We have a blog clinic question today from Clara (not her real name) who made the mistake of letting to a friend of a friend …
Three years ago I rented out my house to a friend-of-a-friend as I couldn’t sell it due to the recession or afford to stay living there. Initially the arrangment was fairly casual & amicable and as such we didn’t do a check-in inventory.
Six months ago I had to do considerable work to remedy what I thought was damp in one of the bedrooms, however it turned out to be mould caused by condensation, and while in the house I saw they were drying vast amounts of washing inside. It cost me about £1000 to put right.
We discussed at the time that I wanted to take money from their deposit for this, which they disputed. I have since given them notice as they wouldn’t agree to any (very reasonable) rent increase. As their deposit is protected what do you think my chances are of getting anything towards the work?
There is no harm in giving it a go but my understanding is that if the case goes to adjudication you will have little chance of success without a detailed inventory. That is the perceived wisdom. If anyone reading has any ideas to help Clara, please leave a comment.
My eyes immediately fell upon the words “Casual and amicable”. I know it’s stable/horse/ bolted and all that but I would say never presume that. Even if you know each other well. I have seen so many relationships become bitter and twisted because of those words. Keeping things formal doesn’t mean unfriendly but informal is always potentially a recipe for disaster
I don’t know what scheme it’s protected with but the TDS say this:
“The ICE may at his discretion at his discretion award a tenant the disputed amount without adjudication where: the deposit holder has not paid in full their TDS membership subscription; the full disputed amount has not been submitted within the required time; the tenant was not given a written tenancy agreement there is a written tenancy agreement but it does not contain appropriate reference to TDS as prescribed in the Tenancy Deposit Scheme: Rules of Membership there is either no check-in or no check-out inventory report; in the ICEs opinion the landlord/agent has unreasonably sought to delay the repayment of the deposit or the referral of the dispute; the Prescribed Information has not been given to the tenant.”
All the tenant has to do is say the mould was there at the start of the tenancy and without proof to the contrary you wouldn’t have a hope of winning.
Having said that, it’s still worth a go as the tenant may never raise a dispute or leave it too late to do so.
You will also have to consider the “cause” of the condensation. Under the Housing Health & Safety Rating System(HHSRS) introduced by the Housing Act 2004 condensation is prima facie the responsibility of the landlord. To prove otherwise you will need to show that the premises is overcrowded (not known to you) or being occupied and used unreasonably. The official governmental guidance (HHSRS Operating Guidance) states:-
“The dwelling should be able to cope with normal occupant moisture producing
activities without persistently high relative humidities. There should be provision for the safe removal of moisture-laden air during peak production. This should include extraction during cooking or bathing, either by mechanical means, or passive stack ventilation and direct venting of clothes drying facilities (whether tumble driers or drying cabinets) to the exterior.
There should be sufficient and appropriate means of ventilation to deal with moisture
generated by normal domestic activities without the need to open windows.”
If challenged, I doubt that the courts would consider that occasional drying of clothes indoors is unreasonable even if theri is an outside drying area. Also you being able to prove that the tenant is regularly acting unreasonably in their clothes drying activities may be problematic.
There is no problem in having a go so long as you have followed the requirements of the deposit legislation, but agree that without an inventory any claims for damages is unlikely to be successful.
I’ve not checked into it too deeply I must admit, but, as far as I can gather, there is not actually a positive obligation on landlords to use the mediation/dispute schemes that the deposit protection schemes offer – eg the DPS leaflet (here http://www.depositprotection.com/documents/dps-adr-process.pdf) says “The Deposit Protection Service offers landlords an Alternative Dispute Resolution (ADR) process. The service is free, can proceed once both parties have completed a Joint Deposit Repayment form, and may also be used where a Statutory Declaration for a single claim is disputed by the responding party”
If it is the perception that the scheme’s free-to-use schemes are too quick to favour the tenants (or too quick to punish the landlords) where there is no detailed check in and check out inventories, etc then the landlord may prefer to just commence small claims proceedings in the county court. Of course, this isn’t free and the landlord will have to pay court fees as the matter progresses and if the matter is allocated to the small claims track (as it should be if the value of the claim is £5000 or less) neither side will be able to recover solicitors costs.
NB Even where a claim is proceeding in court, there is still pressure applied to mediate. I don’t know if it is still done but there was a free telephone mediation service that could be arranged through the courts. If there is no free mediation available then normally each side will have to pay half the mediators fees. And with mediation there is no obligation to reach agreement (although the parties should certainly try to do so). If the mediation fails, then it fails and the matter will proceed (eventually) to a small claims hearing and the judge shouldn’t be told the parties views as to why the mediation failed or who might be ‘to blame’. Conversely, the dispute resolution service offered by the DPS is BINDING. If the landlord feels that he’s been ‘done over’, as it were, during the course of the arbitration he cannot then force the matter into court.
If Clara feels that the DPS’s dispute service will not be sympathetic to her then she shouldn’t feel that she has to use it. Of course if it goes to court the district judge might not be terribly sympathetic either but she will at least be given the chance to put in such evidence as she wants in her own witness statements (eg say that there was no damp/condensation when she lived in the property and exhibit photos from when she lived there, etc)
Incidentally on a tenancy agreement that I use I added in a clause saying expressly that the tenants should not dry clothes on the radiators but should use the tumbledryer provided. Of course, though. the landlord can’t be there every night so as to police the tenant’s compliance with the tenancy conditions ….
I might be veering off-topic here but over the years I’ve seen some tenancy clauses which say that the tenants must not smoke in the house or permit their visitors to do so. I’ve always been doubtful about the usefulness of such a clause. Smokers will generally end up smoking where they like. And if I were a smoker (which I’m not) and I was applying for a tenancy I wouldn’t have a moment’s hesitation about lying through my nicotined-stained teeth and saying I didn’t smoke if it meant I stood a better chance of getting the tenancy. Has anyone ever sought to recover a tenancy before the 6 month/12 month term was up on the basis that the tenant lied on his application about being a smoker? I really doubt it.
HHSRS would only be relevant if the local authority were to become involved; it doesn’t mean that LL is automatically liable for the damp/mould unless he can prove otherwise.
Assuming the damp/mould was not caused by LL’s disrepair falling under s.11 repairing obligations, it’s arguably the T’s liability and arguably *not* reasonable for T to dry ‘vast quantities’ of washing indoors, to the extent that it causes damp/mould.
Without a check-in inventory, Clara is very unlikely to win if the dispute is settled via ADR, so her best chance would be to opt out and bring a civil claim against the tenant. Perhaps the contractor who did the unnecessary remedial work could help in terms of evidence.
Also, I note that Clara says the T ‘wouldn’t agree’ to a rent increase. Assuming there wasn’t a fixed term contract in place, she could have served notice under s.13 Housing Act 1988 to increase the rent, and T would have had no choice but to pay (or apply to a rent assessment committee).