Deposit not protected, tenancy ended as flat was partially uninhabitable

[shikha]

Hi,

 

It is difficult to write the whole incident but I will write to the point and any kind of help and input will really be appreciated.

 

My 2 bedroom flat was flooded with sewage water on 2nd Jan, 2011 and 2 rooms were fully flooded and cleaners and insurance company declared it uninhabitable (though living room was not flooded as I was there and water did not enter in living room), 4 flats in same floor were flooded, so it was definitely not LL fault or my - tenant fault, this was caused by community living in that building which has 70 flats, so can not blame anybody in this case.

 

I lived with my friends for initial 2 days and then moved to a guest house and payment was made by my landlord’s insurance but only for around 3 weeks. (I paid for initial 2 days but I got that back from my LL insurance)

 

Flat was not fixed during this time and my landlord then wanted me to end the contract (because it may take several weeks before flat will be fixed), I had no place to go and all my stuff was still in the flat, During this time I also started looking for new accommodation as well as some other cheaper alternative accommodation and found one but that was not available till 12th Feb, 2011. On 14th Jan I gave him notice of 4 weeks, told him that tenancy will end on 14th feb as 4 weeks of notice was required.

 

I used to pay rent on 20th of every month, and before 20th Jan I came to know that my landlord or his insurance company is not ready to accommodate me anywhere, I called my LL and told him that I am not paying rent because

1) you or your insurance company is not providing me an alternate accommodation

 

2) There is a clause in my tenancy agreement -

(4.2) the Landlord will return to the Tenant any rent payable for any period during which the Property may have been rendered uninhabitable by fire or any other risk which the Landlord has insured

 

on 25th of Jan I vacated guest house and went to my friend's place, I needed accommodation for another 3 weeks as new house that I found was not available before 12 th Feb, 2011. After lot of discussion with my spouse we decided to go back to same old flat and started living in living room (rest of 2 bedrooms were uninhabitable), we are a couple and 2 children (4.5 years and 8 months) as we found it extremely difficult to live anywhere else because of access to kitchen and kids were not adjusting well. Before moving back I informed my LL as well as his insurance well in advance that please please arrange some alternative accommodation or else I may move back. I thought of moving to a hotel but by that time I already spent good amount money for initial accommodation, packing , moving , taking time off from work etc that I did not want more financial exposure.

 

There are two problems here –

1. My landlord expects me to pay full rent for last 3 weeks, though I was not able to make full use of property, moreover I moved to flat because I did not have any other option left. Agency claims that insurance was ready to accommodate me till 12th of Feb but that was not true as I have emails communication from them, basically either agency is lying or LL misguided him, I have written proof of it in form of emails, which I provided to agency and he kind of agreed on phone that LL should pay me all deposit back in such case.

 

2. My landlord/agency never protected my deposit till 4 months after I paid it to agency, who then paid it to landlord. I chased them after 4 months and they said they will do it but I never got nay kind of communication from them and I checked with all deposit schemes and it is not protected anywhere.

 

Agency is not ready to help me; they initially said I should get back my deposit in full and now asking me to speak to landlord directly.

 

Please suggest, is it worth going to court, if yes are they two separate issues? My tenancy has already ended on 14th feb, LL has not paid me deposit back as we have not been able to agree to how much he should return, I even offered him to keep i/3 of rent just to close this matter but he wants to take full rent.

 

I did not mention other problems like issues in contacting LL etc and no reply from him as they can not be proved in court.

 

I also visited CAB today and lawyer suggested me to file a court case for not protecting deposit.

 

 

Thanks in advance

[rebel11]

Hi sh

 

Welcome to CAG

The guys will advise as soon as they are available.

[shikha]

Yes, I am really looking forward to some advice here, It is so difficult to explain in words as what I went thru for those 4-5 weeks, Thanks.

[rebel11]

Theres good info on the Shelter webiste in the meantime:- http://england.shelter.org.uk/get_advice/renting_and_leasehold/rights_and_responsibilities

[MrShed]

OK well first things first - yes of course they are two seperate issues. There are plenty of posts re: non protection of deposit so I wont address that in detail here.

 

The other situation is, quite frankly, a mess - and (being very honest here) not just due to the landlord. I understand why you have, but you have basically stated one minute that you are not paying rent due to the property being uninhabitable, then the next you have moved back in and inhabited the property. You cannot have it both ways I'm afraid.

 

You absolutely have my sympathies, and I probably would have done the same in your situation - but that doesnt entitle you to live there rent free. You could try and negotiate a reduction in rent for the last month, but ultimately only a court could decide on the level of reduction - it certainly wouldnt be 100%.

[mariner51]

Why return to a property that had been rendered unfit for human habitation by sewage flood with 2 children, one an 8 month old baby?

[shikha]

Yes I know I should not have moved to property that we deemed has uninhabitable, I had no intention to move back and it was my last option. As I said before I was looking for new one which I found so I paid £2500+ there for deposit and initial rent and obviously it was not planned move at all and I did no keep money for this, spent £360 for staying in hotel from my own pocket, moving my stuff, eating outside etc etc. Since my landlord or his insurance was not prepared to pay for my accommodation for more then 2 weeks and flat will not be fixed many weeks (8-9 weeks or even more then that) so only choice was for me to live in a hotel, which will cost me at least £100 per day for family room, then another £20-25 for eating outside, it was all coming more then £2500+ for 3 weeks before I move to new house.

 

This was too much money for me to spent and more over we had lot of problems because of not having kitchen, Since we knew living room was not flooded and we had kitchen in it, staying with friends for such a long period with kids was also impossible. So we decided to move back, trust me it was not an easy decision for me to take.

 

I have already offered my landlord one third of rent but he is just not replying, during all this mess his behaviour was very odd, he was just killing time, he wanted me to just vacate flat asap.

 

 

OK well first things first - yes of course they are two seperate issues. There are plenty of posts re: non protection of deposit so I wont address that in detail here.

 

The other situation is, quite frankly, a mess - and (being very honest here) not just due to the landlord. I understand why you have, but you have basically stated one minute that you are not paying rent due to the property being uninhabitable, then the next you have moved back in and inhabited the property. You cannot have it both ways I'm afraid.

 

You absolutely have my sympathies, and I probably would have done the same in your situation - but that doesnt entitle you to live there rent free. You could try and negotiate a reduction in rent for the last month, but ultimately only a court could decide on the level of reduction - it certainly wouldnt be 100%.

[shikha]

Yes I know I should not have moved to property that we deemed has uninhabitable, I had no intention to move back and it was my last option. As I said before I was looking for new one which I found so I paid £2500+ there for deposit and initial rent and obviously it was not planned move at all and I did no keep money for this, spent £360 for staying in hotel from my own pocket, moving my stuff, eating outside etc etc. Since my landlord or his insurance was not prepared to pay for my accommodation for more then 2 weeks and flat will not be fixed many weeks (8-9 weeks or even more then that) so only choice was for me to live in a hotel, which will cost me at least £100 per day for family room, then another £20-25 for eating outside, it was all coming more then £2500+ for 3 weeks before I move to new house.

 

This was too much money for me to spent and more over we had lot of problems because of not having kitchen, Since we knew living room was not flooded and we had kitchen in it, staying with friends for such a long period with kids was also impossible. So we decided to move back, trust me it was not an easy decision for me to take.

 

I have already offered my landlord one third of rent but he is just not replying, during all this mess his behaviour was very odd, he was just killing time, he wanted me to just vacate flat asap.

[MrShed]

In which case, only a court can decide on what is a reasonable deduction.

 

But the issue is, you moved back in after declaring the property uninhabitable, without negotiating a reduced rate prior.

 

As such, a court may well deem you liable for the entire amount.

 

Your option by the way should have been a hotel, and charge the landlord for the cost - insured or not, he was liable.

[shikha]

My landlord refused to co-operate, He refused to pay for anything, he said he is not responsible for finding me any accommodation. When I asked him where shall I go when flat was flooded with water, he said he don't know, So I paid from my own pocket initially and lived with my friends. I kept on pushing LL and loss adjuster to at least tell me how long it will take before I can move back to flat but I never got any proper answer, LL always he doesn't know and loss adjuster said it may take many weeks.

 

I told my LL clearly on phone that if you or your insurance do not arrange any accommodation for me then I will go back to flat and will not pay you any rent. He said he will get back to me but he never came back.

 

Does this clause in tenancy agreement not help me in getting my rent back from him:

 

(4.2) the Landlord will return to the Tenant any rent payable for any period during which the Property may have been rendered uninhabitable by fire or any other risk which the Landlord has insured

 

He can argue that I should not have move back to flat if it was uninhabitable, but why did he not get it fixed in 3 weeks when I was away, was this not his responsibility to either get it fixed OR arrange for an alternative accommodation.

 

I also want to understand what responsibility does agency has here, I paid deposit to agency in the beginning who then paid it to LL, and as I said earlier it was never protected. Does agency has no responsibility here, I also have email record where I asked agency to get LL to protect my deposit as it so difficult to contact him.

[MrShed]

You cant use that clause as you proceed to inhabit the property.

[shikha]

So basically I should have lived in a hotel paying from my own pocket and then claim it against my landlord who told me clearly that he is not going to pay me a single penny other then what his insurance company will pay and loss adjuster told me clearly that it is LLs insurance and it only protect his interests and not that of tenants.

 

In simple words they told me we are giving you 2 weeks time and accommodation, flat will not be ready by that time in any case and I should find an alternate accommodation and end this tenancy agreement, this is exactly what my LL and his insurance wanted because if I decide to end then insurance will cover my LLs loss of rent which was much cheaper then accommodating me in a hotel. This all does not look fair to me at all as I was indirectly forced to end tenancy agreement. If I would not have ended it and waited for 10 weeks for flat to be fixed, I would then be living in a hotel for that length of time with my kids without access to kitchen paying from my own pocket lot of money.

 

How can LL get away so easily in such a situation, moreover he never protected my deposit even after my tenancy ended.

 

I am sure law can not be so against tenant in such a situation, Please suggest me if there is any point in taking any action against LL or I should just take whatever money he is giving me back and ignore rest.

[mariner51]

Shikha, in #1 you accept sewage flood was mot resp of LL. What did you mean it was due to community living in that building of 70 flats? Was your LL lease or freeholder of your flat? How old is the block of flats? Does LL rent many flats or just 1 or 2?

IMO the law is not against Ts to favour LL, just the opposite and makes little distinction between prof & hobby LLs.

You appear to have a case against LL om a number of grounds, but as MrShed suggests outcome may not be 100% in your favour.

Best course would be Small Caims action to recover temp accom costs, which may be partially offset by any unpaid rent due, return of deposit, failure to protect deposit during T. The LA is not liable IMO but if approached at time they may have been able to rec alt accom available for short term eg off season holiday let.

You were wrong to expect flooding repairs could be completed in 3 weeks, it would take that to dry out the property before any remedial repairs. The LL was also at fault, but like you may not have had sufficient contingency funds until liability could be determined and an insurer paid out.

 

I wish you luck in any small claim and let us know the outcome

[shikha]

Yes flooding was not his responsibility as he does not live there, Though flat just on the top of my flat is also owned by him and rented. Obviously this problem was caused by tenants or owners living in that building. This is what loss adjuster told me, he said it is not possible to find out who is responsible for this so difficult to recoup any damage caused to my stuff in the house, which is understandable and am not claiming for that at all.

 

Landlord knew this from day 1 that insurance is not prepared to provide me accommodation for more then 2 weeks, but he said he can not do anything about it. He rather used me and my time to explain to loss adjuster as what happened, he did not even turn up.

 

I agree that repairs can not be done in 3 weeks, but LL knew that so is this not his responsibility to provide me with alternate accommodation. This is what I am trying to figure out, if LL was not responsible for putting me elsewhere then to be honest, I will consider whatever he done as favour and will not take any action against it, I know for sure he has not taken any financial hit as he did not spent any money for my accommodation, he rather asked me to do that. I expected him to do that and then claim it from his insurance.

[shikha]

I checked with solicitor and local council and they both have confirmed that if you decided to go back to that property because you had no other option and property was uninhabitable - This does not automatically make property inhabitable and rent was not payable in such a situation.

 

Only time I could have been at fault would be if my occupancy of property caused problems in landlord for repair works (provided he was offering me alternative accommodation which obviously was not the case)

[MrShed]

I have to disagree with the solicitor and the council.

 

But they are (well the solicitor anyway) proper legal professionals so you are right to take their advice over ours.

[shikha]

Yes solicitor is a qualified housing solicitor, Though he said that LL has a point to argue that I went back to that flat but I can not be held liable to pay rent as per clear T&C of contract. He said most likely reason why LL insurance did not accommodate me was because LL may not have sufficient cover but as far as judge is concerned he will look into facts which are tenancy agreement clause and the fact that flat was declared uninhabitable by insurance and cleaners. Fact that I continued to live there is secondary.

 

Fact that I informed my LL 2 weeks before that accommodation is only arranged for 2 weeks, expects rent for a place which is uninhabitable, also does not provide alternate accommodation, non protection of deposit - all of it makes my case very strong.

 

My LL has finally started replying to emails since I said I wish to raise a dispute but now wants to speak to Loss Adjuster as if they are happy to reimburse him. Lets see what happens.

[MrShed]

In which case I can only wish you the best of luck, and that I hope that the advice you are receiving is sound.

 

Obviously, I feel unable to advice myself anymore as you have a qualified legal professional giving differing advice, and it would be wrong of me to tell you not to follow that advice.

 

Keep us posted.

[shikha]

I will keep you all posted.

[shikha]

Problem resolved, LL agreed to pay me back my deposit as I suggested him to deduct one third of rent for the period I stayed there. I think his insurance has agreed to pay him any loss of rent. Ideally he should have given all deposit back but that's ok as I used his flat in what ever condition it was so 1/3 of rent is ok.

Thanks for all advice.