Can this landlord sue a former tenant for damage and a flea infestation?

This is a question to the blog clinic from Henry, who is a landlord in England.

My tenant moved out owing rent, which he’s paying me back in small instalments.

We used his deposit to cover some of the outstanding rent arrears.

There was damage to the property (I have pictures worth around £1500 which should have been covered by the deposit, but which I used towards rent arrears).

I also discovered – after he moved out – that the property now has a flea infestation. I’ve had to pay £400 in exterminator costs, but the problem persists and my new tenant was trying to move in but was getting bitten – I’ve offered to pay her one month of her rental back (she paid upfront).

What’s the best course of action – at the moment, I don’t have a forwarding address.  I think he’ll pay the outstanding rent – albeit slowly.

But I’m really annoyed about losing an extra month’s rent and the damage he caused to the property. Is it worth pursuing it this through the small claims court?

My claim would be for losses due to
1. damage to the property
2. flea extermination costs.
3. loss of rental due to the severe infestation
Total = £4k

Would appreciate any thoughts

Answer

It looks as if you are entitled to compensation from your former tenant, and £4,000 is a substantial sum. However, there are a number of problems in your way.

1 You need to find your former tenant’s address

To bring a claim through the courts, you need to have an address for the defendant. This is because the court must be able to serve the court papers on the defendant and until this has been done your case cannot progress.

So if you are wishing to bring court proceedings, it is essential that you find out his address.

Or, if you know somewhere where he could be served with the court papers, for example, at a relative’s address or at his place of work, that would suffice. However, you would need to make an application to the court for leave to do this first. Which would increase your legal costs if you are using solicitors.

2. You need to assess your claim

Is the damage something your former tenant is liable for, and if so what sum are you entitled to?

Other than the flea infestation, and a reference to pictures, you don’t say what the damage is.

Any claim for compensation must prove two things:

• Liability (i.e., is it something the defendant is liable for) and
• Quantum (i.e., what sum can you claim for?)

If the pictures have been removed or damaged, in order to bring a claim for compensation, you will need to be able to prove:

a. That they were in the property at the start of the tenancy and were missing at the end.

Which means having an inventory (ideally signed by the tenant at the time the tenancy started) which lists them, and a checkout report which proves that they were missing when the tenant vacated.

b.  The value of the pictures.

A court will need to see some sort of valuation document.

You will need to do the same for any other items you wish to claim for.  Also:

3.  Is the subsequent loss of rent due to the flea infestation something you can claim for?

This would be a tricky claim.

First, you would need to prove, on the balance of probabilities, that the infestation arose during the tenancy and was attributable to the tenant’s occupation of the property. This may be easier if the tenant kept pets and there was no sign of infestation before the tenancy began.

The difficulty then is that you would need to show that the loss of rent flowed directly from the tenant’s breach (assuming you can prove that the tenant was responsible for the infestation) and that the subsequent loss of rent was reasonably foreseeable.

The tenant may argue that the property could have been treated more quickly, that the delay was caused by factors outside their control, or that the amount claimed is excessive.

I suspect you would have difficulties with this part of your claim.

4. If you get a judgement, will you actually get paid?

Obtaining a judgment is only the first step. If the former tenant has limited income or assets, enforcing the judgment and recovering the money can be difficult if not impossible.

A significant number of county court judgments are never paid in full because the defendant lacks the means to pay.

And finally

If you want to pursue this claim, the first thing is to find an address for the tenant, as without this, you can do nothing.

For example you may want to instruct a private investigator on a ‘no trace no fee’ basis.

As regards bringing the claim through the courts, given the number of different heads of claim involved, you may wish to take legal advice before starting proceedings.

The problem here is that you will need to pay the solicitors whether or not you make a recovery. If the tenant does not have much money, then it is going to be hard to recover even your outlay on court and legal fees, let alone the sum due to you.

Note also that a claim for £4,000 will normally be allocated to the Small Claims Track, where costs are not normally awarded.

Before committing to court and solicitors’ costs, it may be worth discussing the matter with a specialist debt recovery service such as Landlord Action to assess both the merits of the claim and the prospects of actually recovering any money awarded.