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Tenant suing landlord: misrepresentation/concealing / illegal eviction


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Hi everyone,

My case is turning quite complex and I would appreciate any support anyone has for me.

 

I will try and lay everything out as clearly as possible...

 

1) Viewed a property on the 21st of October, and noticed some issues with the property (cracks on the outside walls), we asked the estate agent who said it was just “common shrinkage”. As the current tenants were in with furniture / laundry around we didn’t see the full extent of this.

 

2) The following week we decided to make an offer on the property, and stated that “this offer is contingent on the following: …”. Our contingencies included: a professional clean, painting over some obvious large internal cracks, resealing mould in bathroom and cleaning the garden. The landlord confirmed in writing to do the contingencies before our move in date. We also asked for an inventory, and received a list of items, before going ahead with putting in our deposit etc.

 

3) Upon moving out of my rented flat and into the property 6 weeks later (25th of November), we discovered that 1) no work that our offer was contingent on had been completed and 2) Two 12L dehumidifiers had been placed into the bedrooms (RRP: £139.99), alongside 9x mould absorbency gels dotted around the flat, indicating that there was a mould / damp problem in the flat (neither the dehumidifiers or gels were in the flat advertisement, nor were they present when viewing).

 

4) I have severe Asthma and a mould allergy, and my boyfriend has also been to hospital with a mould allergy in the past, so obviously had we known there was an issue we would not have made any offer on the flat.

 

5) We immediately got in touch with the estate agent in writing, who stated the dehumidifiers were there upon viewing (not the case). The dehumidifiers were also not included in the inventory we received (although that included kettle/toaster and other small appliances). Irrespective of that none of the work the landlord said they would do was done. In addition, I immediately begun suffering from my allergies in the flat due to mould / damp (asthma, hives etc).

 

6) Once we were in the flat without the previous tenants’ belongings, we began to see many more issues in there that were concealed by the previous tenants furniture and items on walls (e.g. cracks in internal walls that were concealed) as well as many probable hazards with the flat (e.g. excessive cold, windows not shutting properly, suspected subsidence and suspected penetrative damp / mould).

 

7) We got in contact with the estate agent the evening we moved in. The estate agent denied all of the above and stated that the dehumidifiers were there upon viewing (they weren’t). There was some back and forth over the next 24hrs but the consensus from the estate agent and landlord was that nothing was wrong with the flat and that we were not misled. We asked to know what would happen with the flat and the estate agent told us that landlord “believed and understood the property was in a fine state of repair from the outset”.

 

8) After moving in on the Saturday the 25th Nov, and getting nowhere with the estate agent/landlord we decided for our health (mine especially – I had gone through a full inhaler and multiple antihistamines in the 24 hours I had been there) to leave the flat as we realised we had been sold a lie, it was clear the landlord wasn’t going to do anything and we could not stay due to our health.

 

9) We moved our belongings into storage at the earliest opportunity (Monday the 28th Nov) and went to stay with family so we didn’t have to live there and struggle health wise. We also received an email from the estate agent that the landlord was going to re-let the property with a different estate agent and that we would get 24h notice before any viewings take place. That email was the last we heard from either the landlord or the estate agent.

 

10) 5 days later we went back to the property and realised we had been locked out (they had used a lock to which we were not provided a key) so could not gain access to the property even if we did want to remain in the contract.

 

11) We also realised the landlord had been negligent on a number of other things: Hadn’t given us prescribed information on the deposit, had put the deposit in the wrong scheme (i.e. not the one they put in our AST), we had no gas safety certificate, and there was further misrepresentation (said there was a fridge freezer and chest freezer, there was neither).

 

12) We tried to contact them and were ignored. Finally, we sent a pre-action protocol letter outlining our claim and restating that we were open to negotiate rescission of the contract and our monies paid back. This was ignored.

 

13) 14 days later we filed a court claim against the landlord which included all the money we paid and damages (around 7k) and also the fines for them not giving us the proper prescribed information (£6.6k) so our case is currently in the fast track (we found out after this may not be the best thing).

 

14) The landlord is now defending and counterclaiming (we are waiting for the details of their defence and counterclaim in the post but assuming this is for loss of rent up to the new tenant move in date, irrespective of the illegal eviction).

 

15) One last point is that the MCOL apparently made a clerical error and accidentally discontinued our claim on the 17th of Jan without telling us, and we spent the last week or so reinstating it.

 

I am now unsure of what our next steps should be so any advice on what you think we should do would be hugely appreciated.

 

Thank you all!

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hi and Welcome to CAG

 

 

I have moved your thread to the appropriate forum ( Residential and Commercial lettings/Freehold issues Forum) for advice...please continue to post here to your thread.

 

Regards

 

Andy

We could do with some help from you.

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Forget about the 6k for putting the deposit in the "wrong scheme".

As long as it was protected in one of the recognised schemes, the LL did protect it as far as i understand.

He should have sent you the info within 30 days, but I'm not too sure you can claim for this failure considering that you left and had no more contact with him and letting agent.

Your claim sounds reasonable about being misled, but you can only claim for actual loss.

Did you lose 7k?

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Hi, thank you for your reply!

Ok - we sent the deposit over before we moved in, if that makes a difference?

7k is probably low balling, as we had to take time off work and we have receipts for everything, including having our belongings in storage since November 27th (we haven't claimed for anything we don't have receipts for). We also have not claimed for things like emotional distress etc.

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We also have not claimed for things like emotional distress etc.

 

Which you couldn’t claim for, anyway, unless you could quantify a specific loss or had a diagnosed psychiatric illness resulting.

 

Does your claim have to be in excess of £10,000?

If you decide you are unlikely to be awarded more than £10k, the small claims track is more attractive in terms of costs protection.

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1. I don't think they necessarily have to protect your deposit with the same scheme listed in the tenancy agreement. So you may lose this claim if they have protected your deposit and given you Prescribed Information. However, some of the deposit protection schemes are quite strict about some of their rules, so worth checking carefully.

 

I use the DPS whose rules are pretty relaxed - they provide an automatically-generated PDF that the landlord has to give to the tenant. On the other hand, I know that at one time another scheme *required* certain terms to be included within the contract.

 

2. The lack of gas safety certificate does not help you much compensation-wise.

 

3. You have to think about proving your case:

* Do you have proof that the work you requested was not done? And was failure to do the work sufficient to cancel your tenancy?

* Do you have proof of your ill health?

* Do you have proof that the property suffered from damp?

 

4. I would have thought the rapidity with which the landlord and agent said they would re-let and then locked you out of the property was good evidence that they also rescinded your tenancy. So even if you lost all of your case you should be limited to paying the re-letting costs and rent till the property is re-let.

 

It is surprising that they acted so quickly. Did you put them under a lot of pressure?

 

5. I'm assuming your large claim has meant you have paid a lot of court costs. The court hearing will also be expensive. You could look at your options for modifying the claim so it is covered by the small claims track.

 

My gut feeling is that *proving* damp, and *proving* that the damp caused your ill health within one day, is difficult. If so, possibly the best you can hope for is to get your rent/deposit back because the agreed work was not done and because you and the landlord agreed, so quickly, that the property was not right for you.

 

One of your options will be to accept the offer of a free conciliation service.

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Hi Steve,

Thanks so much for your response. So in answer to your questions:

1) Thanks - The deposit was with DPS (however on the AST they said it was with My deposits), however we did not receive a PDF, we also didn't know if it was protected or who it was protected with, so called the deposit schemes until we found where it had been.

2) Ok about about gas safety, I guess it was just another thing they had not done properly

 

3)

a. We have proof the work wasn't done, and we stated that our offer was "contingent" on them, however obviously our main issue was with the damp problems

b. I can proof this as I had to get an emergency inhaler (have the prescription) on the Tuesday after moving out, I also have multiple doctors allergy notes / information / antihistamine prescriptions on my allergy. My partner was in hospital with a fungal related infection from mould in the past which we are currently getting a letter to show this.

c. We have photos of damp.water in the walls and black mould on the walls, plus photos of the dehumidifiers and multiple mould gels that were added to the property when we moved in

 

4. We said we felt we had been misled due to the addition of the dehumidifiers and mould items which were not there when we viewed or in the inventory, that we wouldnt have taken the property due to our health concerns and that we couldnt live there due to the damp and mould problems and the effect they would have on us. We asked for our money back and removals costs, but that was it. Initially the Estate agent said he would give us a refund the next day but seemed to change his mind, as when we went to the estate agency the next day it was closed with the shutters down! We also asked to speak to the landlord directly but the estate agent and landlord refused to give us her address stating "data protection"... not sure if that would count as much pressure? What do you think? We also only gave the keys back on the Saturday (5 days after moving our stuff out of the property), after we went back to the property to find we had been locked out, and after going back to the estate agency to find it shut and the agent not responding to us.

 

To be clear we never said we wanted to end the contract or move out, we just asked for the contract to be rescinded, however neither the estate agent or landlord contacted us about this after our final email on the Tuesday 30th Nov saying that there were no issues with the property and that they would let us know if there are any viewings (which they didn't). We also know that KFH held viewings in the property on the Wednesday as we called KFH who stated that they had been showing people around on the Wednesday, and were doing more viewings that week. So basically we didn't really know what was happening and no one was responding to us.

 

5. Yeah I think this is true, however couldn't the landlord just say no to any amendments and try to pressure us with the costs? Also the amendments cost another £250 to go direct to the court. What do you think may be the best option here?

 

 

What is the free concillation service??

 

Thanks for your help

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Which you couldn’t claim for, anyway, unless you could quantify a specific loss or had a diagnosed psychiatric illness resulting.

 

Does your claim have to be in excess of £10,000?

If you decide you are unlikely to be awarded more than £10k, the small claims track is more attractive in terms of costs protection.

 

Sorry just realised I responded incorrectly.... It doesn't no, however I am not sure how easy the process will be to get it under 10k now it has gone through...?

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1. For information, the DPS provide a 17 page PDF document comprising the Prescribed Information. It contains about 4 pages of personal information and information about the deposit, and the rest are the detailed DPS terms and conditions. From the date you pay your deposit the landlord has 30 days to issue you with this information.

 

3. Good that you have these photos. I guess ideally the property should be reported to the council so they can inspect it. The council may not be inclined to do so now that you have moved out.

 

Not sure of the legal processes for changing your claim. It's also a bit unclear as to how much of your claim is for rent and how much is for losses (storage etc).

 

One approach could be to write to the landlord indicating that if you are able to come to agreement which simplifies his claim, that this will result in reducing his risk of legal costs.

 

Certainly the Court would expect you to try and resolve the situation. For example, it seems clear they have locked you out, so there should be no argument about returning your rent from the point they locked you out. Assuming 30 days have passed it is clear they have not protected your deposit properly, so they should at least return it.

 

One way would be to write requesting return of your rent and deposit now that they have accepted that the contract is rescinded (by locking you out and telling you it is being re-let).

 

My personal view is that you will need to come across as rational and practical (and I get the impression that is what you are doing). I recently helped a friend with a claim and while he won the claim he would have won more if the issue between him and the other party had not become personal and aggressive (even though all of the aggression and 60% of the personal issues were due to the other party).

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Thanks Steve. So...

1. We still haven't received anything on the Deposit, the only information we received was about the My Deposit scheme (which isn't where it was held), so they have definitely missed the 30 day window on that.

 

3. We did get in touch with the council, and the day the council said they could come was the week after we were locked out. We then called the council and they said they would not come... I am inclined to believe this may be why we were locked out.

 

I think that is a good option, we are also thinking we will try and get the deposit back through the DPS scheme and then taking it out of the claim.

 

We have repeatedly contacted the landlord via post (first through the agency and then once we got her address) and they have not responded (we have proof of our letters too). We also still don't have their solicitor contact details. However, I think we will try the resolution approach... I just do not know what they have in their defense / counterclaim, but maybe we would seem more reasonable if we put the offer there....

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Hi Everyone,

So we have decided to take the following action:

1) ask the court to allow us to amend the claim

2) get in touch with the landlord again to see if they will agree to discuss a settlement / discuss something with us

3) get in touch with the deposit scheme and try and dispute that through them

4) extend the life of the claim due to the clerical error with MCOL (they accidentally discontinued our claim mid Jan without telling us. We only realised last week, and spend a week trying to resolve that)

 

I will post again with any updates but if you have any other ideas then do let me know!

 

Thank you for your help :)

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The court wouldn't be impressed if you didn't try to recover your deposit via DPS first, so do that first.

I still don't understand how you would cumulate £7k losses in a day.

One month rent in advance is what you can claim for.

Removal and storage for a reasonable time, not until case is resolved.

So the question you will be asked is: After you left the property, did you look for another place to rent?

You can't claim storage fees for months and months to come.

Taking time off work: why did you? Illness? How long did it last? Is it documented? Having a prescription doesn't prove anything.

I can get a morphine prescription with a phone call because of a condition that occurs randomly, but that doesn't prove i have symptoms.

Did you see a doctor?

So again, how do you get to the £7k figure?

It seems excessive for one day rent so you need to provide a detailed breakdown of actual losses considering that the contract was terminated when you left and the LL can't pay your expenses indefinitely.

More details please.

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Hi, thanks for your reply.

We are now trying to get the deposit via DPS. I imagine the landlord will dispute this though.

 

After we left the property we moved in with family as we wanted to keep costs low, and to be honest we didn't really know what to do.

 

We both took the Monday off work to move our stuff out so it wouldn't get covered in mould (what I am allergic too), but we did not surrender the contract/ say that we were moving out / abandon the property for more than 21 days, as it says in our AST, hence why we went back that weekend to try and find out what was going on with the property... then we found out we had been locked out with a mortice lock that we had not been given the keys for, and the estate agent we had was closed. This is when we decided to return the keys to the estate agency.

 

Also, on the Wednesday 2 days after leaving the property, we called KFH who confirmed they had been showing people around the property and would be doing more viewings during the week. We had not been given any notice of this (even though the estate agent told us they would give us 24h notice, which was the last correspondence we heard from the landlord / agent), nor did they get in contact with us / respond to us to ask if we had left the property. Which is odd as we made it clear we were not surrendering the property.

 

I did not go and see a doctor no, but I did go to the pharmacy who gave me another inhaler and antihistamines, I also have proof of a mould allergy... but again like you say we would then need to prove mould in the property which we don't want to have to do, as the reason we left was due to being misled.

 

Does that help?

 

Thanks again smile.gif

Edited by Mr.P
Deleted financial breakdown
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It helps understanding that you have to review your calculations.

Firstly, you cannot fine anyone, only a court of law can or authorities with such legal power, surely not an individual.

 

Unless you have strict prove that this is what you earn, the judge will kick you out of the courtroom faster than a thunder.

8 weeks storage ~£500?

Most storage facilities charge a lot less than that and i use different units, some very large, for a fraction of that.

You need to mitigate your losses otherwise the LL can say you deliberately inflated them vexatiously or negligently.

I'm not too sure you can claim for the weekend away either.

Being upset about something is not good excuse to forfeit a holiday and even travel insurance won't cover that.

As you didn't seek medical attention you can't prove you were too ill to go on holiday.

So overall you can claim £XXk for rent paid, moving charges, Uber, and at a stretch storage for a month.

Loss of earning to tally your documentable loss, i.e. Payslip.

Deposit could become claimable if you're not able to recover it via DPS.

If it makes it to court you'll be asked if you were actively looking for another accommodation and why it took you so long to find one.

Counter argument could be that you wanted to make a profit out of this, especially looking at your figures.

On a separate note, you follow the pre-action protocollink3.gif and that's great, i hope you sent your communication via recorded delivery / proof of postage / email.

I know all of this sounds negative, but you have to wear defendant's shoes to build a good case.

 

Admin note: Removed specific costing at the request of the OP

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Hi, that helps, thanks.

 

Ok that makes sense re: the claim - we can amend that alongside the deposit fine.

 

With the loss of earnings we have payslips of day rates etc so we can show that.

We just used a big yellow storage company as it was the closest storage facility, that is how much it was for furniture etc for a large enough space, we got the first month half price too.

 

We have also sent everything recorded delivery so we have that re: the pre-action protocol.

 

What about the admin fee?

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Sorry to be blunt bema2017, but with a combined net income of almost £xxxk between you and your partner, why didn't you seek legal advice and saved time?

If your time is that valuable, it would be best used to make close to £1k a day rather than waste time on the internet where you're only going to get educated guesses at best and wild opinions at worst.

Don't forget that even if you win, it is not guaranteed that you will recover your money.

The LL might have no assets whatsoever and the property mortgaged up to the bones on an interest only basis.

I personally call a moral victory a loss if it wastes time and money without producing results.

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Hi, sadly that is not the case or we wouldn't be in this mess! Day rates come and go depending on work.

 

During the time dealt with the landlord / estate agent / they were responding to us, we just wanted our money back, and still do. However we have been ignored since November 25th, hence why we took legal action.

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Hi, sadly that is not the case or we wouldn't be in this mess! Day rates come and go depending on work.

 

During the time dealt with the landlord / estate agent / they were responding to us, we just wanted our money back, and still do. However we have been ignored since November 25th, hence why we took legal action.

 

In that case you can't claim a potential loss.

You have to calculate your daily rate based on average income.

Best done using your p60 from last year or self assessment if self employed.

Look at this in this way: A car dealer can't claim £20k for a missed day at work by saying that he would have potentially sold a supercar.

His loss would be limited to his average daily income based on a calculation of his documentable tax return or p60 if employed.

So again, you have to redo your calculations and amend the claim otherwise the LL would most likely try to convince the court that you're out to make money, not recover losses.

Frankly i would contact them and let them know that you have made a mistake in the figures, because in your lba you claimed a large amount of money and that's why they ignored it, safe in the knowledge that you couldn't claim for that much.

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In that case you can't claim a potential loss.

You have to calculate your daily rate based on average income.

Best done using your p60 from last year or self assessment if self employed.

Look at this in this way: A car dealer can't claim £20k for a missed day at work by saying that he would have potentially sold a supercar.

His loss would be limited to his average daily income based on a calculation of his documentable tax return or p60 if employed.

So again, you have to redo your calculations and amend the claim otherwise the LL would most likely try to convince the court that you're out to make money, not recover losses.

Frankly i would contact them and let them know that you have made a mistake in the figures, because in your lba you claimed a large amount of money and that's why they ignored it, safe in the knowledge that you couldn't claim for that much.

 

 

Ah I see - thanks.

We were planning on amending the case today anyway to remove deposit / illegal eviction fine, so can take that out as well and P60 it.

 

With regards to contacting them we have tried to arrange a discussion but have since been ignored, do you think it is worth contacting once more on the claim total?

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