Here is a blog clinic question from Angela (not her real name):
I need some legal advice with a small claims court claim I have taken out against a tenant who has just moved out, leaving the property in a dirty and unkempt state. Am I allowed to charge mesne profits against the days during which the property is empty but I am sorting out the mess he has left behind?
Also, is it true that legally, a tenant cannot withhold rent, or any part of rent, if a Landlord has not fixed heating or hot water appliances in a property? I had a nightmare with the property, whereby first his shower went, then his boiler. I called out a total of 3 plumbers over the course of several months in a concerted effort to fix these appliances.
It took months because the tenant failed to report problems promptly when I thought we had things fixed and had paid plumbers bills in the meantime. We got the shower fixed on the third attempt (one plumber had put the part in back to front.)
The tenant then complained the boiler was only working intermittently. His gas bill shows the boiler usage was commensurate with an average use for that time of year (middle of winter). However, I still tried to get it to work by calling plumbers in, and have the bills and emails to prove this, but without success. One plumber sent me a bill for over £700 and eventually admitting incompetence settled for payment of £100 after I complained.
Eventually I told the tenant he could call someone in himself if he wished as I was unable to find anyone to fix it and also at that time he owed me over £8000 being 3 month’s rent plus bills and I had already incurred over £1000 in expenses trying to sort out the problem. Not only did he refuse to go down that route, he then later refused a 4th heating engineer access when I found someone else. What is the legal situation in this case?
A couple of points here.
To claim for lost rent a landlord will have to prove (1) that the property was left in a state which goes beyond fair wear and tear and (2) that as a result of the tenants breach of covenant (ie to look after the property) it has been vacant for longer than would otherwise have been the case.
In order to prove this, you would need to prove how long it would take to let the property if it had been left in a reasonable condition under current market conditions and that hte works you had to do extended this period. So such a claim is possible but is not a particularly easy one to prove if it is challenged.
A tenant can sometimes withhold rent, but this is only to cover the actual cost of getting repair work done when the landlord has failed to take action. There is a procedure they need to follow first though, which includes getting estimates and sending them to the landlord, and warning them what they are doing.
It sounds to me as if you have investigated all problems properly. If you have had several plumbers out to fix a problem and none of them have found it, that sounds to me rather like evidence that there was not actually a problem. I don’t think your tenant has any cause to complain particularly due to the fact that (1) they then refused to let one of your plumbers in to do work and (2) they were in arrears of rent.
What do other people think?
Jeez Angela, what a run of misfortune.
Tessa has the housing law stuff right but I am astonished that 3 different plumbers couldnt work it out. My mate Eamonn is a plumber and he has to pass exams every year or so to prove his competence. Sounds like you had Laurel and Hardy.
In addition to Tessa’s input I would add that under Section 11 of the Lanldord and tenant Act 1985 a landlord is under a statutory duty to carry our certain repairs but only once the repairs have been brought to the landlord’s attention.
The tenant can withold rent following the general rules of equitable right of set off, which Tessa has written about on this site but I wonder where this fits in for your case.
To be brutally honest, it sounds like you just got stiffed by your tenant and the plumbers. One to put down to experience.
Any money claim in the courts is always theoretical. Even if you win the case you rely on the tenant actually being solvent enough to meet the redress.
As Tommy Cooper once said when a barmaid short changed him by 10p “Its not the principal, its the money”
Maybe a court would view the landlord repair liability as “strict” under Section 11 of the Landlord and Tenant Act 1985. therefore irrespective of how hard the landlord tried to put right the defect – failure to do so in a reasonable time would give the tenant a potential right of Action – I agree with the rest of the comments.
Miles
it is not just the cost of the tenant doing the works that can be set off against the rent.
a landlord is responsible for relevant disrepair on land owned by the landlord and not let to the relevant tenant that causes damage to a tenant from the moment the disrepair occurs. In respect of relevant disrepair within the property let to the tenant the landlord is in breach of their obligations if not dealt with within a reasonable time of having had notice of the disrepair from that point onwards.
A tenant is not entitled to go on rent strike but is entitled to set off against the rent any damages the tenant is entitled to for breach of the tenancy agreement and can also save the cost of repairing the disrepair themselves as well as deducting damages. However, if the landlord does the repair the tenant can only deduct the damages from the rent and has to pay the balance of any additional money witheld to enable the tenant to carry out the necessary works themselves.
My understanding is that a tenant can only deduct the actual cost of repair works done by him, and then only after he has followed the proper procedure. Whats your authority for saying that the tenant can deduct other claims from the rent?
Where opposing demands are connected by originating in the same transaction, the balance has always been regarded by the common law as the debt so no question of set off arises. Halsbury’s Laws Of England 3rd edn , Green v Farmer 1768 4 Burr 2214 @ 2221.
Equitable setoff is available where the setoff claim is “flowing out of and inseparably connected with the dealings and transactions which also give rise to the claim. Bank of Boston v European Grain [1989] AC 1056
It can arise where the setoff is for damages.
The damages setoff claim is a substantive defence to the claim so that the (creditor) is not permitted to regard the debtor as debtor to the extent of the setoff cross demand, and prevents distress. Eller v Grovecrest [1995] QB 272
It can apply where unliquidated damages. See Beasley v D’Arcy (1800) 2 Sch & Lef 403 HoL , O’Mahoney v Dickson 2 Sch & Lef 408 .
British Anzani v Felixtowe [1978] EWHC QB 2