Here is a question to the blog clinic from Rizza who is a tenant
My partner and I moved into an apartment over the weekend (2 days ago) and had to pay 6 months in advance. The only thing, we didnt realise just how noisy the place was until we actually slept in the place!
I was wondering if its possible that we could get our money back or some part of it, so we can look elsewhere? Do we have any legal rights?
I am afraid not. There is a legal rule known as ‘caveat emptor’ which is a latin phrase meaning ‘let the buyer beware’.
It means that you have to take care and make all proper enquiries before making a purchase. If you don’t and find out that there is a problem after you have paid, then it is too late.
For some types of contract, such as sale of goods, there is special legislation in place to protect consumers, but not, I am afraid, for tenants. Neither is there any ‘cooling off period‘.
The only time tenants have the right to withdraw from a contract at the start is if the property is unfit for habitation. A noisy location does not fall within this.
Thanks for your reply, I got some good ole silicon ear plugs in the end!
We have this exact situation with a tenant at the moment. They want to be relesed as they claim the elderly tenant above is noisy. They have admitted it’s just general living noise and not wild parties (footsteps, banging, flushing toilet etc) but council won’t help if it’s just general living noise. We spoke to the previous tenant who has moved to another of our properties and he said he enever heard anything. No one else has made any complaints either.
I feel for the tenant but what can you reasonably be expected to do?
It is my understanding that the term “caveat emptor” is no longer valid following the introduction of the “The Consumer Protection from Unfair Trading Regulations 2008”.
It is effectively the responsibility of the Agent no to mis-lead or omit details that would lead to an “average consumer” making a different decision.
PArt 2 and 3 cover these circumstances and should be raised with Trading Standards Officers.
More importantly, recent announcements have arguably kicked ‘caveat emptor’ in to touch for agents.
The OFT recently published their guidance for Estate Agents and it specifically covers two pieces of existing legislation: Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and the Business Protection from Misleading Marketing Regulations 2008 (BPRs).
The OFT warns that non-compliance may lead to enforcement action.
It was originally thought that the legislation didn’t really apply to property transactions but the OFT are clearly saying otherwise.
This is relevant because it says you have to make the consumer aware of any information that might otherwise have influenced their decision to enter into a transaction. So, in the case of a known noisy neighbour for example (or any other defect/problem with the property), you now have a duty to tell tenants even if they don’t ask.
Apparently the OFT are working on guidelines for Letting Agents too and they are sure to be based on the guidelines for Estate Agents.
Watch this space…..
The question will no doubt come down to what is reasonable? However do you get some one who is reasonable reviewing a complaint to the OFT or Trading Standards. If you rent a property near a main road, it is going to be noisy and if you rent a flat, it is likely to have noise from the other flats as people go about their daily business. Is it reasonable for an Agent to point out all these things and put off a tenant when we are acting for the Landlord or Seller and common sense should be applied?
If a tenant signed away from the agents/landlords office, I.e. at their previous address, they could try & rely on the Distance Selling Regulations which DO allow for a cooling off period.
I wrote about cooling off here http://www.landlordlawblog.co.uk/2011/01/24/tenants-legal-help-do-you-get-a-cooling-off-period/
It will only really apply if the tenant signed up for the property via post or email (as is often done with student accommodation) without visiting it beforehand.
It is maybe worth adding that the tenant may want to contact the landlord and push him/her hard to make a compliant to the Local Authority for noise nuisance, that may be one option.
Two comments
First the “caveat emptor” angle probably will not apply, but it certainly will not if it is noise from a neighbouring property like a flat above or below which is also owned by the same Landlord and where the landlord was aware of previous complaints. The article interestingly does not say where the noise is coming from.
Secondly if from an external source, such as a noisy road, it may well bne a hazard under HHSRS and the local EHO should be contacted.
With all due respect, I’m not sure what the EHO can expect a landlord to do about a noisy road – particularly as the tenant should have been aware of this when they signed the contract, assuming they did an inspection.
(And if the tenant did not inspect then they may have a cooling off period).