This is a question to the blog clinic from Sarah (not her real name) who is a tenant in England.
I have a question regarding refusing viewings after I have been issued an invalid eviction notice, which I am challenging.
I am a tenant in an unlicensed HMO. The letting agency issued a Section 21 eviction notice, which I am challenging on the basis that it is invalid (for being an unlicensed HMO), so I can extend my period at the property before I do move. There is a clause in my contract which says I must allow viewings for “possible new tenants”.
Despite knowing that I am challenging the notice and that they do not have an HMO license, and my making it clear that I am not leaving, the agent has repeatedly tried to book viewings for the property.
I have refused on the basis that the room is not available, my tenancy is not coming to an end as I am challenging the invalid notice, so they should not be trying to market it.
They are responding by threatening to sue me for breach of contract for not allowing viewings, and to recoup their costs from viewings they had to cancel because I refused them, and that they will keep viewings to my room and sue me for the cost of each one I turn away. They are using this threat to intimidate me into leaving.
My questions are whether this is actually a breach of contract and whether they can actually sue me for this? For not allowing viewings for a property which is still occupied and not becoming vacant?.
Answer
If your property is a licensable HMO, which is unlicensed, then any section 21 notice will certainly be invalid. Unless, maybe, they have applied for a license before serving the notice.
However, even then, you are entitled to stay in your property until such time as a possession order has been made against you and a bailiff appointment made.
I don’t think you need to worry too much about their threats to sue you. I doubt very much whether a Judge would find for them.
There may be a clause in your tenancy about allowing viewings, but this would only be applicable if the property is genuinely available.
A clause allowing them to view the property at any time, even if the property is not available for reletting, would probably be viewed as ‘unfair’ and so unenforceable under the unfair terms rules in Part 2 of the Consumer Rights Act 2015.
There is also the point that the agents are not the landlord, and their contract is with the landlord, not with you. So, it would be technically difficult for them to base a claim against you for compensation.
Incidentally, you may want to consider making a complaint to your agent’s Property Redress Scheme.
The agents are clearly breaching your ‘covenant of quiet enjoyment’. This is an implied clause in all tenancy agreements which provides that tenants should be allowed to live in their property without interference. You may be entitled to compensation.
Tell them to continue jogging.