Keeping to the contract

[Coastfodder]

Hello,

 

Everyone..I have spent a week or so looking thro the site and have managed to find my own answers to a lot of the problems but I will tell you the whole story..

 

We started a Tenancy on a 4 bed property in June 2005..It was origanlly thro an agent but as soon as we moved in the Landlord got rid of the agent.

 

We have always Looked after the property.The heating failed on the first winter.The plumber informed us that the whole sysytum needed replacing.Our Landlady accused us of lying..The heating failed again and this time the plumber stated that he had informed the Landlady of the problem but she didn't want it to be replaced.

 

When the Tenancy was due for renewal we informed her again about the heating and also a patch of ceiling that was starting to crumble.She came to the property and took some pics and dissapeared without any input over what she intended to do..

 

Our health Visitor had been keeping an eye on the ceilings(Now bathroom ceiling is falling down thro water leakage and ceiling outside was crumbling) She informed us that the children were now at risk of harm and we should get intouch with our Landlady.We told her that she had dissapeared.HV told us to call in Enviromental health,which we did.

 

They contacted our Landlady and she visited the property.I explained about the HV visitor saying the children were at risk..as I had lost one child I was fearful of something happening to the living children..Landlady laughed at me!!!!.I asked her to leave..I said her Husband could stay and do the repairs but she should leave..The police were called and said she was guilty of goading me.

 

The repairs were not done and on the 24 Jan we recieved a section 21 notice stating she wanted us to leave bu 27th march.

 

Our Tenancy doesn't end till 27th june so we are not leaving.A plumber sealed the upstairs bath and it fixed the leak for a week or 2 but the ceilings were still crumbling..Last weekend we had water coming thro the walls again and I wrote to the landlady copingy the EH officer in.The plumber came out again and told us that he will be back.He said that the bath needs removing and a lot of work done to make it watertight but Landlady does not want him to do that.

 

Now it has been 4 months since EH came and we are no further on except we are being evicted.

 

I have let Propertys for 15 years..I have very very good references from our previous Landlords.

 

She is a first time Landlady and TBH we are to blame as well because we made allowances for the fact she had never done this before.

 

We are getting quotes for the work from the builders she sent into the property.We are thinking of getting the work done and charging her as our childen are at risk..But how would we get our money back from her..

 

Many thanks CF

[MrShed]

First things first, I would get the EH back out as a matter of priority, and get them to state whether the property is inhabitable or not. Depending upon the LEGAL state of disrepair(IE the report by EH), you then have two options IMO - take the landlord to court to enforce your right to have the property repaired, and therefore acquire a court order to this effect, or potentially you can go down the route of "right of offset" - which means that you get the work performed(with 3 quotes for each item of work) and deduct the cost from the rent. Do not perform this route without further advice, especially in this case as the work sounds substantial. This really is a case for EH, and they need to be assisting you in taking the landlord to court if so required.

[Coastfodder]

Thankyou so much for your reply..The first inspection was done by EH on 20th Nov..The landlady just uses delay tactics all the time..She asked EH officer to call us on her behalf to arrange for the plumber to come..

 

This is why we are getting the building reports done so that we can give the EH a copy and see if that will spur them on into action

 

Thankyou again for your response xx

[MrShed]

The quick way is to use right of offset - however, I am aware that this requires potentially a substantial amount of money in the first place, and this does sound like substantial work.

 

As a side note, have you paid a deposit? If so, is it in a tenancy deposit scheme? When did you last renew your tenancy, and for how long a fixed term?

[Coastfodder]

Well this is a bit of an awkward one..Our Landlady dropped the new contract round June 07 and asked us to initial the pages..we did this and gave it to her back.

 

About the same time our son was admittied to hospital for a serious operation so we forgot about the tenancy.

 

In Oct we asked for a copy as we hadn't been given one.Our Landlady said we should have taken a copy ourselves and she was very busy so would come by when she could.This took 2 weeks.When we looked at the contract we saw that it said not legally binding unless signed by both parties..There wasn't anywhere whatsoever for us to sign.Our landlady had signed and so had her witness but nowhere for us to sign.

 

I called her to tell her this but she didn't take our calls..The legal advice seems to be to treat it as a normal tenancy but landlady said its rolling tenancy..

 

Anyway..when she was here in Dec I did ask if it was in a TDS and she said she would look into it..so Im sure it isn't.

 

The tenancy expires June 08.she served us notice in Jan and said that she is using the break clause in our contract..but again the legal advice is because she is already in breach of contract then she can't use the break clause..

 

As you can see it is all very complicated

 

again Many thanks x

[MrShed]

Where is this "legal advice"? It is wrong. She can exercise a break clause regardless of condition of the property. What does the break clause explicitly say?

 

You are in a difficult legal position, as it is your word against hers that the new year tenancy even exists. There is a possibility that this eviction could succeed, depending especially upon the wording of the break clause.

[Coastfodder]

We do have a copy of the Tenancy signed by her but she does not have one signed by us..

 

This is what it says on the Tenancy

 

"Either party may terminate this agreement by serving not less than TWO calender months written notice, such notice may be served at any time but will not expire before the minimum term of SIX months has been completed from the date of commencement of the term hereof.On the expiry of such notice this agreement shall determine thereon but without any prejudice to any antecedent breach of the terms of either party."

 

She has served us notice on section 21(1) (b)which says the expiry date is AFTER 27 march 2008.But her covering letter says ON the 27th March

 

I don't know if it is any help but she downloaded the notice herself from a website RIKY - Home - , landlord information | property investment | Housing Act | Section 8 Housing Act | Section 21 Notice to quit | landlords help | letting and renting | rent arrears | eviction | possession | hmo | tenancy deposit scheme | assured shorth

 

many Thanks CF

[Aequitas]

"Either party may terminate this agreement by serving not less than TWO calender months written notice, such notice may be served at any time but will not expire before the minimum term of SIX months has been completed from the date of commencement of the term hereof.On the expiry of such notice this agreement shall determine thereon but without any prejudice to any antecedent breach of the terms of either party."

 

Any valid notice served in accordance with this clause does one thing - it brings to an end the tenancy created by the agreement. BUT, Section 5(2) of the Housing Act 1988 says:

 

(2) If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of—

(a) an order of the court, or

 

(b) a surrender or other action on the part of the tenant,

 

 

then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section.

 

So, when the fixed term tenancy comes to an end, a statutory periodic tenancy immediately comes into existence and the landlord needs to bring that tenancy to an end in accordance with the Act.

 

Is the S 21 notice valid for any purpose?

 

First, if 27th March is less than 6 months from the date the tenancy began, then clearly not and the question does not need to be considered further.

 

If that is not the case, then is the S 21 notice valid as a notice to terminate the agreement? A tricky one. A S 21 notice cannot be a notice to quit, but what you have here is not a notice to quit, but a notice exercising a contractual right. The question is therefore whether a notice that on the face of it is a statutory notice can also operate as a contractual notice. I would like it think it would not, but I am not sure.

 

That leads to the final question of whether, if the S 21 notice was valid to bring the contractual tenancy to an end, it is also valid as a S 21 notice. I do not think it can be. What was the position immediately before the notice was served? The tenancy was a fixed term tenancy that expired on 27th June and any S 21 notice in respect of that tenancy which requires possession before that date must be invalid.

 

When a landlord wishes to exercise a right to break he must first serve a notice bringing the contractual notice to an end. When he has done that, he knows when the fixed term ends and can serve a S 21 Notice. What he cannot do is use the same notice to bring the fixed term to an end and serve notice under S 21.

[Coastfodder]

Thankyou for your reply..

 

Im sure she thinks that we will be leaving 27th March..As soon as she gave us the notice she sent our nextdoor enighbour round to discuss reletting the property(he is a letting agent)

 

Our solicitor and the Council have both written to her to state they have advised us not to leave untill the end of the tenancy.

 

So far she hasn't respnded to either..

 

I don't understand how she can get us out of the property when all that we have done is to stick to the agreement..Thankyou x

[Coastfodder]

Since I posted this we have had another spate of water coming through the ceiling even though the plumber was only here a couple of days ago..

 

I left Landlady a Message but she doesn't reply.We are contacting the EH again in the morning.

[Esio Trot]

We started a Tenancy on a 4 bed property in June 2005..It was originally through an agent but as soon as we moved in the Landlord got rid of the agent.

 

Some of the advice you have received above may be wrong - mostly because exact dates are critical. "June 2005" is not sufficient for exact replies.

• What was the start date on your original tenancy agreement?
  
• Did it state an end date, or was it a fixed amount of time (e.g. "six months") or both?
  
• Was this the only agreement you have signed?
  
• Who holds your deposit, and what does your tenancy agreement say about this?

Now to the disputed agreement

• What date is it alleged to run from?
  
• What period is it for?
  
• If you did not sign, how easy would it be for the LL to forge your signature?
  
• Who was the witness on the LL's copy you have?

As far as EH is concerned, this is separate from the above. Make sure they do a HHSRS (Hazards to Health Safety Rating System) and ask for the report in writing. Once you have this, the LL can then be issued with an enforcement notice by EH if they don't put things right - the urgency of this depending on its severity.

[Coastfodder]

Hi,

The original Tenancy was from 24th June 2005 to 23rd June 2006

 

Yes this was the only one we had signed..

 

The ones drawn up by the landlady seemed to have a page missing that should have had space for our signatures but all pages are in numerical order..I hope this makes sense.

 

We initialled all the pages and the Lanlady and her witness signed but there were no sections for us to sign

 

Its states on the Contract that the Landlord holds the deposit.

 

 

The most recent tenancy runs from 28th June 2007 to 27th June 2008 and again it says in this one that the Landlord holds the deposit.

 

She would not be able to forge it.The Tenacy is 18 pages long and the signature part is on page 17.

 

Im assuming the witness is a relative as the address given is Landlords parents address.

 

The EH said it is a catorgory 2 hazard.They were going to issue and enforcement notice but on the last day of the time limit the Landlady contacted them and said she will get the work done.We then spent a further 12 months having tradesman visit to do quotes for her.

 

We told EH we had waited a month and still no repairs and was told the ladnlady couldn't do it because we were refusing access to the property.We have been able to prove this is not the case....its just been more lies sinse..

 

We have had 2 quotes done ourselves and are waiting for them to arrive thro the post..

 

Thankyou very much for your reply CF

[Coastfodder]

Quick update.

 

The EH have now said they are going to visit again with a contractor to assess the damage and then give our Landlady 21 days to repair it or they will do it..

 

As for when we leave..We are still unsure

[Coastfodder]

We have recieved a letter frm our landladys solicitor wanting comformation that we will leave at the end of the Month..Our solicitor says we must stay untill our term is up becuase Landlady is in breach of contract..This post explains the whole story

 

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/132368-keeping-contract.html

 

This is the break clause her solicitor is highlighting

 

"Either party may terminate this agreement by serving not less than TWO calender months written notice, such notice may be served at any time but will not expire before the minimum term of SIX months has been completed from the date of commencement of the term hereof.On the expiry of such notice this agreement shall determine thereon but without any prejudice to any antecedent breach of the terms of either party."

 

 

 

Our Landlady is counter suing us..and Claiming we have cause the damage in the property..Luckily we have letters,photos,statement from Health Visitor to prove we have not caused the problem..

 

We have contacted all 3 TDS and our deposit isnt with any of these..When do we inform her that we intend to take her to court..or should we just stand our ground and wait for her to take us to court??

 

I hope this post makes sense..For what its worth..its been 4+ months since the Enviromental health depratment visited..The repiares haven't been done and we still have plaster etc falling from the ceiling:(

 

Many Thanks CF

[Esio Trot]

I like to have fun whenever (but it is not often, unfortunately) I get a letter from either a landlord or tenant - particularly if relations are strained and seem to be heading down the legal route.

 

My fun is appearing to be as co-operative as I can, but raising a query. "May I ask you to clarify with your client if we must leave on the exact date of the expiry, or if we might leave earlier and be allowed a rebate of rent." on the assumption that the answer will be no, to do another letter "In view of your reply we are endeavouring to leave on the date specified. May we ask you to clarify with your client if we were unable to do this but, say, left a few days later would she be willing to just charge us pro-rata rent for the extra days occupied".

 

The game is to see how many letters you can generate from the lawyer: each one will cost their client money. The most I have generated on an issue was five. The tenant then gave up - presumably their lawyer told them the cost of their services so far!

 

So, to the letter you have received:

 

There is no need to reply. Your contract is for a fixed term. You may leave on the last day of the contract and you don't have to give notice or tell anyone - there is case law to support this. What you must not do in this case is to stay beyond midnight of the final day. If you do the owner is entitled under the Protection from Eviction Act 1977 to a minimum of four weeks written notice to end the day before your rent day.

 

Thus it is your decision. You can reply to the letter or you can ignore it. Your choice.

[Coastfodder]

Thank you so much for your time..

 

We had wriiten confirmation today from the 3 TDS companies and our deposit isn't being held with any of them..

 

I am going to be writting more letters but Im also wondering whther to make her an offer..Im wondering whether to say we intend taking lgal action about the depsoit and the disrepair of the property and offer her a chance to settle out of court..

 

We now have a copy of the builders quote for the work needed and the cheapest is £1200.The EH have hazard rated the property.She has breached the contract in a No of areas.

 

What we thought was to say to her let us have our deposit back and a months rent and we will leave..That way we would be able to rent another property..because as it stands we are broke and the only thing available to us seems to be a B and B 20 miles away from our Children's schools

Thankyou again for your time CF

[Coastfodder]

Hi Everyone,

 

I thought I would update..Our Landlady did not do the work in the end..The enviromental Health said they did not have the funds to take her to court.

 

We got a Solicitor involved who wrote to her stating that she was in breach of Contract....She did not put the Depsoit in one of the schemes... and as a result we were intitled to 3 times that amount (3x 1300)Her section 21 notice was invalid

 

We said that we would vacate the property earlier but would be taking her to court unless she was willing to make us an offer.

 

Evevntually(after lots of hassle from her) this happened and we moved into a new rental property.Just before we moved here our Ex landlady put our Deposit in a DPS scheme (where it is now)

 

We had the inventory done..There are a few little things that are wrong.(minor things ie..the cleaning compnay missed a window,) Also there is an error on the form which I have informed the Inventory company of.

 

As a result of this our landlady is disputing our claim for having the deposit back!!

 

The property has already been relet..It has been advertised by a freind of hers.The photos used are false and are not of the property.The description is false..As far as we are aware it is still empty..

 

I have asked the DPS for a single claim form to start the process of getting our deposit back..

 

But what happens now.If somebody moves into the property now then surely the repeat inventory we have been offered will not be accurate because any damage could be caused by the new tenants

 

I hope this post makes sense..Im having to rush as I have 2 young child being rather noisy..

 

Many Thanks CF

[Coastfodder]

Hi everyone,

 

well my update is that i have heard absolutely nothing from the DPS..I have called them(they said they will send a form and haven't).I have sent them 2 e-mails!!

 

In the meantime I sent my Ex Landlady a E-mail and requested she made contact so we could sort out the deposit.She did not respond to me but she forwarded the Email onto our old solicitors.5days later we recieved a letter from our old solicitor with a response from LL.Basically she is saying that she wants the ADR to deal with the despute.She has stated that if we want to speak toher then she wants correspondence address.The DPS rules suggest that a E-mail address is acceptable for this..

 

http://www.depositprotection.com/WebContent.axd?docid=d69a5f8e-fee8-4166-a539-72a788fdee8d

 

I sent another email to her yesterday..This is what I wrote..

 

Dear XXXXXX

 

I am writing to confirm receipt of your letter to XXXXXXXXXX, to which you confirm that you have my first Email dated 23/04/08

 

Some of the points you have raised in that letter are not correct.It is unfortunate that you declined the invitation for yourself or your Representative to be present at the Inventory Check-out, as I'm sure this would have saved time now with the minor details of this case.

 

The points are as follows :

 

90-The Carpet was new.Unfortunately our Daughter stood in an open pot of paint then proceeded to walk through the house.We were not able to remove the paint so we replaced the entire Beige Carpet.XXXXXXX were shown dated receipts to this fact.

 

118- we can confirm that LL did replace the light after the leak caused the electrics to short circuit

 

135-LL replaced this within a week

 

216-.We did install the laminate flooring and was informed by LL we were NOT to remove this at the end of the Tenancy.

 

511-We can confirm we did inform LL that a scorch mark was visible in the Carpet.A further scorch mark had accured and we replaced the Carpet again.A second set of receipts was shown to XXXXXXX.

 

You have also failed to respond over the points raised in my previous E-mail.Are we to conclude that your silence means you accept these points as correct?

 

As the damage to the Dinning room door was caused by the cleaning company, I felt it would be in both our interest to join forces to seek the cost of the repair from XXXXXXXXX .

 

 

 

As requested by the DPS I did make contact with you XXXXXXXX and as our experience of you has shown over the past 3 years,you do not respond.We whole heartily agree that we DO want this behind us which is why I contacted you directly and copied the other relevant parties into the E-mails.For some reason you chose to not respond .Instead you forwarded the E-mail on to our Previous Solicitor who was actually copied into the original E-mail.I am unsure what you felt this would achieve.Instead it has caused a further delay!

 

We are willing to let the ADR deal with the dispute and have every intentesion of commplying with their ruling.We feel this would be best all round but we also note on section 17 of the DPS rules that a Valid E-mail address is acceptable for correspondence and you have had this since March 2008.I'm sure you will agree that using our Email addresses allows us to include all relevant parties instantly and could potentially save weeks of wasted time in waiting for the Royal Mail.

 

I have been trying to communicate with you,but it takes two XXXXXXXX.We all have to move forward.To do this we need to communicate like adults.I request that you no longer contact XXXXXX at XXXXXXX Solicitors but communicate directly with me from now on.

 

 

As stated in my last Email we are aware that you have re-let XXXXXXX Close. XXXXXXX, I appeal to you to please fit rods between the stairs.You and I both know that they break the 100mm sphere rule and have been classed a category 2 hazard by the Environmental Health Department.I would hate for a fatality to be caused by this not being done.

 

Can we request that if a repeat inventory is required this is completed before your next Tenants take up residence.

 

Once again I have included all relevent parties for their information only.

 

I await your response.

 

With Regards

 

XXXXXX

 

What do I do now.Like the letter says.She just does not respond.Do I wait for a response(for how long) The DPS are copied into the emails that I have sent.This woman has nearly £1300 of our money and we need it back..As I have also said the property has already been re-let.

 

Can anyone offer any advice..The DPS rules are confusing me.Have I read it write when it says if she does not resond we will be entitled to all the Deposit back..

 

Many Thanks

CF

[callumsgran]

You do realise that you can take her to court for three times the deposit amount dont you?

 

Because she didnt put it in DPS when she last renewed your tenancy

[Coastfodder]

Hi,

 

Yes,we were aware of that,but the agreement was settled out of court in the end.Also on the 11th Hour our LL put the deposit into the DPS scheme knowing full well that we were leavingin a matter of days.

 

She was supposed to repay it to us as part of the agreement.We have brought this up with the 2 sets of solicitors that dealt with the case and they have now said its up to us to sort it out as its not worth them fighting it for us when the DPS have their own adjudicators.

 

CF