common residential landlord and tenant disputes · 2019. 11. 20. · • even when the tenancy has...

Common residential landlord and tenant disputes

10 April 2019

By Elizabeth Dwomoh

elizabethdwomoh@lambchambers.co.uk

Focus of the seminar

The aim of this seminar is to focus on some of the most common problems faced by tenants in respect of their landlords and to identify practical solution to these problems.

PROBLEM AREAS:

1) Tenancy deposits

2) Disrepair

3) Unlawful eviction

(1) Tenancy deposits

Common deposit problems

The most common problems faced by tenants in relation to their deposits are when the landlord:

•Fails to protect the deposit upon receipt;

• Fails to release the deposit after the end of the tenancy;

•Unlawfully makes deductions from the deposit.

Failure to protect the deposit upon receipt

S.213 HA 2004: Requirements relating to tenancy deposits

• Protect the deposit by registering it with an authorised scheme

• Comply with the initial requirements of the authorised scheme within 30 days of receipt of the deposit; and

• Serve on the tenant the prescribed information within 30 days of receipt of the deposit.

No longer necessary for landlord to re-protect the deposit or re-serve the prescribed information if this has already been done in respect of a deposit that was originally received on or after 6th April 2007, which has been renewed or became a rolling period tenancy.

Sanctions for non-compliance by a landlord

• Since 6th April 2007, if a landlord has failed to comply with his or her obligations under ss.213(3) and 213(6) of the HA 2004, a tenant can make a claim for payment of between one to three times the value of the deposit.

• The Court can also order repayment of the deposit directly to the tenant

or payment into an authorised scheme. • Even when the tenancy has ended, the Court must order the landlord to

pay between one to three times the value of the deposit to the tenant, and if so minded, the repayment of the deposit to the tenant..

• Further, even if a deposit was paid before 6 April 2007, a landlord is barred

from serving a s. 21 notice unless the deposit has been protected or returned to the tenant in full.

Failure to release a protected tenancy deposit at the end of the tenancy

Practical steps for a tenant’s recovering deposit

The tenant should:

• contact the landlord directly

• check to see if his or her deposit scheme offers ADR

• if the landlord does not consent to ADR within the scheme, consider bringing a small claims in the County Court to recover the deposit

Unlawful deduction from a protected tenancy deposit

A landlord is legitimately entitled to deduct sums from a tenancy deposit for items such as unpaid rent, cleaning and damage beyond fair wear and tear.

Practical steps for recovering sums unlawfully deducted from a deposit

A tenant should • request a fully costed itemised bill from the landlord • compare the itemised bill with the checking out inventory • request copies of the receipts for the items purchased or

service paid for by the landlord and deducted from the deposit

• put a complaint in writing to the landlord – indicating how much of the deposit should be returned

• consider ADR or a small claim

(2) An Overview of Disrepair

Tenants can bring civil claim for disrepair against their landlords if they can demonstrate a breach of a contractual or statutory repairing obligation.

Where are the most common sources of repairing obligations

found?

What 3 elements are needed to establish a claim for disrepair under s.11 of the LTA 1985?

Is there a breach of a repairing covenant?

Implied Covenant

11.— Repairing obligations in short leases.

(1) In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor—

(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

• (b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and

(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

Is the complaint caused by disrepair?

• Damp?

• Asbestos?

• Mice?

Has the Landlord Been put on Notice???

Has a reasonable period of time being given to effect repairs?

Source: Schedule to the Secure Tenants of Local Housing Authorities (Right to Repair) Regulations 1994 (SI 1994/133)

Defect Prescribed period (working days)

Leaking roof 7

Toilet not flushing (where there is

no other working toilet in the

dwelling-house)

1

Total or partial loss of space or

water heating between 31st

October and 1st May

1

Total or partial loss of space or

water heating between 30th April

and 1st November

3

Common Scenario

My property is in disrepair and my landlord is refusing to carry out any works. Can I withhold my rent???

Options...

Withholding rent?

Any constructive steps that the tenant can take?

• Reduction in rent?

• Contacting local authority Environmental Health Department?

• Undertaking work at own expense? (caution advised!)

• Claim for damages for disrepair and an order for

specific performance

Homes (Fitness for Human Habitation) Act 2018

• Came into force on 20 March 2019

• Amends fitness for human habitation provisions

contained in the Landlord and Tenant Act 1985 • The new provisions apply to dwellings let “wholly or

mainly for human habitation” and the lease is for a term of less than 7 years or is a lease for a secure, assured or introductory tenancy for a fixed term of 7 years or more

• section 9A of the LTA 1985 provides:

• (1) In a lease to which this section applies of a dwelling in England (see section 9B), there is implied a covenant by the lessor that the dwelling—

(a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and (b) will remain fit for human habitation during the term of the lease.

(1) In determining for the purposes of this Act whether a house or dwelling is unfit for human habitation, regard shall be had to its condition in respect of the following matters— repair, stability, freedom from damp, internal arrangement, natural lighting, ventilation, water supply, drainage and sanitary conveniences, facilities for preparation and cooking of food and for the disposal of waste water; in relation to a dwelling in England, any prescribed hazard and the house or dwelling shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.

(2) In subsection (1) “prescribed hazard” means any matter or circumstance amounting to a hazard for the time being prescribed in regulations made by the Secretary of State under section 2 of the Housing Act 2004.”

Landlord’s exemptions

Subsections 9A(2) and 9A(3) of the 1985 Act, exempt a landlord from liability where, for example, the unfitness is wholly or mainly attributable to the tenant’s own breach of covenant or the tenant has not used the property in a tenant-like manner

(3) Unlawful Eviction

The eviction of a residential occupier is a criminal offence under s.1(4) of the Protection from Eviction Act 1977.

What is an unlawful eviction?

S.27 HA 1988: Damages for unlawful eviction

(1) This section applies if, at any time after 9th June 1988, a landlord (in this section referred to as "the landlord in default") or any person acting on behalf of the landlord in default unlawfully deprives the residential occupier of any

premises of his occupation of the whole or part of the premises.

(2) This section also applies if, at any time after 9th June 1988, a landlord (in this section referred to as "the landlord in default") or any person acting on behalf of the landlord in default—

(a) attempts unlawfully to deprive the residential occupier of any premises of his occupation of the whole or part of the premises, or

What is an unlawful eviction?

S.27 HA 1988: Damages for unlawful eviction cont.

(b) knowing or having reasonable cause to believe that the conduct is likely to cause the residential occupier of

any premises—

(I) to give up his occupation of the premises or any part thereof, or

(ii) to refrain from exercising any right or pursuing any remedy in respect of the premises or any part thereof, does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, and, as a result, the residential occupier gives up his occupation of the premises as a residence.

What acts amounts to an unlawful eviction under s.27 of the HA 1988?

• The threat or use of force

• Changing the locks at the front of the property

• Locking parts of the property thereby denying access

• Denying a tenant the right of re-entry to the property

Remedies for unlawful eviction

The measure of damages under s.28 of the HA 1988 is the difference between:

• market value of the Proposed Defendant’s freehold interest; and

• the market value of the Proposed Defendant’s freehold interest subject to an assured short hold tenancy.

An expert surveyor may be required to ascertain the correct figure.