Where does this tenant stand legally regarding rent payment when the flat is flooded?

Here is a question to the blog clinic from Martha (not her real name) who is a tenant:

We rent a basement flat below our house for use for family, guests, home office and storage.

3 months ago there was a severe flood from a freak storm (natural disaster), resulting in the hallway, lounge and kitchen being completely flooded.

We do not ourselves sleep there so we are not looking for alternative accommodation.

However we cannot use the apartment for any period of time now for anything or anyone as it is uninhabitable and unhealthy due to severe damp and water damage, and smell and uncarpeted (since the old one was thrown out)

We have asked our landlord repeatedly for a rent reduction / waiver until the flat is liveable again.

We have continued to pay him however for the past 3 months, however we asking now for a backdated reduction / waiver, and also going forward until the flat is liveable again.

He is insisting that by law, and by advice from the estate agents that he does not have to do anything to reduce the rent, and that it is our responsibility via content insurance (that we do not have) to cover our losses, by having the insurance cover money for outside accommodation?

We are confused and not sure what to do, however we feel unfairly treated by the landlord at the moment, who seems to be happy to take full rent from us while we are unable to use or live in the property.

We wish to know where we stand legally.

Answer:

There is a lot of missing information here.  Presumably Martha, you rent out the house you live in from your landlord AND the basement flat.  It sounds from the way you have written your question as if the basement flat is on a different tenancy agreement than the house.

If that is the case, then, for what its worth, it won’t be on an AST, as you do not live in it as your ‘only or principal home’ (HA1988s1b).

Landlords repairing obligations

The property will (assuming it is a residential tenancy of less than 7 years) be subject to the landlord’s repairing covenants as set out in s11 of the Landlord & Tenant Act 1985, in particular

(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

Along with the installations for the supply of utilities, space and water heating.  So your landlord will need to do what is necessary to put the property back into repair after the damage caused by the storms.

However, who is responsible for the other damage and the cost of putting it right?

Other damage and loss

From what you say, the damage to the property done by the flooding is not due to the landlord or presumably disrepair, as it was caused by a freak storm.

I think therefore the cost of rectifying any damage not covered by the repairing covenants is going to be down to what it says in the tenancy agreement and whose responsibility it was to insure it.

Normally with residential tenancies the landlord will insure the property against this sort of thing, although NOT the tenants own possessions.

So the landlord is right in that respect Martha – he cannot be held responsible for the damage done to your own possessions.  It is generally accepted that it is up to tenants to take out their own insurance for that.

However so far as the damage to the property is concerned, drying it out and dealing with the landlords contents, this is generally covered by the landlord’s insurance.

So if he has not insured it, he may be in breach of contract – if the tenancy agreement provides for him to take out insurance (which it should do).  So you may be able to claim damages for breach of contract based on this.

Tenancy agreements should also deal with the question of what happens if the property becomes uninhabitable – for example my  agreements provide that the tenant should not pay the rent, or a proportionate part of the rent, if the property becomes uninhabitable – save for something which is the tenant’s fault.  Again, this should be provided for under the landlord’s insurance.

So the most important thing for you to do is to read your tenancy agreement and see what it says.

Question however (particularly if the basement is let under a separate agreement) whether this is a residential tenancy, as you say it is used for a ‘home office’.  Was the home office the main use?  If so this may be a commercial tenancy and outside the remit of this blog.

What does anyone else think about this situation?