Here is a question to the blog clinic fast track from Fiona who is a landlord.
I own an HMO which is fully licensed and managed by a letting agent.
Recently a fire at the property caused damage to neighbouring properties – fences, sheds, trampolines etc.
The tenants deny causing the fire but there is extensive evidence they have been smoking at the property and discarding lit cigarettes to just burn down. The fire report also states smoking materials as the cause of the fire.
My building insurance will cover part of the replacement of the fences but none of the other items. The insurance company told me to tell the neighbours to just claim off their own insurance policies.
I did not feel this to be fair so I have offered to replace other items but now one of the neighbours is making additional demands around the installation of replacement items which while I am sympathetic to their situation feel is excessive.
I want to know the following:
- Firstly am I legally liable for the actions and danger caused by my tenants?
- Secondly, do I have any case for recourse with my letting agent? They knew smoking was going on in breach of the tenancy agreement and they also, unbeknown to me, decided to stop taking deposits from tenants
- Finally, how do I go about seeking money form the tenants – is that the small claims court and to what extent do I have to prove they were guilty?
Here are my comments on your three questions:
1 Are you liable for your tenant’s actions?
The answer has to be ‘no’. There are only very limited circumstances where one person is legally liable for the actions of another.
- The best known is where an employer is legally liable for the actions of his employee, provided they were acting in the course of their employment. This is known as ‘vicarious liability’.
- Then I believe parents may be liable for the actions of their children, although I am not sure about this.
- Finally, in the past, husbands were liable for the debts of their wives, but that rule ended a long time ago.
There is no rule making landlords liable for the actions of their tenants, although many people would like this!
So you cannot be liable for your tenants’ actions here. However, I hope you made it clear when you offered to replace items for your neighbours that you were doing this as a gesture of goodwill only and that you were not thereby accepting liability for the fire.
I suggest you make it very clear now to the neighbour that you were only offering to make reparation as a goodwill gesture and that they must not take this as being an admission of liability. If they want to make a claim it should either be against their own insurers or your tenants who were the ones actually responsible for the fire.
2. Claiming from the tenants
Any claim that you make against the tenants will need to be done in the Small Claims Court. You will have to prove liability but the standard of proof will be ‘on the balance of probabilities’ rather than the heavier standard of proof used in the criminal courts which is ‘beyond reasonable doubt’.
So this means that you will have to prove it is more likely than not that your tenants were responsible for your losses. As the tenants were the ones in occupation of the property and were, therefore, the ones in control of what went on there, you should not have much of a problem. Particularly in view of your evidence regarding smoking and the fire report.
The main problem may be that the tenants do not have any money to satisfy any judgment you obtain against them. In most cases getting the judgment is not the problem. It is getting the defendants to pay the money which is the problem. If they don’t actually have any money there is not a lot you can do about it. You cannot get blood out of a stone.
So if they are on benefit it may not be worth going to the expense of bringing a claim. If they have a well-paid job however it will be worthwhile as you will be able to get an attachment of earnings order. You can find out more about the enforcement procedures available to you here.
I am assuming by the way that your tenancy agreement had suitable clauses prohibiting smoking in the property, as if not this may make it more difficult for you. Although I think even so you should be successful in getting a CCJ.
3. Recourse against the letting agent
I think you do have a claim against the agents. Failing to take a deposit is a very serious thing and should only have been done after consultation with you. In fact, I find it quite extraordinary that they did this without telling you and am pretty sure that you will be able to claim from them any losses that you suffer as a result.
I have put this item last as the agent’s liability will be for any losses you suffer which you are unable to claim from the tenants. So you may be expected to claim against the tenants first. Otherwise, your final losses cannot be assessed.
What you do depends on how serious your losses are. However, you may want to claim first via the agents Property Redress Scheme. All agents need to be a member of a scheme and you will find details on how to claim on the scheme website.
You may want to consider seeking advice and help from a suitable solicitor, particularly before bringing any court proceedings. You will need to provide them with all your evidence regarding the fire and the fire report and a copy of the tenancy agreement. To advise on any claim against the tenants they will also need to have information about their finances.
I would suggest that to start with, you proceed, in your dealings with the agents, as if you were just going against the tenants. As soon as they become aware that you are looking to bring a claim against them, the agents will almost certainly become uncooperative. Before this happens you need to be sure that you have obtained all the tenant related documentation that they may hold.
You can find out about the telephone advice service provided via my Landlord Law service here.