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View Full Version : Tenant's 'professional' complaints- scam?



Wickerman
23-04-2008, 21:18 PM
Interesting one here.... just got this (snipped out quite a lot of other bits from the email):

Renting a 2 bed terraced property. Property is very high spec - mosaic tiled kitchen, excellent fitted kitchen, rough stained wood architraves (rustic look). Had been done to a high standard by builder and then sold on.

A few glitches occurred - none of the aerial sockets worked (they were on the chimney breasts, in place for flat screen TVs etc), a leak sprung on the washing machine pipes (which could *possibly* have been caused by rough fitting of washing machine, although more likely could be poor installation). T complained of rough woodwork on the bannisters where they had been screwed into the joists (in about 3 or 4 places). T wanted the woodwork sanded down. There was also a wooden lintel over the fireplace (giving it a real rustic look) that the T wanted sanded down. There was also a nail sticking out of the skirting boards (although it was recessed and could not easily cause a problem). T meanwhile got an aerial fitter around and demanded there and then that the LL install 2x new aerials at a cost of £200 (overcharging incidentally - we would pay approx £150-£180 for 5 TV points off two aerials on the roof).

We recommended to the landlord to sand down the woodwork on the stairs and in other places, remove the nail and fix the aerials. Subsequent to this there may have been a leak from the immersion tank into one of the bedrooms - T is claiming the smell from the boiler (this may be the leaking water) in one of the bedrooms is affecting her childs athsma.

LL got the leak fixed fairly quickly and visited the property after just over a month later. He said he would not sort the wood out as it was a spurious problem.

T sent off an email to us today. She mentioned S11 of LTA as well as the theft act (new one on me as LL/agent!)


I consider that the land lord is in breach of the implied repairing obligations contained in section 11 of the Landlord and Tenant Act 1985 as he has failed to carry out repairs in a reasonable time frame. At this point I would like to bring to your attention the case of Bruton (A.P.) v. London and Quadrant Housing Trust where the house of lords upheld the appeal and stated that that “the agreement creates a relationship of landlord and tenant between the Housing Trust and himself and that therefore an undertaking to repair by the Housing Trust is compulsorily implied by statute - section 11 of the Landlord and Tenant Act 1985”.


and

After moving in to the property within days I became aware that the house was not made to the high standard of living which would require minimum repairs in the future. The house only looked good but behind appearances there where a lot of repairs needed which could be potential hazards to me and my children. At that point I felt I was deceived, as I and my guarantor came to the conclusion that the house was not worth the high value it was given to us as it was badly done. I believe that your company had a duty of care to be properly inspecting this property and be truthful of its state of repairs needed before valuing it. Based on the Theft Act 1968 section 2 paragraph (b) you are liable because I would have not consent if I knew of the appropriation and the circumstances of it. This means that if I knew the actual repair state of the property I would have never sign and pay such level of rent for that property. Therefore you have dishonestly made me agree to sign the tenancy contract.

Interestingly the tenant has a guarantor who was not supposed to be living with her - it seems he is now (all the previous demands mentioned "we" and he has been texting and calling from his number while at home, he has answered the phone and given it to her etc) and she is the only one on the contract. She has started to claim housing benefit, likely as a single mother so would be fraudulent claimed if he did indeed live in the same house. (at no point was it discussed she would be on housing benefit).

Also she is claiming injury which is the first we heard of it:

In addition at the beginning of my tenancy I brought to your attention the fact that the wood used all over the house had not been sand down and had splinters which can be dangerous to me or my young children. Because this repair did not take place, almost two weeks after I moved in I suffered an injury to my hand from the rough wood on the stairs. This has caused a scar to my left hand. I believe that the injury was foreseeable, there is a proximity of relationship between me (the tenant) and the landlord and as it states on section 11of the Landlord and Tenant Act 1985 the land lord had a duty to repair the rough wood of the property (xxxxx). The rule was discussed and expressed in another way by Lord Justice Asquith in 1949 in the case of Victoria Laundry -v- Newman Industry Ltd in terms of 'reasonable foresee ability'. This depends on the knowledge then possessed by the parties, or, at all events, by the party who later commits the breach. Knowledge is of two kinds -one imputed the other actual. Everyone is taken to know what loss is liable to result from a breach of the ordinary course of things. This is the subject-matter of the "first rule" in Hadley -v- Baxendale. A contract-breaker also possesses knowledge of special circumstances outside the "ordinary course of things" which would give rise to more loss. Such a case attracts the operation of the "second rule" so as to make additional loss also recoverable. The rule discusses the wasted expenditure or reliance loss, which I believe entitles me to ask for all my money back as a form of compensation. This money will cover distress caused to me and my children, including injuries and medical issues raised above. The expenses of moving home and packing and unpacking as now I have to pay twice in two months to move again.

Does anybody have an idea if these are actually applicable as case law? To the best of my knowledge S11 LTA 85 applies to structure, heating and water - also I would think it impossible to dishonestly make someone agree to sign a contract.

agent46
23-04-2008, 21:32 PM
It looks like Blackwells have got one of their "3 for the price of 2" offers on again 'cos your tenant has clearly bought themselves a few copies of Nutshells (it's a bit like "Law for Dummies") :D

PaulF
23-04-2008, 21:33 PM
Interesting one here.... just got this (snipped out quite a lot of other bits from the email):

Renting a 2 bed terraced property. Property is very high spec - mosaic tiled kitchen, excellent fitted kitchen, rough stained wood architraves (rustic look). Had been done to a high standard by builder and then sold on.

A few glitches occurred - none of the aerial sockets worked (they were on the chimney breasts, in place for flat screen TVs etc), a leak sprung on the washing machine pipes (which could *possibly* have been caused by rough fitting of washing machine, although more likely could be poor installation). T complained of rough woodwork on the bannisters where they had been screwed into the joists (in about 3 or 4 places). T wanted the woodwork sanded down. There was also a wooden lintel over the fireplace (giving it a real rustic look) that the T wanted sanded down. There was also a nail sticking out of the skirting boards (although it was recessed and could not easily cause a problem). T meanwhile got an aerial fitter around and demanded there and then that the LL install 2x new aerials at a cost of £200 (overcharging incidentally - we would pay approx £150-£180 for 5 TV points off two aerials on the roof). Much of what you have said really should have been risk assessed under the HHSRS regulations. If a tenant is likely to suffer injury from anything then you should carry out an immediate assessment and make a written report to your landlord (make sure you make a charge for this)

We recommended to the landlord to sand down the woodwork on the stairs and in other places, remove the nail and fix the aerials. Subsequent to this there may have been a leak from the immersion tank into one of the bedrooms - T is claiming the smell from the boiler (this may be the leaking water) in one of the bedrooms is affecting her childs asthma.Get this checked out, but I'm not sure abount sanding the woodwork if it would spoil the effect unless any occupant were to be potentially open to injury

LL got the leak fixed fairly quickly and visited the property after just over a month later. He said he would not sort the wood out as it was a spurious problem.

T sent off an email to us today. She mentioned S11 of LTA as well as the theft act (new one on me as LL/agent!) S.11 mainly obliges the tenant to keep the structure of the property in a good state of repair, provide space heating and hot water and keep the sanitation and the necessary utitility supplies functional


I consider that the land lord is in breach of the implied repairing obligations contained in section 11 of the Landlord and Tenant Act 1985 as he has failed to carry out repairs in a reasonable time frame. At this point I would like to bring to your attention the case of Bruton (A.P.) v. London and Quadrant Housing Trust where the house of lords upheld the appeal and stated that that “the agreement creates a relationship of landlord and tenant between the Housing Trust and himself and that therefore an undertaking to repair by the Housing Trust is compulsorily implied by statute - section 11 of the Landlord and Tenant Act 1985”.
It depends, it might be more likely to come under the Defective Premises Act 1972

and

After moving in to the property within days I became aware that the house was not made to the high standard of living which would require minimum repairs in the future. The house only looked good but behind appearances there where a lot of repairs needed which could be potential hazards to me and my children. At that point I felt I was deceived, as I and my guarantor came to the conclusion that the house was not worth the high value it was given to us as it was badly done. I believe that your company had a duty of care to be properly inspecting this property and be truthful of its state of repairs needed before valuing it. Based on the Theft Act 1968 section 2 paragraph (b) you are liable because I would have not consent if I knew of the appropriation and the circumstances of it. This means that if I knew the actual repair state of the property I would have never sign and pay such level of rent for that property. Therefore you have dishonestly made me agree to sign the tenancy contract.

Interestingly the tenant has a guarantor who was not supposed to be living with her - it seems he is now (all the previous demands mentioned "we" and he has been texting and calling from his number while at home, he has answered the phone and given it to her etc) and she is the only one on the contract. She has started to claim housing benefit, likely as a single mother so would be fraudulent claimed if he did indeed live in the same house. (at no point was it discussed she would be on housing benefit).

Also she is claiming injury which is the first we heard of it:

In addition at the beginning of my tenancy I brought to your attention the fact that the wood used all over the house had not been sand down and had splinters which can be dangerous to me or my young children. Because this repair did not take place, almost two weeks after I moved in I suffered an injury to my hand from the rough wood on the stairs. This has caused a scar to my left hand. I believe that the injury was foreseeable, there is a proximity of relationship between me (the tenant) and the landlord and as it states on section 11of the Landlord and Tenant Act 1985 the land lord had a duty to repair the rough wood of the property (xxxxx). The rule was discussed and expressed in another way by Lord Justice Asquith in 1949 in the case of Victoria Laundry -v- Newman Industry Ltd in terms of 'reasonable foresee ability'. This depends on the knowledge then possessed by the parties, or, at all events, by the party who later commits the breach. Knowledge is of two kinds -one imputed the other actual. Everyone is taken to know what loss is liable to result from a breach of the ordinary course of things. This is the subject-matter of the "first rule" in Hadley -v- Baxendale. A contract-breaker also possesses knowledge of special circumstances outside the "ordinary course of things" which would give rise to more loss. Such a case attracts the operation of the "second rule" so as to make additional loss also recoverable. The rule discusses the wasted expenditure or reliance loss, which I believe entitles me to ask for all my money back as a form of compensation. This money will cover distress caused to me and my children, including injuries and medical issues raised above. The expenses of moving home and packing and unpacking as now I have to pay twice in two months to move again.

Does anybody have an idea if these are actually applicable as case law? To the best of my knowledge S11 LTA 85 applies to structure, heating and water - also I would think it impossible to dishonestly make someone agree to sign a contract.If she signed the contract then she could not have been coerced unless you held a gun to her head! I think what you have here is a "professionally aware" tenant who propbably has done this to previous landlords too and knows how to impart some grief on agents and landlords. I feel a S.21 Notice winging its way soonish? Case law won't help you by the way, it's only a guidance, not something you can use

agent46
23-04-2008, 21:58 PM
Case law won't help you by the way, it's only a guidance, not something you can use


That's a very odd thing to say Paul - case law is far more than just "guidance." The body of reported decisions is known as the "common law" and providing the principle(s) set out in reported decisions cited in support of an argument are applicable to the facts of the situation under discussion, and if the decision was handed down by the appropriate level of judiciary, then they are just as binding as statute law.

As the thread was addressed for FAO of a named person, I don't want to jump in and start giving my opinion on the issues, but I felt I had to say something about that strange comment. :eek:

justaboutsane
23-04-2008, 22:11 PM
Just putting me 2p in .. Looks like you have a pro on your hands.. I hope you have everything water tight. She may well be spouting this rubbish at you to scare you into handing over some "compensation". But to be honest I doubt she has a leg to stand on and any Judge worth their salt will just laugh her out of court.

Good Luck

Colincbayley
24-04-2008, 07:34 AM
Everything else to one side, if she wants to leave, LET HER!!
Will be a lot more agro otherwise.

susanne
24-04-2008, 07:40 AM
section 21 time methinks .....

agent46
24-04-2008, 09:49 AM
This woman clearly has never read the maxim “a little learning is a dangerous thing.” From her style of writing and her scattergun approach to citing authorities, she sounds to me as if she is either a very, very average 2nd year law student or has just done some “Wiki research” in the hope that she can bully you into a settlement.

I don’t have time to unpick the shambling nonsense she believes passes for a legal argument, but I would just quickly pick up the following points:

1) The Theft Act 1968 has absolutely no application to this case. Unbelievable!!!

2) Bruton (A.P.) v. London and Quadrant Housing Trust is not applicable to the facts of this case. Without boring everyone with the minutiae, Bruton was a case where a council had granted a licence of a block of flats to a housing trust, but then the housing trust had parted with possession of one of the rooms in the property to a homeless man in circumstances that amounted to the grant of a tenancy. The homeless man served notice to repair on the housing trust. The housing trust defended this on the grounds that the homeless man didn’t have a tenancy because they only held a licence from the council and therefore had no estate in land out of which to grant a tenancy, and thus they were not bound by s.11 LTA 1985. Even though the housing trust only had a licence from the council, the House of Lords held that contrary to the usual rule of nemo dat quod non habet (you cannot give away that which you do not own) as between the homeless man and the housing trust, because the housing trust had given him exclusive possession at a rent for a term, there was a tenancy and thus the LTA 1985 s.11 applied. This is known as tenancy by estoppel. As far as I can see from your case, there is no dispute over whether or not she has a tenancy, and there is no need to cite Bruton. In fact, in doing so, she has exposed the limitations of her learning and experience.


3) As for the rough wood on the stairs allegedly causing injury to her hand – she possibly has a cause of action here as although I don’t think LTA 1985 s.11 would cover banisters and such like, because the LL reserves the right to enter and repair the premises he can be liable for injury caused to the occupier or their visitors by the state of the premises. However, I find it difficult to believe she has suffered anything more than a trifling injury and permanent scarring would be unlikely (if indeed any injury did in fact ever occur). Inform her that if she wishes to persist in her claim on this head of damage, then in the course of disclosure you will be requiring sight of a medical report on the injury (ie: from A&E or her doctor), her medical records, photographs of the said injury and all tickets/receipts pertaining to travel to and from hospital.

4) As for her claim to “reliance losses” – well firstly, the damages she claims for her injury are not reliance losses, they are what is known as general damages for pain, suffering and loss of amenity. Secondly, she wishes to claim the costs of moving etc. The breach (if any) on your part is not serious enough to warrant her walking away from the lease, so her remedy would not be “repudiation” + damages, but would simply be the damages I have set out above.

I could write more, but I have to go and help some real, as opposed to cyber-people.

Another question – are you the LL or the LA ?

Mark Hessel
24-04-2008, 10:11 AM
Hello All,

This has all the hallmarks of Tennant from hell, possibly professional bad tenant. I would not start any proceedings yet, this may be what she wants because she can then try and rely on this as further evidence of her bad treatment, harassment, intimidation etc. Be very, very careful, in particular about anyone attending the property; this can lead to all kinds of accusations. Disrepair and illegal eviction are two big legal no nos, in particular in relation to the amount of compensation she can try and claim.

I would not dismiss so quickly her legal statements, they may be party misinformed, but throw enough mud and something may stick. If she can manufacture a dispute then she will apply for and get legal aid; this will lead to a dispute that can take over a year to get to Court and the landlord or whoever pas ends up paying a lot in legal costs, none of which Will be recovered and all the while she Will live rent free.

I would invite her to attend your offices on the basis that the meeting is tape recorded. At the start of the tape introduce everyone, the date and time and have her verbally confirm that she agrees to be recorded. Discuss what she wants, if she just wants out of her contract then negotiate on a without prejudice basis that in consideration of her agreeing to waive any and all claims, list the ones she has mentioned, and indicate this would Eb in full and final settlement that the landlord would agree to waive any arrears of rent, or allow her 14 days rent free etc (some consideration is a must) to leave. That something would have to be drawn in writing and signed by the parities at the same time and witnessed evidencing this and that it is suggested she consider taking legal advice (include this in the agreement that she was informed she should seek legal advice).

If she goes for the above then grab it with both hands, the cost of dealing with her through the Courts will be high and she will throw every legal argument she can at this. Even after you win she Will then appeal and appeal again until she has no options left and has to go. The alts case I had like this took 2 and 1/2 years to get someone out cost my client over £50,000.

agent46
24-04-2008, 10:17 AM
Hello All,

This has all the hallmarks of Tennant from hell, possibly professional bad tenant. etc etc .

Yes, "Pacific Heights" springs to mind....

I'd concur with all that written by MH. Sound practical advice indeed.

Mark Hessel
24-04-2008, 10:36 AM
As long as she is either not having to pay something or has an amount the landlord is willing to waive then that is consideration. You could give her a peppercorn if you can find one. It is solely about settled contract law, offer, acceptance, consideration.

agent46
24-04-2008, 10:40 AM
Or get your solicitor to draft a deed of surrender, as no consideration is necessary under a deed.

Hang on a moment (rubs chin) - IIRC, it's one of the paradoxes of our system of land law that a surrender, even of an AST (which could be oral) has to be executed by deed anyway.

jeffrey
24-04-2008, 12:48 PM
Or get your solicitor to draft a deed of surrender, as no consideration is necessary under a deed.

Hang on a moment (rubs chin) - IIRC, it's one of the paradoxes of our system of land law that a surrender, even of an AST (which could be oral) has to be executed by deed anyway.

Not always. See post #3 in my thread http://www.landlordzone.co.uk/forums/showthread.php?t=9841.

agent46
24-04-2008, 13:02 PM
Not always. See post #3 in my thread http://www.landlordzone.co.uk/forums/showthread.php?t=9841.


Yes, I didn't mention surrender by operation of law, although I was aware of it. I was just thinking about the paradox that one can grant an AST in the most informal of circumstances, but if both parties want to rid themselves of it, then supposing there is no other party willing to take a new tenancy (ie: to effect a surrender by operation of law), then they need a deed of surrender to do so.

Colincbayley
24-04-2008, 17:14 PM
WTF? The title of the message has changed! Did not know you could change the thread name!

You Can't, Editior or moderator can!!! ( Think his been at the Gin this afternoon! ):p

Colincbayley
24-04-2008, 17:42 PM
Oh OK. Do not agree with the title imposed though - should be more like "Tenant threating legal action - any leg to stand on" ... or ...
"Tenant threating legal action - anything to worry about?" or something
How about 'Tenant completely off their rocker, should I call a quack?':D

attilathelandlord
24-04-2008, 18:22 PM
Tenant probably slurring after the booze!

PaulF
25-04-2008, 12:04 PM
A simple exchange of letters and the return of the keys to the landlord would be sufficient as any two parties to a contact can mutually agree to end the contract under common law.

agent46
25-04-2008, 14:25 PM
A simple exchange of letters and the return of the keys to the landlord would be sufficient as any two parties to a contact can mutually agree to end the contract under common law.


Pedants' corner:

1) It's not a "contact", it is a "contract"

2) It is not a contract, it is a lease.

Richardo
25-04-2008, 21:21 PM
Can you get people in to do a HSRSS assessment or is there a guide to doing them?[/QUOTE]

HHSRS hasn't been well publicised. H&S check against 29 potential criteria affecting all HMO, AST and even owner occupiers.

Currently enforced by LAs and focussed on HMO and tenants who complain about H&S issues (very far reaching!).

Housing Act 2004 defines the legislation but seems to be a charter for amublance chasing lawyers to earn fees.

I'm a landlord with 10 properties and am forming the view that without an HHSRS report I'm wide open to a H&S claim... (Yes your honour, I agree that despite the HHSRS risk assessment criteria which I should have been aware of, I did nothing about the lack of safety glass in the lounge door. I apologise and hope Heather Mylls will recover and lead a normal life again following her injuries falling through it...) UR Honour fined me £24,000,000 and I was only covered for £2M.......

Thoughts?

RichardO