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Landlord refusing to pay compensation for serious disrepair issues

PlumberHere is a question to the blog clinic from Mary-Jane who is a tenant

We have had a horrendous experience and were not been able to live in the house we rent for 23 days after the boiler failed and we had no hot water.

The landlady wanted quotes before deciding to have the boiler replaced but the whole process was long winded and stressful.

My husband and I had to chase for updates on a daily basis while my parents kindly put us up, this was a very uncomfortable situation and we had to pay board.

We have asked our landlady for 23 days off our rent but she has refused stating that she has already lost money by paying for a new boiler, blaming the previous owner of the house for using cowboys (not our problem!).

She also said that we caused delays by not being available during the day – I should point out that were not given adequate notice for appointments, always phone calls from plumbers like – ‘I’m in the area this afternoon otherwise it will be next week’.

But the biggest insult of all was when she told us we do not understand what it’s like to be a homeowner and so we have no cause to complain.

We are extremely disappointed to say the least. I’ve heard that it may be possible to have the 23 days rent struck off because we could not live in the house, is this correct and how do we do it?

Your landlady certainly has a very ‘landlord centred’ view of the world to say the least!  You are quite right, you are entitled to compensation for the days when you were unable to live in the property and are also probably entitled to further compensation for the inconvenience and stress suffered by you.

Strictly speaking if compensation is not agreed between you, you are only entitled to payment if it is awarded by the court.  However one course of action is (assuming no agreement is reached)  to deduct what you think is right from your rent and say to your landlord that if she seeks to recover this sum through the courts, you will defend and counterclaim for compensation for the loss of service and stress and inconvenience suffered by you.

If you do this, note that if the landlord then  tries to recover this money back from your deposit, you should not agree to have this decided by your tenancy deposit scheme adjudication service, as I understand that compensation for disrepair is not something that adjudicators are authorised to deal with, and they may award the money to the landlord.

Say instead that you will want the matter to go through the courts.  There is also the option of not paying the last months rent to prevent this situation arising.

As it is possible that court proceedings may be brought in the future, you need to make sure you keep full details of everything that happened.  So I suggest you write it up so you can say precisely what days you were unable to stay in the property and keep a record of any other issues.

Ideally you should keep a diary of events at the time.  Its a bit late for you to do this now, but any tenants reading this in a similar situation should take note of this.

Alternatively you could, instead of making a deduction from the rent, threaten to go to court now if your landlord fails to agree compensation.  You may be able to find a solicitor who will act on a no win no fee basis.  It would probably be advisable to take some legal advice anyway before taking any sort of action.

Buffer

Important note. If you are reading an old post, remember that the law may have changed since it was written.




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8 Responses to Landlord refusing to pay compensation for serious disrepair issues

  1. Tessa is right in saying that you shouldn’t take this matter to the Tenancy Deposit Scheme as we don’t have the authority to consider counterclaims for compensation. An adjudicator can only award the deposit based on whether you have met your obligations in the tenancy agreement. If you have not met the obligations (by not paying rent, most probably not) the adjudicator can make an award to the landlord for your failure to do so. They don’t have the power to consider why you didn’t meet that obligation just the fact that you didn’t, your best route is to follow one of Tessa’s suggestions to seek compensation for your loss.

  2. I don’t see how having no hot water makes it impossible to live in a property. It is easy to boil a kettle to heat water for a wash; our grandparents would not have expected hot water on tap. Therefore I can’t see how a case can be made for deducting 100% of the rent for the time the hot water was not working.

    If it was the middle of winter and there was no heating at all, then a case may be able to be made. But if heating fails I expect a tenant to buy themselves a fun heater and then ask the landlords to pay for the fun heater and the cost of running it unless the landlord is able to provide a fun heater himself quickly.

    If I received a reference from a past landlord saying the tenant had withhold the last month’s rent so as to be able to play the systems like Tessa is recommending, then I would think very hard before renting to that tenant. The correct clause of action is for the tenant to bring a court case against the landlord after ending the tenancy in normal way and moving elsewhere.

  3. While “practically” Ian’s comments make sense. No hot water for 23 days is something that would result in immediate action by any solicitor etc. who would act for the client.

    In regards to way forward – I would either a) contact local mediation outfit to try and sort it out or b) send out a quick letter (part 36 without prejudice) to the LL via a solicitor etc this will protect your position and if you then do bring a damages claim (which may be costly) it will act in your favour.

    I did a quick write up on disrepair and ADR following recent high court case here: http://www.legalnotebook.co.uk/housing/adr-disrepair-claims/

  4. I have to disagree with Ian, and also to some extent with Tessa’s suggestions.

    Ian, the ‘correct course of action’ is certainly not to wait till the tenancy is over then bring a claim. That would make a claim even more difficult for the tenant.

    If during cold weather, and if there are children in the property, then a lack of heating and hot water could even merit a rapid claim and application for an interim injunction to order immediate repairs as being a risk to health.

    As with all repair problems inside the let property, the landlord has ‘a reasonable time’ to carry out works after being told of the problem. But for heating and hot water, the ‘reasonable time’ is short, a few days at most.

    While Ian’s ‘make do’ approach might work in some circumstances, it is not for the tenant to provide the alternative heating and source of hot water. The tenant has no duty to mitigate the landlord’s breach of obligations. If the landlord doesn’t provide these, and quickly, then the tenant might have a case for the property being uninhabitable in some circumstances, again particularly if there are children. If the property is uninhabitable, then as well as damages of 100% of rent, there may also be special damages (additional travel costs, accommodation payments, food costs over usual cooking at home. Etc. These have to be reasonable, of course).

    Even if the property is not uninhabitable, the tenant will certainly have both a general damages claim and a special damages claim. The general damages for discomfort, distress and inconvenience for lack of heating and hot water, based on previous case law, could well run to 50% of rent. The special damages would include, for example, laundrette costs, additional electricity for bought in electric heaters, the costs of bought in heaters, travel costs to use, for example, washing facilities in a gym or such like. These could easily amount to more than the other 50% of rent.

    That said, and even if we say total damages of about 100% of rent for 23 days, this is not going to be a case that a solicitor would consider for a no win no fee agreement. If the repairs have been done, then the prospective damages would have to clearly be over £10,000 to be suitable for no win no fee, as the new Small Claims limit is £10,000 for a money only claim.

    If the repairs have not been done, then either the repairs or the damages have to be worth more than £1000.

    This is another reason why I have to say Ian is wrong (from the tenant’s perspective) to say wait until the end of the tenancy. If the repairs have not been done for an extended period, it is better to bring a claim including for an order for works, while the repairs are still not done.

    What should this tenant do? Well, undoubtedly the landlord is in breach of their obligations. But it isn’t a ‘no win no fee’ case for a solicitor, for the reasons I’ve given. Probably the best course, as Tessa suggested, is to write to the landlord setting out the compensation required – probably in the region of 50% of rent plus any additional costs incurred – in detail. If the landlord refuses, tell her it will be deducted from rent. If still no payment, deduct it and take a ‘so sue me’ stance. It would be a small claim issue or a potential defence to an arrears possession claim. But it will almost certainly mean that the tenancy would be ended at the first opportunity by the landlord. Retaliatory eviction is common and a landlord who thinks that having to replace a boiler is ‘losing money’ rather than fulfilling their legal obligations is likely to take that route.

    It is certainly not a deposit arbitration matter.

    Sorry for length.

  5. Thank you very much Giles for that very helpful comment.

    It is unfortunate that the Small Claims Court limit makes no win no fee agreements uneconomic for solicitors as this type of claim is very difficult for tenants to bring on their own.

  6. I am assuming that the tenant is on a 6 months AST, so will leave at the end of the 6 months, as no tenant would wish to remain with a landlord like that, so only delaying the claim by a few months.

    It will not cost the tenant much to being a case, and a case like this is not hard for anyone to write-up or present – then let the judge decide how much damages should be paid. The person that brings the claim has the advantage of setting the agenda for a case. If the tenant brings the case, there is little risk that the judge will reward no damage, so the landlord will have to pay the tenant court costs (but not any legal costs).

    Any tenant that gets a reference that says they have withhold rent, will automatically be rejected by lots of agents and landlords – it is not worth taking the risk that the tenant is not telling the truth when they give a reason for not having paid the rent to a past landlord.

  7. Tessa,

    As a reasonable homeowner*, how long would it take you to get your boiler working?

    Bearing in mind, you wouldn’t immediately order a brand new boiler just ‘cos the hot tap doesn’t work.

    As boilers always break down on Saturday night, I reckon you would ring a plumber during your fag break on the next working day (Monday).

    The plumber calls round the following day after your work (Tuesday).

    He looks at the boiler, sucks his teeth a bit and says “you can’t the parts anymore luv, it’s not worth repairing- you need a new boiler”. You ask how much and he says he’ll price it up in the morning and give you a ring.

    (Wednesday) He rings you with a price. It’s a lot, even for a solicitor, you understandably want a second opinion.

    By the time you’ve had a second quote, a week to 10 days has passed. You agree to the first plumbers quote and trust him enough to give him your house keys to fit it when you are at work.

    A fortnight is up and you’re back in in your jackuzi hot bath sipping vintage champagne.

    Mildly inconvenienced ‘cos you’ve had to shower at work or at your Mum’s.

    And that is acting as a reasonable householder.

    If you were an unreasonable householder how long would it take?

    By unreasonable, I mean someone who considers having no hot water as a ‘horrendous experience’ and someone stroppy enough to demand a plumber trying to fit them in, gives them ‘adequate notice’.

    Seems they got off light with 23 days.

    And please don’t reply with ‘British Gas emergency service would fix it in an hour’. I’m talking real world not cartoon characters on a TV commercial.

    *Realistically a decent landlord will have a trusted plumber on tap (geddit?) and will be able to do it a lot, lot quicker than a homeowner.




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About the post author:

Tessa Shepperson

Tessa is a lawyer specialising in residential landlord and tenant law. She runs the Landlord Law website (now in its 12th year) and is a director of Easy Law Training Ltd and Your Law Store. Tessa also sits on the Property Redress Scheme Council. When not working she enjoys reading, cooking and messing around on the computer. You can also find her on Google



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Tessa is an English lawyer specialising in residential landlord and tenant law.


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