I have, today, received an email telling me that the landlord wants to keep £110 of a £500 deposit to cover the cost of repainting a wall that is showing the effect of damp.

At the start of the tenancy the landlord told us that she had no money to put the damp problem right. She asked us to leave windows open to lessen the problem.

We had a new baby whilst in the house and so we were limited in how long we could leave the windows open for.

Prior to my leaving, the landlord sent somebody round to check the house and he informed us that we should paint over the damp that was showing.

This we did.

It was some weeks after we did the repair work at our expense, that the inspection happened. Hence the damp showing through again.

I am very unhappy about the £110 charge and feel it is completely unjustified.

What do I do?

First of all, read this post here.  There are three main reasons for damp problems and the responsibility and rights differ depending on which one applies in your case.

However if you sorted the problem (or at least did what you were told) at the time you left, the landlord cannot blame you for something which happened after you vacated.

I would suggest you challenge the deduction and ask that the matter be referred to adjudication.  All the tenancy deposit schemes have a free arbitration scheme you can use if there is a dispute about deductions from the deposit.

And if the landlord has failed to protect your deposit?  Then she is not entitled to make ANY deductions and you can claim the whole sum back if you go to court.  Sadly due to this case here you can’t claim the penalty payment but you can claim the actual deposit itself.

We are due to move out of a rented property as we are buying a new home as such we started to pack things away in boxes etc.

We had a picture on the mantel piece above the fire place in our current rented property which I was taking off when with very little pressure/force the top piece of the fire place started to fall from its placing.

I immediately dropped the picture and tried to catch it from falling however it’s weight was too great for me and I fell to the floor with it injuring my arm slightly whilst trying to insure it did not injure my dog and wife who were both sitting close by.

I kept the right hand side of the piece up with my arms yet the left hand side hit the floor and chipped badly.

Together me and my wife re-positioned the piece only to find the fittings were very, very loose but we do not want to take it back down from the fireplace.

We took pictures of the damage and fittings before re-positioning the piece.

I immediately contacted the landlord who I was only recently given contact details for to inform him of what happened and that we are worried it is very unsafe.

The landlord sounded angry but made no threats but continuously referred to the piece costing £1000.  He agreed to come and view what has happened.

I am unhappy that I may be charged for something that was so unstable and completely out of my control given we had no idea of its instability until it came crashing down to the floor.

I feel intimidated/worried that the landlord will be here and possibly in an angry state when he comes to view the damage given the anger in his voice over the phone.

Please could you provide me with any help possible in terms of what I should do.

We have never had a landlord dispute or claim of this kind in the past and are worried we will be treat unfairly and need to know our legal rights.

Almost certainly the landlord has by now visited (I am afraid we cannot get the blog clinic posts up that quick – there is always a delay of a day or two at best).  However my view is that if the mantel fell down that easily it  must have been loose anyway and you should not be held liable for this.

I would suspect that the mantel of a fireplace will be part of the structure of the property (although this may be a moot point) and if so it will fall under the landlords statutory repairing covenants.  It does not sound as if its condition can be put down to you.  Indeed you may well have a claim against the landlord for personal injury, if your arm was injured by it falling.

If a claim is made for the mantel repair I would suggest that it be rejected and referred to adjudication if the landlord is not prepared to drop it.

So far as the visit is concerned (if it has not already taken place) probably best to say as little as possible other than that it was not your fault and that you cannot be held liable.  I am glad to hear that you have taken photographs.  Make sure that they are clear and show exactly what the problem is.

The following are links to items referred to in the article:

• The BBC news item on decent homes on 16 September 2010
• The revised definition of the decent homes standard published in June 2006
• The Housing Act 2004 - part one sets out the HHSRS
• A list of the 29 hazards on the HHSRS (provided by East Midlands local authorities)
• National Landlords Association article regarding the housing benefit survey
• My post on the Channel 4 Landlords from Hell program, and follow up post
• My post on the Battersby Report and the report itself
• Two posts on housing reports, one on a parliamentary report and one on housing in Wales
• News item on Newhan Council’s plans

1. Section 11 of the Landlord & Tenant Act 1985

This sets out the legal obligations landlords have towards tenants as regards keeping the property in repair. They can’t be excluded by landlords (for example by a clause in their tenancy agreement) unless the landlord has obtained a court order.

If the landlord fails to comply, tenants can go to the country court to get an injunction ordering their landlord to do the relevant works, and an order for financial compensation.

You can see section 11 here.

2. Part 1 of the Housing Act 2004

This sets out a procedure for Local Authority Environmental Health Officers to follow when inspecting a property for fitness.

If the inspection finds any ‘category one hazards’ they are obliged to take action against the landlord. Normally this will be serving an improvement order, which if the landlord fails to comply, can be enforced via the Magistrates Court.

You can see the Housing Act 2004 here.

3. The Gas Safety (Installation and Use) Regulations 1998

These require all landlords renting properties with gas appliances to have them inspected annually by an installer registered with the Gas Safe Register and provide a certificate to the tenants. The regulations are enforced by the Health and Safety Executive, which is done via the Magistrates Courts.

You can see the regulations here and the HSE has a useful website here.

4. The Furniture and Furnishings (Fire) (Safety) Regulations 1988

These require furniture and furnishings in rented property to be fire retardant and carry the proper labels. There is an exception upholstery for furniture made before 1950. These regulations (as are several others relating to product safety) and regulated by Local Authority trading standards offices, who will enforce them if necessary via Magistrates Courts.

You can see the regulations here.

5. The Management of Houses in Multiple Occupation (England) Regulations 2006.

These only apply to Housing in Multiple Occupation (HMOs) but they will apply to ALL HMOs, not just those that need licensing. They are regulated by Local Authorities who can if necessary enforce them via the Magistrates Courts.

You can see the regulations here.

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As can be seen, all of these except number one, the statutory repairing covenants, fall within the criminal law (see my previous blog post for the difference between criminal and civil law). The main significance of this is that they do not give tenants special rights to go to court to enforce these standards – this is generally done by someone else.

If a tenant wants to bring a claim himself, this can only really be done under the section 11.

By the way, this is just my list – if you think there is another law which is more important than these, please leave a comment.

If you are a landlord, you may be interested in my Ten Top Tips on the legal aspects of preparing a property to rent.

An interesting new housing report, prepared by Dr Stephen Battersby for Alison Seabeck MP, Shadow Housing Minister & Karen Buck MP, Shadow Work and Pensions Minister, has been published on housing conditions in the private rented sector (PRS).

There are three main conclusions to this report.

1. Local Authorities (LAs) work is currently ‘complaint let’, with no systematic attempt to deal with an areas problems as a whole. However this is not enough to discharge their statutory duty.

2. LAs need to keep better records as well as making better use of their enforcement powers. Otherwise how can the result of any action they take be known?

3. Government needs to review the statutory guidance, in particular to ensure that better records are kept.

Background

Local Authorities have special powers under the Housing Act 2004 to carry out inspections of properties (under a procedure known as the Housing Health and Safety Rating System).

If as a result of this, the properties are found to have ‘category 1 hazards’, the Local Authority have various enforcement powers they can use. These include serving improvement notices leading (if the work is not done) to prosecution, and they also have power to get the works done and charge this to the owner.

What the report shows

The report covers the three year period to 2009/2010 and only looks at the PRS because that is where most LA inspections tend to be.

Dr Battersby starts by referring to a number of reports showing that improvements in housing standards can result in massive savings elsewhere, for example to the NHS.  (See also our posts here on poor housing and on poor housing in Wales.)

One report has estimated that every £1 spent on housing support can save £2 in reduced costs to health services, tenancy failure, crime and residential care. Low cost interventions can be particularly valuable in terms of health and welfare benefits.

However the information and records kept by LAs, are mostly inadequate, and are inconsistent across the country. Most interventions are ‘complaint led’, rather than LAs using their powers in a purposeful way to deal with their area as a whole.

So far as the hazards themselves are concerned, ‘crowding and space’ is becoming increasingly significant, although overall ‘excess cold’ and ‘falling’ hazards are the most common.

Information available shows that local authorities prefer to take informal action rather than formal enforcement.

Commenting on all this, Dr Battersby has a few things to say:

Record keeping

It is difficult to see how LAs can develop strategies or show whether their actions are having any benefit or not, if they are not keeping proper or consistent records.

“Vulnerable private sector tenants” he says “should reasonably expect a more consistent approach, regardless of the council area in which they live”.

Complaint led action only

LAs have a duty under the legislation to inspect properties in their area if they become aware of the likelihood of problems. However

‘in practice most local housing authorities intervene on the basis of complaint or service requests rather than as the result of any coherent strategic approach.

Given the lack of security in the PRS and reluctance to complain, it is probable that those who feel most insecure and vulnerable (and at risk of retaliatory eviction) will not complain and so local housing authorities may not be dealing with the worst housing conditions, nor the most irresponsible or worst landlords.

Reliance solely on complaint before intervening even increases the risk of retaliatory eviction when action is taken.”

Meaning if landlords know that LAs will only get involved if someone has complained, this will prompt them to get rid of the complaining tenant. Whereas if they know that the LA will be doing the inspections anyway they will be less likley to do this.

Only a low percentage of problem properties dealt with

The English Housing Survey (EHS) indicated that there is an average of 2969 properties in the prs with category 1 hazards but LA records show that only about 10%, at best, of these are being dealt with.

Although “with so much informal action it is also difficult to know if these hazards are dealt with adequately if at all”.

Reluctance to use enforcement powers

Dr Battersby comments that there seems to be a reluctance among LAs to use their enforcement powers, for example improvement notices, or even hazard awareness notices. All this ‘informal action’ makes it difficult for LAs to account for what they are doing or for us to have any idea of what, if any, action is being taken. He also points out that

“informal” action is not a course of action available for meeting the duty in Part 1 of the Housing Act 2004.”

The stronger powers available to LAs such as prosecutions or getting the work done themselves and recovering the cost from the landlord seem to be being used very rarely if at all, and most (80%) of LAs do not appear to have taken any prosecutions at all.

Housing benefit changes will make it all worse

The forthcoming changes in housing benefit look likley to just make things worse, as landlords will either pull out of renting to HB tenants altogether, or will attempt to crowd in more tenants so as to maximise their income. Cuts in legal aid are not going to help either.

“Who” demands the report ‘will protect the most vulnerable tenants?” There does not appear to be any satisfactory answer.

You can see the full report >> here. The picture above is taken from the report cover.

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(Note – landlords and tenants wanting to know more about the system and their respective rights and obligations, will find this on my main Landlord Law site)