Section11 and 21 Question

[westendwendy]

Could someone give me a bit of advice on what recourse I have in the following situation,it's a bit long so please bear with me.

 

My Grandaughter had an assured shorthold tenancy that expired in March 2011,no new agreement was signed so I understand that it would become a periodic tenancy, giving a landlord the right of repossession with two months notice.

 

At the beginning of June her boiler broke down (This is where it gets a bit complex).She informed the Letting Agent and they sent a gas engineer to the property who condemned the boiler so the Letting Agent informed the Landlord that it would need to be replaced.

A few days later the Landlord,unbeknown to the Letting Agent sent round another engineer who declared the boiler safe and removed the condemned notice.

I was told and, as I am guarantor on the property I spoke to the Letting Agent to express my concern and they sent out another British Gas engineer who promptly condemned the boiler again!

This part of the problem I have taken up with British Gas as in the space of two weeks I have two condemned notices and a safe gas certificate in a sandwich which I know cannot be right.

 

However,at the end of all of this, the Landlord then agreed to replace the boiler - result - or so I thought.

 

I waited patiently for another two weeks,bearing in mind that my Grandaughter has an eighteen month old baby and no access to heating or hot water.

 

Two weeks ago no less than four quotes for a replacement boiler were sent to the Landlord and after a great deal of difficulty in actually contacting her the Letting Agent was finally told that the Landlord had agreed to have a new boiler installed by British Gas.

Having become rather cynical about all of these promises I rang British Gas who said that they did have a quote on their records but it had not been accepted and no installation date had been given - back to square one.

 

In desperation we went along to the local council who advised me that under Section 11 of the Housing Act they could order the Landlord to do this necessary repair although he did warn me that under Section 21 my Grandaughter could be issued with a notice for possession.

 

Sure enough on Saturday morning, a Section 21 order was issued.

 

So, at the end of all of this, it seems quite obvious that the Landlord had no intention of replacing this boiler and when things got difficult they took the easy way out and issued this notice.

 

The rent on the property is up to date and it has been kept in good order.

 

I realise that the Landlord is within her rights to issue this notice but do I have any case for compensationl for the fact that these necessary have not been done for almost two months.

 

Any advice would be appreciated.

[Ed999]

Note for regular users: This posting is my usual commentary on Disrepair.

 

 

My comments only apply if the premises are entirely within England and Wales, and your grandaughter was granted a shorthold tenancy (under which she - and her spouse/partner/children, if any - have exclusive use of a seperate dwelling, which is not shared with another tenant nor with the landlord), and she was over 18 years of age when the tenancy was granted, and the rent is less than £2,083 per month.

 

This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation.

 

In every case, the landlord can evict you by giving you 2 months notice, but it will take him 3 months in all to get the necessary court order for your eviction.

 

 

Disrepair

 

Only the court can decide the outcome of each individual item of alleged disrepair. All we here can do is summarise some matters which you might usefully invite the court to take into account.

 

 

If there is disrepair, the tenant might be entitled in law to sue the landlord for damages (i.e. compensation) for the disrepair.

 

Read this FAQ - Disrepair in privately rented accommodation

 

In summary, section 11 of the Landlord and Tenant Act 1985 imposes a statutory obligation on the landlord to keep the following in good repair and in proper working order:

 

• the structure and exterior of the dwelling, including drains, gutters and external pipes;

 

• the installations for supply of water, gas, electricity and sanitation (including basins, sinks, baths and toilets); and

 

• the installations for space heating and water heating.

 

The landlord can't ask the tenant to pay (e.g. out of any deposit) for the cost of repairs which section 11 requires the landlord to do.

 

The landlord's obligation under section 11 is to keep the property in its initial state of repair, i.e. the state it was in at the start of the tenancy, not to put it into good repair. Thus there is NO statutory obligation to improve it. See Alker v Collingwood Housing Association [2007] EWCA Civ 343.

 

Hence the Act does not impose on the landlord a general repairing obligation (i.e. his obligation is only to repair those items listed in section 11); nor does it impose an obligation to carry out improvements.

 

 

West and Smith's Law of Dilapidations contains much useful guidance, especially in Chapter 3.

 

 

The landlord is not liable until due notice of the disrepair is given to him (O’Brien v Robinson [1973] 2 WLR 393, House of Lords).

 

And if a repair is carried out within a reasonable time, there is no breach of contract, so there is no right to compensation.

 

 

If you intend to sue, you must follow the required steps in the Pre-Action Protocol for Housing Disrepair Cases. You will normally need to pay a Solicitor to deal with these steps, because they are quite unnecessarily over-complicated.

 

 

How long is reasonable?

 

In one case a judge decided that a week was a reasonable time for a landford to repair - in that instance - a central heating boiler.

 

He based his decision on what an owner-occupier can expect with regard to fixing his own boiler, presuming that a contractor may not be available straight away, that someone has to be indoors to let the contractor in, and that the contractor may have to order the necessary spare parts.

 

The judge said a shorter time than 7 days would not be reasonable, as the landlord could not be expected to perform better than he would for his own home.

 

http://www.consumeractiongroup.co.uk/forum/tenants/122808-boiler-safety-check.html

 

The principle that the landlord must act as rapidly as he would in similar circumstances with his own home is of wide application, not limited merely to central heating.

[Ed999]

Gas Safety

 

The landlord must provide the tenant with a copy of the gas safety certificate for the property within 28 days of the tenancy commencing.

There is no legal requirement to have a gas safety check done prior to the beginning of a tenancy, but there must be one always in place, and it must be renewed each year.

 

If the premises have a mains gas supply, do not allow entry to any workman - whether claiming to be a "builder", "plumber", or anything else - unless he produces a Gas Safe Register ID Card.

 

And if the premises have no Gas Safety Certificate, register a formal complaint with the Health and Safety Executive (HSE), who will immediately prosecute the landlord. You can use this link -

 

http://www.hse.gov.uk/gas/domestic/faqtenant.htm

 

Alternatively, here is a webmail link direct to the HSE, to make a formal notification that there is no CP12 Gas Safety certificate -

 

https://extranet.hse.gov.uk/lfserver/external/lgsr1

 

 

The Gas Safety (Installation and Use) Regulations 1998, section 36 (landlord's duties), is set out at -

 

http://www.legislation.gov.uk/uksi/1998/2451/regulation/36/made

 

NB: The regulations apply in England, Wales and Scotland.

 

The issue of a Gas Safety Certificate confirms that the entire gas installation - boiler, fire (if fitted), gas hob / cooker, pipework, meter, earthing, safety emergency controls - are all working correctly as defined in the Gas Safety (Installation & Use) Regulations.

 

 

I don't think the lack of a valid Gas Safety certificate would make a property "unfit for human habitation".

[westendwendy]

 

Neither do I.

 

The reason I am following this up with British Gas is the fact that a British Gas engineer condemned this boiler but a few days later a registered Corgi engineer who holds a Gas Safe register ID can overrule the original engineer.At the third attempt a senior inspector from British Gas condemned it again.

I have already dealt with this part of it by sending all of the details to British Gas and am awaiting their response.

 

This is a completely seperate matter from the lack of repair and not to be confused with same,namely the lack of repair for over a month when the property is occupied by a young Mother with a child of eighteen months old.

[Ed999]

The reason I am following this up with British Gas is the fact that a British Gas engineer condemned this boiler but a few days later a registered Corgi engineer who holds a Gas Safe register ID can overrule the original engineer.At the third attempt a senior inspector from British Gas condemned it again.

I have already dealt with this part of it by sending all of the details to British Gas and am awaiting their response.

 

This is a completely seperate matter from the lack of repair and not to be confused with same,namely the lack of repair for over a month when the property is occupied by a young Mother with a child of eighteen months old.

 

 

This is NOT a tenancy issue.

 

If you intend to enter into a dispute with a boiler engineer, that is not a dispute with the landlord. If you sue the landlord, that is a tenancy matter, but a claim against an engineer is a separate dispute as the engineer is not a party to the tenancy agreement.

[westendwendy]

[/quoteThis is NOT a tenancy issue.

 

If you intend to enter into a dispute with a boiler engineer, that is not a dispute with the landlord. If you sue the landlord, that is a tenancy matter, but a claim against an engineer is a separate dispute as the engineer is not a party to the tenancy agreement.]

 

 

 

This is a completely seperate issue that I am already dealing with it,my apologies if I have confused the issue but this was merely to show what I now consider to be delaying tactics by the Landlord,a thought that has been echoed by the Letting Agent involved.

 

 

The issue that I need to address is the length of time that the Landlord has been delaying the installation of a new boiler after being told that the boiler was condemned bearing in mind that this has been going on since the beginning of June.

 

Sending in a second engineer after the original engineer had condemned the boiler - DELAY

 

Third engineer condemns boiler

 

Landlord agrees to install new boiler,four quotes rejected - DELAY

 

Informed by Landlord that she was waiting for installation date from British Gas

 

Phone call to British Gas who have knowledge of quote but it had not been accepted by Landlord - DELAY and downright lie.

 

Almost two months later - still no boiler,a very apologetic Letting Agent and a Section 21 notice.

 

I understand that there is no redress against a Section 21 and accept that but feel there should be a way to compensate my Grandaughter for the way that the Landlord is seeking to avoid her responsibilities under Section 11 with regard to the lack of an adequate boiler.

[mariner51]

At no time has OP suggested there is not a valid GSC in place and a GSC would not detect some gc/h faults except eg appliance gas leak. There is no GSC requirement for regular boiler service.

Unless local council housing officer issues a stat rectification notice, with time limits, the LL has no additional incentive to comply.

Is it a gas combi boiler? I thin GasSafe engineers do not issue 'condemned' notices, only 'prohibition to use until rectified. This can be lifted by a qualified second opinion. I would suggest OP directs her attention to the second boiler inspection engineer reasons for voiding the prohibition Notice and to BGas for issuing it. BGas is a private profit-making company with several reported cases of engineers 'condemning' gas apploances to gain orders for replacement. The OFT take a dim view of similar sales pitches. Equally LL benefits by overturning such P Notice.

I would suggest any owner-occupier would be hard-pushed to seek 3 rec quotes & replace the boiler with a functional system within 7 cal days of prohibition notice, esp if purchased from BGas.

Whilst I appreciate g'daus predicament, most occupiers have alt means of heating water & space heating, sh is less essential this time of year.

IMO any compensation claims should be decided by Court.

[Ed999]

I would like to make the point that I am not qualified - none of us here are qualified - to decide which of the various engineers reports on this particular appliance is accurate.

 

It is therefore completely impossible for any of us to judge whether the appliance is really faulty.

 

Without that knowledge, we can't possibly offer you any useful help.

 

 

All I can say is that if a central heating appliance stops working in winter then an ugent repair should be carried out within a week of the tenant reporting the fault, and if the repair takes longer than that then the tenant has grounds, in law, to sue for compensation for breach of the landlord's statutory duty under section 11 of the Act.

 

This is the only court case I've come across that addressed how long is reasonable, but there may well be others.

 

The tenant has the usual six years in which to start a court action, so can do so after the tenancy has ended.

 

The compensation is perhaps not likely to exceed the rent; i.e. if the heating is off for 6 weeks, for example, then a sum equivalent to 6 weeks rent is probably the very most that would be awarded in damages. It could easily be less than that, especially if the heating is off during the warm months of summer.