Date 25 October 2011
It is a common complaint from tenants that when they move into a property that it is not in the state of repair and condition that they expected or were promised by the letting agent. The problem is, once tenants have entered into their assured shorthold tenancy contract, they are committed for the duration of the term and the problems which are often encountered are not sufficiently serious to entitle them to terminate.
I was asked to appear on BBC Three Counties Radio on 25 October 2011 to discuss one such case (Listen to the show on BBC iPlayer here). The tenant had taken up occupation of a property in Luton, only to find that the shower worked intermittently and the cooker hood extractor/extractor fan did not work at all. The latter was a real problem because the tenant cooked a lot of fried/fragrant food and this affected the entire living space in the open-plan flat.
The tenant had asked the landlord for a partial refund of the rent he had paid until remedial works had been undertaken to correct the problems. As usual, the landlord refused to budge. In this type of case, a sensible approach for a tenant will be to look at the tenancy agreement and to consider exactly whose responsibility these defects are. While I would ordinarily expect such repair and maintenance issues to be a landlord's responsibility, particularly the hot water installation which with the heating installation the landlord is legally required to maintain, it is not uncommon for the landlord to try and pass all liability for appliances at the property onto the tenant.
On the basis that the landlord is responsible, the next thing to consider is how serious the problem is and to try and make a reasonable estimate as to the extent to which it has affected the use and enjoyment of the property and for what period. Essentially, the landlord has contracted to provide the tenant with a property in a certain state of repair and condition and should the property fall below the required state of repair and condition, then the basic proposition is the tenant should not have to pay the full amount of rent.
Care should be given to check to make sure that there is not a "no deductions" clause in the tenancy, as is often the case, which would prevent the tenant paying a lower rent to reflect the disrepair. However, even where such clauses exist, a tenant may still make an equitable deduction and this places the onus on the landlord to take proceedings to recover the perceived rent shortfall.
The final concern is the deposit. Most residential assured shorthold tenants will have paid a deposit to their landlord as security for the performance of their obligations throughout the term. At the end of a term, if the landlord considers there are arrears of rent resulting from the underpayment during the period of disrepair, then the landlord will submit its evidence to the relevant Tenancy Deposit Scheme, with which all landlords are now required to register deposits held under assured shorthold tenancy agreements, claiming that it should be allowed to offset these rent arrears from the deposit. It would be then be for the tenant to prove its case in relation to the disrepair and to justify that rent deduction. It is, therefore, essential to keep detailed evidence (particularly photographic) of the issues faced by the tenant which justified the deduction from the rent.
It is important to make sure that the chosen level of rent deduction accurately reflects the loss of amenity suffered by the tenant. This could be a difficult judgment call to make especially where, as far as the tenant is concerned, the breach of contract is serious because of their particular way of living. However, unless the landlord was advised before the tenancy was entered into or it was a specific term of the tenancy agreement that the tenant had a particular liking for cooking fried/fragrant foods which would require an extractor fan to be fully operational, then I do not consider it would be prudent to make any larger deduction than would be the case for a tenant who did not have such a requirement. There are rules on when "special damages" can be recovered and in the normal course of matters, I would not expect this specific circumstance to qualify.
You can hear my discussion on the radio by clicking on the link here.
If you would like more information or advice relating to a specific matter, please do not hesitate to contact Chris Alexander on 01727 798042 or by email at chris.alexander@salaw.com or any member of the Property Litigation team.
© SA LAW 2011
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