This being a topical issue at the moment, our hearts go out to all the residents and landlords caught up in the dreadful floods affecting many parts of the UK at this time.
How to deal with tenants in a flooded property is a nightmare situation. This article kindly supplied by leading specialist property solicitors, Pain Smith, gives pertinent and timely advice to those unfortunate enough to need it right now.
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As most agents will be aware a landlord is under general obligation to provide property that in reasonable condition for the tenant to inhabit. However, due to unforeseen circumstances property that was in good condition may become uninhabitable in whole or in part during the tenancy.
Agents should be looking to take actions along the following lines:
Habitation clauses: Ideally, tenancy agreement should have clause stating that the rent, or fair proportion of it, is not payable if the property becomes uninhabitable in whole or in part unless the damage is caused by the actions of the tenant. There should also be clause giving either party the right to terminate the tenancy at short notice if the property is to be uninhabitable for any significant length of time.
Insurance: An important followup to habitation clause is adequate insurance for the landlord to be able to recover the rent payments he will lose while the property is not available to be occupied.
However, insurance companies are increasingly unwilling to provide this type of cover, especially at the cheaper end of the market.
The flooding of summer 2007 may make insurance companies even less willing to provide such cover in the case of certain properties that are deemed to be at flood risk. Some policies will pay to have the tenant rehoused. As the premiums are tax deductible expense such policies are to be recommended even though they are provided at higher cost.
Rehousing:There is some doubt as to whether landlord is under legal obligation to rehouse the tenant. On one side there is the presumption that the landlord will provide accommodation to tenant for the term of the tenancy as long as they pay the rent.
On the other side landlords cannot be liable for what is known as force majeure, or an ‘Act of God’. This leaves landlords in something of quandary. The best advice is to offer to arrange the rehousing of tenant as long as they pay the rent or to offer surrender of the tenancy.
Each case will need to be considered in the light of the clauses available in the tenancy agreement, the insurance position, and the availability of alternative accommodation in the area at the time.
With regard to insurance claims agents must remember that FSA regulations prevent them form making claim or form handling claim if they do not have the appropriate registration. For most agents this will mean that they can liaise with the loss adjuster but cannot fill in claim form. Be warned that this is criminal offence.
Dr David Smith is a trainee solicitor with PainSmith Solicitors, niche practice specialising in residential landlord and tenant law. He can be contacted on 01420 565310 or by email at david@painsmith.co.uk. If you wish to subscribe to the free legal updates service then you should email update@painsmith.co.uk with the phrase “subscribe updates” in the subject of the email.
PainSmith Solicitors Legal Updates are provided for information only and are not legal advice. If you do have a legal problem, you should talk to a lawyer or adviser before making a decision about what to do.
You may wish to use the CLS/CDS Directory (www.justask.org.uk/public/en/directory) to locate an adviser. The information provided here is written for people resident in, or affected by, the laws of England and Wales only. You should note that date given in the update and be aware that the information given may become inaccurate due to changes in the law or its implementation.
