by the failure of the tenant to take such reasonable precautions the tenant shall immediately and at the tenant's own expense effect by properly qualified contracts all such repair and replacement as may be necessary to remove any [pest and vermin] and also to repair and make good any consequent damage that may have been caused to the property or the decorations thereof".

An example of a reworked clause could be:

"To take all reasonable precautions to prevent ingress of and damage occurring to the property by [pest and vermin], provided the landlord maintains the structure of the property to reasonably prevent ingress of [pest and vermin]".

The reworked clause balances the risk between the parties. The landlord needs to make sure there is not easy access for vermin and the tenant needs to make sure they don't encourage vermin.

If you do end up with fleas, rodents, slugs etc. and this is the tenant fault (storing rubbish/food inappropriately, keeping dirt animals) you will be able to hold the tenant to account.

If the ingress of vermin was a structural issue (e.g slugs coming through underneath doors or holes that allow rats and mice in) the landlord would need to resolve it.

The above clauses are for example purposes only. I do not suggest anyone use this wording without seeking legal advice. One situation that the example wording does not deal with is where rodents repeatedly breach into a property. Using my example wording, the tenant could suggest that the landlord needs to continually patch up mice/rat holes to prevent easy access. At the same time, the landlord would be suggesting that the rodents can only be coming in because of actions of the tenants (if there is no food available, rodents don't tend to come in).

As an aside, I know that it does seem attractive to make the tenant deal with such issues. The reality may be, though, that a tenant cannot afford to pay for an exterminator. If this is the case, you do yourself no good by simply telling the tenant to sort it. The situation would persist and all the while, it's your property that's being damaged.


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