Help me win the case against landlord/agent.

[rafael]

I rented a flat for me and my 5 year old son back in October 2007. I informed the letting agent in writing that I had a 5 year old and was accepted as a tenant. A few weeks later a friend pointed out to me that the stairwell was dangerous - the gaps between the balusters were about 30 cm - enough for a child to fall through. We moved out and informed the letting agent and council about this. I asked that the lease be disolved and my rent returned as the flat was not safe for a child to live in. Arguing that the property had been misrepresented to me as safe for children. The landlord and agent are both sticking their heads in the sand - passing blame to the management company. The council officer did risk assessment and found 2 category 1 hazards. I am now taking the landlord to court for return of rent and costs - arguing that the agent/landlord should have made me aware of the safety issue on the stairwell - had an obligation to know whether or not any risk assessment had been done on the stairwell. The management company are responsible for risk assessment - but I think a good letting agent should know whether or not there are any safety issues connected with communal areas. I believe that consumer law covers it. The court date is in 3 weeks. Any comments would be appreciated. My son's life was put at risk - that can't be right and I believe it would be in consumer interest for me to win my case. If I lose it will mean this: that landlords and agents have no obligation whatever in respect of safety in communal areas. My child was lucky - he could have slipped through a space and been killed - all because an agent couldn't be bothered to find out if any safety checks had been carried out. Help please with suggestions about how to argue this in court!

[MrShed]

I think you will lose. From what you are saying you gave them zero opportunity to resolve the issue - you cannot "dissolve" a tenancy in the way you say.

When you say rent and costs - can you clarify? Are you suing for the rent back while you were resident in the property, or are you suing for rent whilst you were NOT in the property? What were the costs?

Surely you viewed the flat prior to moving in?

I honestly think you were hasty. Well...hasty is the wrong word, you did what any parent would do and protect their child. However, the agent/landlord does not neccessarily have to compensate you for this. IMO the only way you will have ANY chance is if the bannister falls foul of certain building regulations, and even then you will struggle as you gave them no opportunity to rectify the fault.

What was the timescale between you finding out about this danger and you moving out of the property?

[rafael]

See my answers in capitals to your points. Also, I would like to draw an analogy. If you rented a drill for 3 months and found it to have a dangerous fault - you would return it to the hirer and the 3 month hire contract would be cancelled - right? What is different in my case? I rented a property with a hazardous stairwell (as defined by the local authority) - I did not know it was hazardous when I signed the lease - I should now be put back into the position I was in before I signed. Can't you see that?

Originally Posted by MrShed

I think you will lose. From what you are saying you gave them zero opportunity to resolve the issue - you cannot "dissolve" a tenancy in the way you say. (IT TOOK THEM 4 MONTHS TO MAKE THE STAIRWELL SAFE)

When you say rent and costs - can you clarify? (RENT AND COUNCIL TAX)Are you suing for the rent back while you were resident in the property, or are you suing for rent whilst you were NOT in the property? (BOTH) What were the costs?

Surely you viewed the flat prior to moving in? (PROPERTY IS NOT MY BUSINESS - I CAN'T BE EXPECTED TO KNOW THAT THE LEGAL MINIMUM WIDTH BETWEEN BALUSTERS IS 10 CM - BUT PROPERTY IS THE LETTING AGENT'S BUSINESS - IT IS HIS BUSINESS TO ENSURE THAT HIS PROPERTIES CAN BE ACCESSED SAFELY)

[MrShed]

Rafael. I suggest you chill out before the response. I am not talking about moral or any other analogies. I am talking from my knowledge and experience of letting law. If you dont like the response, that is your perogative, but also not my fault.

I think you need to give us an absolute timeline to see if you have ANY case.

- When did you move in?
- When did you find out about the problem?
- When did you notify the landlord?
- When did you move out?
- How much rent did you pay in total?
- How much was the monthly rent?
- What did the landlord/agent say they would do regarding the problem?

Lets be under no illusions. There is ZERO legal basis for the return of any rent while you were resident in the property. Whether there is legal basis for the return of other rent I doubt, but will depend upon the answers to the above questions.

With regards your second question, I think it is completely irrelevant to say that property is not your business. It is YOUR RESPONSIBILITY to ensure that a property is suitable for your use - this includes having children resident. NOT the landlords. You are talking legally, I am talking common sense - if I had children moving into a property, I would check it prior to moving in for child safety. It is not a matter of "measurement" of the bannister - you can pretty much see from a laymans eye whether the bannister will be safe for a child or not.

[rafael]

Thanks for your comments - though I think it would be more helpful to me if someone could comment on my position that the agent fell foul of consumer law in not warning about the dangerous stairwell. Letting law assumes that a lease was fairly signed and the lease is valid - I am arguing that my consumer rights were breached because I was sold a faulty product. The contents of the lease are irrelevant to my case. Of course if the district judge disagrees with this then I will lose. But in doing so he will have to uphold the right of agents not to take seriously health and safety in residential block communal areas.

[MrShed]

I actually think this is helpful - I think it is helpful telling you the ACTUAL situation.

You want someone to tell you what you want to hear. This is not helpful IMO.

Letting law and consumer law are two distinct areas. If you want more specific detailed advice, then I would strongly suggest you answer the questions above.

You are very wrongly(and very dangerously) applying consumer law to a topic thaat consumer law does NOT apply to unilaterally. In particular you are attempting to apply SOGA which does not apply AT ALL to this situation.

Without blowing my own trumpet, I would strongly suggest that you look at my history of posts, and see that I do in fact know what I am talking about. Failing that, I would STRONGLY STRONGLY suggest that you consult a specialist letting solicitor to see whether you have a case, before you go to court and waste your own time and money.

You cannot remove your own obligations for checking the property was fit for your own purpose.

[raydetinu]

I was involved in a similar case where a child actually did fall over a baluster rail that was too low by current regulations and was severly injured! it ran and ran, expert winesses all over the place. there are rules and regulations but they are not always retrospective?
If when the rails were put in maybe that was the requirement, it is not always obligatory to upgrade!
I would think this may be the case here and an independant expert may need to advise.
I think you acted hastily, no one was actually injured, however they were put at a degree of risk. Could this risk have been managed until a solution was found. yep I think so, temporary infil panels could have been fitted or restrict access to the stairs by your 5 year old?
I think you will have an uphill struggle to win this one, but you never know!

[Esio Trot]

If you have named the agent as defendant in your claim, I am 100% certain you will lose. If you have also named the landlord as defendant then I am almost 100% certain you will lose.

If I were the landlord/agent, I would have issued a counter claim for rent to the end of the contract as you cannot demonstrate that the house was "unfit for human habitation" under landlord and tenant legislation.

From your post I guess that the balustrades you mention are the horizontal ones, and that the 12" gap is that between each one of them and the floor. This does not conform to current building standards, but would have at the time the property was built. Whilst this is a potential danger, there are many other things that also come under this category, e.g. there not being a handrail on the stairs of Victorian 2 up 2 down type properties. In this example, you can't sue due to there being no handrail, but if you did have the misfortune to fall down the stairs, the absence of one would weight heavily in your favour. It follows then that you have little chance of gaining compensation; however, if there was an unfortunate accident then you would have good grounds then.

As things stand at the moment, I can't see that you have suffered much loss. You would need to live somewhere, and doing this creates a liability to pay rent (or the costs of a mortgage) for doing this.

Part of being an adult is the ability to assess risk - particularly where minors are concerned. Thus, telling a youngster to "hold hands" while crossing a road is taking an action in response to the risk. In the same way in any building is to assess risk - I'm surprised that you were living there for some weeks in blissful ignorance and that it took a friend of yours to tell you of the potential danger.

I regret to tell you that I have no sympathy with you taking court action. However, I will be keenly interested in knowing the outcome.

[rafael]

Thanks to those of you who have replied, I appreciate it.

I should expand by saying that I letted the property for just 3 months (thank goodness!) and paid up front for 3 months as I did not want to supply refs. Had I paid 1 month up front I would have cut my losses and let them chase me for the 2 months - i think I would have had a good case for not paying.

When I take my child to school each day I do not start sniffing around the school looking for hazards, not do I check the tyre tread depth on a bus before boarding. When you are paying professionals for a service you have a right to expect that those checks have already been done. It is absurd to say that I should have done a thorough safety check on the flat and the means of access - had there been electrical cabling hanging out everywhere this would have been too obvious not to notice - but the distance between verticle balusters on a stairwell is an aspect of safety that I could not be expected to have experience of - but agents and landlords, as it is their business and they profit by it - should be aware and I believe, are obliged to make those checks. When I informed the agent in writing that I wanted the flat for me and my 5 years old - implicit in that was an understanding that the flat and access to it were suitable and safe for a 5 year old - now it turns out that this was not true - the stairwell was a death trap for a 5 year old - as the official risk assessment has proven - my signature on that lease is not worth a thing. I understand that there is nothing in tenant/landlord/letting law that can help my case - but there is consumer law which deals with the obligations of companies in respect to health and safety. There is also common law duty of care - which was blatantly lacking in my case.

Of course I have named the landlord and not the agent as defendant - I had a contract with the landlord and not the agent - though the landlord might have expected the agent to ensure that the tenant was suitable for the property - he may have a case against the agent if he loses his case.

One final thing, for now - the work was not actually carried out until 2 months after my lease expired.

I look forward to your feedback!

[Esio Trot]

I do hope that I am not sounding negative just for the sake of it.

You see, from what I glean from your post, it is made doubly difficult to pin anything on the landlord. As I understand it, the stairwell was part of the common area of the block in which your flat was situated. As the landlord would have no power over this area (and certainly would be prevented from making alterations to common parts within his lease) it would be difficult to pin any liability on him.

I await other comments with interest.

[rafael]

Originally Posted by Esio Trot

I do hope that I am not sounding negative just for the sake of it.

You see, from what I glean from your post, it is made doubly difficult to pin anything on the landlord. As I understand it, the stairwell was part of the common area of the block in which your flat was situated. As the landlord would have no power over this area (and certainly would be prevented from making alterations to common parts within his lease) it would be difficult to pin any liability on him.

I await other comments with interest.

I am not trying to pin anything on the landlord - but if you go into business - you need to be sure that what you are selling, or renting, is safe for your customer to use. If I bought a flat to let I would incorporate into my research before buying - a thorough safety check of the flat, gardens, communal areas etc. I would not want to let out a property that had any serious question marks over safety. This landlord was purely interested in the money - he was even prepared to risk the life of a young child in order to get his flat rented out.

[raydetinu]

Rafael get real, you have suffered no damages or loss. Stop whining on and on. The first person responsable for your and your childs health and safety is YOU!
And you have excerised that ability to remove yourself from that hazard, in fact sensible. but nobody is going to pay you for that!
Analogy- a worker is asked by an employer to go on scaffold that ihe considers is unsafe, he refuses for his own well being. he cant then sue the employer for asking, only if he fell of it!

[MrShed]

Absolutely agree raydet. The landlord is NOT RESPONSIBLE to ensure that a property is ok for children, that is YOUR RESPONSIBILITY as a parent!!!

For goodness sake - talk about passing blame.

[Esio Trot]

Originally Posted by MrShed

Absolutely agree raydet. The landlord is NOT RESPONSIBLE to ensure that a property is ok for children, that is YOUR RESPONSIBILITY as a parent!!!

For goodness sake - talk about passing blame.

As an aside, but in a similar vein, there was an article in our local paper some months ago concerning a young mum who was trying to get compensation from the council, threatening them that she would sue if none was forthcoming.

She was in one of the local council's parks - one which I've used and which is particularly well appointed with modern play equipment. Apparently her 3 year old climbed on some apparatus and fell 5 feet onto soft-surface tarmac - unfortunately on her head. The child was taken to hospital as a precaution as there was a possibility of concussion.

Her complaint was that the apparatus was dangerous. That she was watching her constantly from the seating area and only turned her head for a moment to talk to her friend, when her child fell. "Apparatus for a 3 year old at 5 feet is much too high. The council should have more sense. It's too dangerous for young children."

The report also showed a picture of the mum and child, and if ever there was an example of a Pram Face, this would be it. Even for the photo, she couldn't be without a fag in her hand.

I remember when I was with my toddlers at the park and they were wanting to climb on apparatus. I was there at the apparatus with them, ready to offer support if needed - not tens of feet away where the seats were. I certainly didn't leave them to their own devices while I gassed to other parents - that would be irresponsible.

Needless to say, next week's letters page was full of castigation for this lass in not supervising a child of her age.

[Aequitas]

The law is not on your side here. A tenant has no right to bring a tenancy to an end if the landlord (or his agent) has made some misrepresentation in respect of the property or is in breach of contract. The tenant's remedy is to sue for damages.

[rafael]

I agree that the safety of a child is the parent's.That is why when I discovered that the stairwell was a hazard I removed him from the property. But parental responsibility does not absolve a landlord from his obligation to ensure that his dwelling is safe for habitation.