Here is a very timely blog clinic question from Eva, actually a landlord, asking on behalf of tenant friends.
My friends are homeless as of today as their newly rented property flooded badly last night.
They moved into new rented property last weekend. The tenancy agreement and deposit protection all looks properly done and in accordance with regulations (I am a landlord myself so I know the rules and how it should be done).
The landlord of the flooded property has now taken possession to deal with the flood damage (which is bad – all of downstairs the water is above the rads) and the tenants are homeless.
Landlord has given no indication as to when the property will become habitable again, as at this point in time this is completely unknown, but it would not be unreasonable to believe this will take several months.
As I understand, in these circumstances the landlord has no obligation to provide alternative accommodation for the, but please correct me if I’m wrong.
Question: can these tenants somehow now end their tenancy and get their deposit back, more or less immediately, so they can find somewhere else to rent and to live?
Immediate accommodation needs
The first point I would make here is that people who have been made homeless by reason of fire or floor or some other natural disaster will be deemed to be in ‘priority need’ and can therefore call upon the Local Authority to provide them with at least, emergency accommodation.
Perhaps some of our LA readers could provide details of what they would offer tenants in this situation.
Another possible solution for emergency accommodation would be to see if the cost of this is covered by the landlords insurance.
I am not familiar with the detail of standard landlord insurance policies, but if it was intended for the tenancy to continue, the landlord would need to provide alternative accommodation for the time it took to effect repairs and this is perhaps something which the landlords insurance would provide for.
Long term accommodation need
We then need to look at the future of the tenancy as a whole in these circumstances.
As indicated above, if the repairs are not going to take longer than a few weeks, the landlords insurers may include the of rehousing the tenants in the interim as part of the costs of the claim as a whole.
The tenants would carry on paying their normal rent to the landlord and any additional expense would be covered by the insurers. They would then be able to move back into the property once the remedial work had been done.
However from what you say, it looks as if the damage is more serious here and it will take a very long time to effect the repair work.
The first thing to do is to take a look at the terms of your tenancy agreement and see what it says about this sort of situation. My tenancy agreements for example say that if the property becomes uninhabitable by fire or flood then the tenancy will end.
In which case the landlord would not be able to resist a claim for the return of the deposit.
If the tenancy agreement is silent, there are two other arguments which could be used.
The first is that the contract has been ‘frustrated’.
This is a contractual doctrine which says that if the contract becomes impossible to perform it will end. It stems from a case in 1863 called Taylor v. Caldwell when a contract to perform at a concert was held to have been frustrated when the concert hall burned down.
I am not aware of any landlord and tenant cases based on the doctrine of frustration but this does not mean that the doctrine will not apply. If the property is destroyed or is uninhabitable I think there is a strong argument that it will apply.
The other argument which may be available is due to the fact that your friends have just moved in. There is an old ‘common law’ rule which says that if at the start of a tenancy of a furnished property, the property is found to be ‘unfit’ (which since 2007 will mean that it has a category 1 ‘hazard’ under the Housing Health and Safety Rating System) then the tenants are entitled to end the tenancy and move out.
There may be a problem here as the problem arose after the tenants had moved in and was not something present right from the start. So it may not, strictly speaking, be applicable. However there is no harm in mentioning it!
Reclaiming the deposit
My view is that (subject to what the tenancy agreement says) your friends should be entitled to end the tenancy and reclaim their deposit. How they do this will depend on the tenancy deposit scheme being used by the landlord.
The best thing would be for them to ring the scheme help line and have a word with them. They cannot be the only tenants in this position and no doubt the advisors will have been told what the schemes policy is in these circumstances.