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Deano8717
15-03-2010, 21:19 PM
I recently moved in to a property where I took over the remainder of a years lease on someones room. I signed a new contract from the date moving in with the othe tenants until the end of the years contract that they orginally signed. After moving in I sent the tenancy agency a revised inventory of damages that needed to be fixing in my room. The tenancy agency are now saying that I along with the remaining tenants are liable for the cracks I noted in the window on the new inventory when I moved in, and are saying I am bound by what was on the original inventory when the tenants moved in, in which the window was not listed on and not the one I sent them upon moving in.

Is it true that I am liable for damages prior to me moving in when taking over someone elses contract even if the date on my contract is different and I noted the damages upon moving in?

If this is not the case could someone help me clarify this to them and maybe some legal document in UK law to prove this.

Many thanks,

Dean

matthew_henson
16-03-2010, 11:46 AM
I would argue that you are most definitely not liable as would any deposit scheme (did you pay as deposit?) IMHO

Most of the cases where it is argued that window glass is covered by section 11 of the 1985 LTA are tribunals see this one for example http://74.125.155.132/search?q=cache:K3ASX8MqE4MJ:www.rpts.gov.uk/Files/2009/March/00002P0Y.pdf+landlord+responsible+for+broken+glass +tribunal+case&cd=2&hl=en&ct=clnk&gl=uk

There is another case is Wales as well but I couldn't find it

First the LL would have to prove T had been negligent to recover the cost of glass replacement and

Secondly if you have individual contracts with individual responsibility for your own rooms then the individual who occupied the room at the time of any damage is responsible for it. All the occupants would only responsible if you had a single contract where each was names and "Joint and Severably" liable if indeed you are liable at all

If multiple contracts (not clear) the LL should seek to recover the cost from the previous occupier, if single contract then LL could claim from the remainder of the group or accept that it is their responsibility under S11

Btw are you in England/Wales, how many of you are in the property?

tom999
16-03-2010, 12:02 PM
I recently moved in to a property where I took over the remainder of a years lease on someones room. I signed a new contract* from the date moving in with the othe tenants until the end of the years contract that they orginally signed.
Was the contract* that was signed:

A Deed of Assignment which assigned the tenancy from the existing tenants to the replacement tenants (including you)?
A new joint AST with the other tenants?
Something else?

Deano8717
16-03-2010, 13:23 PM
Thank you for your help.

I signed a new jointly and severally liable contract in England re-dated to the date I moved in until the end of their original lease with the two remaining tenants and their are 3 of us in the house.

Many thanks,

Dean

Deano8717
16-03-2010, 14:17 PM
Sorry underneath the contract title it does say replacement sharer tenancy.

They are also referring me to this clause and nothing else

Clause 10.7 to replace promptly all broken glass with the same quality glass where the breakage was due to the negligence of the tenant, the tenants’ family or visitors”.

But are stating now we are in the property although we reported it upon moving in we are now liable with the others.

Many thanks :)

matthew_henson
16-03-2010, 16:43 PM
Sorry underneath the contract title it does say replacement sharer tenancy.

They are also referring me to this clause and nothing else

Clause 10.7 to replace promptly all broken glass with the same quality glass where the breakage was due to the negligence of the tenant, the tenants’ family or visitors”.

But are stating now we are in the property although we reported it upon moving in we are now liable with the others.

Many thanks :)

Did you pay a deposit, is it protected?

Secondly the onus is on them to prove the rents where negligent, I doubt they can unless there is proof that it was cracks in another way

Deano8717
16-03-2010, 16:54 PM
Yes it is through a letting agency so is protected under the new deposit scheme.

Could you advise if possible on what would be the best approcah in talking to them and what to say?

Thanks so much for all your help, its settled my mind a lot.

seafossil
17-03-2010, 07:43 AM
Thank you for your help.

I signed a new jointly and severally liable contract in England re-dated to the date I moved in until the end of their original lease with the two remaining tenants and their are 3 of us in the house.

Many thanks,

Dean

My view is in light of the fact that all tenants are jointly and severally liable, the agent can pursue any one or all of you for damage caused to the property.

This should however, only be relevant d therefore apply to you from when your own tenancy commences - unless there is something in the contract to say that you are also responsible for damage caused by the previous tenant.

However, they would come unstuck trying to prove that you damaged the property as the window isn't mentioned in their initial inventory. There's nothing there to state that it wasn't in poor condition/cracked to start with.

If they can't prove that, then they can't prove that it was caused during the tenancy, they can't prove that it was caused by the tenants (whether negligently or otherwise)....

I would just try speaking with the LA - if the broken glass isn't a safety or security hazard, go tell them the glass was already broken at the start of the tenancy - and that it will therefore be left in the same condition. Put it to them in an email so you have proof that this was reported to them.

If the glass needs to be replaced for safety/security reasons, take your Agreement/lease to the CAB and get their opinion.

Good luck.

SF

Deano8717
18-03-2010, 21:04 PM
Yea the tenancy agreement says that we take over the inventory from the tenant who's contract we took over. I do however have e-mails off them asking for the list of damages which they are now charging us for, so they basically asked for the damages in the room and then said oh well your now liable. Quite bad on there behalf but silly that we signed the contract without spotting that.

Not too sure how to play it based on that as they keep saying you took over their inventory and on that the broken windows having cracks in wasnt listed. But unsure how these cracks could have even been caused as its not like a wii remote flew through it. Also would the letting agency be reponsible to check over the house on a mid-term change regardless of what the contract says so they do not tell us to hand over a deposit to the old tenant before it has all been checked?

Is it also right that they can move someone in to a property ask for a list of damages then say your responsible for them? It seems ludicrous. I do think what you said about negligence is good as even though i've took over there inventory I still couldnt have been negligent.

They have now said it will go to arbitration any ideas on what to do next, I done what you said in the last reply.

Many thanks,

Dean :)

westminster
19-03-2010, 00:47 AM
Yea the tenancy agreement says that we take over the inventory from the tenant who's contract we took over. I do however have e-mails off them asking for the list of damages which they are now charging us for, so they basically asked for the damages in the room and then said oh well your now liable. Quite bad on there behalf but silly that we signed the contract without spotting that......

They have now said it will go to arbitration any ideas on what to do next, I done what you said in the last reply.

On the face of it, it sounds unfair to be charged for damage caused by a previous tenant. However, it's impossible to advise without knowing what you signed. If this dispute goes to deposit scheme adjudication, that tends to favour the tenant. If it ends up in a county court, then the evidence, including the contract, will probably be examined more closely.

Deano8717
19-03-2010, 13:39 PM
Just read some of the other inventory posts and realised that although we signed the contract that states we will take over the original inventory they gave to the previous person who occupied our room, we were never asked to sign the inventory and agree to it all they asked was for us to note any problems with the current inventory and get it back to them.

So in short we never signed and agreed to the inventory alhtough we did sign a contract agreeing that we would take over the original inventory?

Does this change our position at all?

Also I did not sign the contract until a month after our tenancy had started and have a chain of e-mails from them prior to this requesting damages to be noted etc?

In regards to previous post, they said it would go to arbitration if an agreement could not be reached as shown below:-


Broken window panes- The landlords have said they are not prepared to pay for this and that as it is not counted as fair wear and tear this would be the tenants’ responsibility to pay for rectifying the damage. I appreciate that it has been discussed that it was the outgoing tenants who caused the damage but this is not something that can be taken into account with regards to resolving the current situation. As previously mentioned, I am happy to provide you with quotes from approved contractors if you would like or you are welcome to seek your own quotes to get it fixed. If the windows are not fixed by the such a time that the tenancy ends, it will be reported on the check out report and the landlord will seek to claim it from the deposit. If you feel the outgoing tenants were responsible you would need to pursue them for the funds.

How would we get someone to prove on our defence it is fair wear and tear as it is cracks to very old windows that looks like they were formed over time and grew with cold weather and a very busy street below and also that the flat is loacted above a tunnel entrance so as I feel wasn't caused by anyone as its not like a wii remote flew through it.

Also the first person who occupied the room is freinds with my current flatmate and is willing to state it was there when he occupied the room and didn't feel it was necessary to mention as the damage is nominal and was only noted by us to be cautious as the estate agents requested detailed damage to our room :(

Many Thanks for you help All

matthew_henson
19-03-2010, 16:32 PM
Where T is not negligent the LL is responsible for windows under Section 11 of the 1985 LTA see

http://www.ombudsman-wales.org.uk/uploads/publications/102.pdf

The based on case law from Irvine v Moran

Advise the LA that they should make any claim to arbitrator at the deposit scheme where your deposit is held at the end of your tenancy.

Grossly unfair to even try and pin it on you

matthew_henson
19-03-2010, 18:47 PM
Anybody seen this, useful resource

www.citizensadvice.org.uk/pdf_am_abstracts_index_housing.pdf

Deano8717
13-04-2010, 13:24 PM
With regards to the above discussion it has now come to time of checkout and they now believe that we are liable from the date the one of the tenants moved in in 2008 and not when the contract that we took over was renewed in 2009?

So they are telling us as jointly and severally liable were responsible to have it professionally cleaned as one of the '08 tenants is still there and were responsible for all damages from '08 not from '09 to now.

To clarify the contract is complicated as in our room it has had a tenancy change 3 times, but during that time the tenancy was renewed for another year and the girl who's contract we took over, took over the guy who had renewed contract for '09 - '10 which we are finishing the last 3 months of.

Finally from the previous posts, although I signed the contract I have just disovered I never signed the document to authorise the hand over of money the original tenant to give her her full deposit back, my partner dealt with this I was away so never agreed to the hand over terms, ie. being bound by the original inventory.

The letting agent also asked us to give the deposit back to the original tenant before they informed us of the clause giving us the right the request a full checkout done before we moved in so the tenants could sort all this out between themselves. We then signed the contract after it was too late to know that this existed to use anyway?

The original tenants from 2008, were also not there when the original inventory was carried out nor have they signed it although they have signed a contract?

Could anyone please help me in clarifying these points and where to go from this? Many thanks everyone.

Dean

westminster
13-04-2010, 13:57 PM
Could anyone please help me in clarifying these points and where to go from this?

I think the easiest thing would be to dispute the deductions, raise a dispute with the deposit scheme, and let the scheme's adjudication service decide the matter.

Which deposit scheme is it? TDS, DPS or mydeposits?

Deano8717
13-04-2010, 14:18 PM
I'm not sure if it states in the below link I can't see it and we have never been told but it is in one.


How the tenancy deposit scheme works
In the event of a dispute that cannot be resolved between the landlord and tenant, either party (or KFH) can instigate adjudication with the ICE (Independent Case Examiner). This must be done within 28 working days of the tenancy ending and the ICE must be sent the following:

The signed tenancy agreement
Inventory and schedule of condition for both check in and check out procedures
Evidence that the claimant has tried to negotiate a settlement
Tenancy registration number and details (Assured Shortholds only)
We must send the deposit (less any amount agreed by the parties and paid over to them) to the ICE within ten working days of the dispute being registered.

Once the ICE receives the documentation and deposit, the dispute will be adjudicated with 28 days. Once the adjudication has taken place the deposit monies will be distributed within ten days.

Where the amount of the deposit in dispute is £5,000 or more, the ICE does not generally adjudicate these cases, although he may do so at his own discretion and with the consent of the parties. Alternatively the parties must agree to submit to formal arbitration through the engagement of an arbitrator appointed by the ICE the cost of which will be borne equally between the landlord and the tenant.


In all probability you will not need to call on the ICE. However, if you do, it is important that before the tenancy commences we organise a professionally prepared inventory and schedule of condition for the landlord. The schedule of condition must be signed personally by the tenant at check in and check out.

We've never signed a schedule of condition nor an inventory but the contract implies we take over the previous tenants inventory. Although she took over the previous tenants inventory, who in turn took over the initial tenants inventory from 2008 as one was not done on renewal and the inventory has also never been signed by any tenant on the actual inventory as they missed the inventory check. Feel this contract is badly confused due to amount of changes within two years which we weren't aware of prior to moving in.


Do you think we have a good case to raise a dispute? And what would you advise to give over as never had to go through this before.

At the moment the checkout is arranged for next Friday so just pre-empting what will be listed from correspondence with them in regards to cracked windows from when we moved in etc. That they have already said will have to be taken from the deposit as a whole.

Many thanks,

Dean

westminster
13-04-2010, 14:47 PM
I'm not sure if it states in the below link I can't see it and we have never been told but it is in one.
I'm fairly sure it's the TDS, call them and check. If it is the TDS, it should also be mentioned in your tenancy agreement. http://www.thedisputeservice.co.uk/


Do you think we have a good case to raise a dispute? And what would you advise to give over as never had to go through this before.
Again, ask the deposit scheme what the procedure is. But remember the deposit is your money, and it's the landlord who has to prove their case, i.e. prove that they're entitled to keep some or all of your money. If you have any relevant evidence, such as emails, photos, documents, etc, then you'll be asked to submit it, probably along with a written statement from you explaining your side of the story. Then the adjudicator will go through the evidence and decide whether the LL is entitled to make the claimed deductions - can't answer whether they'll win or not, the whole situation seems very confusing.

Deano8717
13-04-2010, 15:12 PM
Thank You, much appreciated.

Deano8717
27-04-2010, 13:48 PM
Hi,

So the 'Independent' inventory clerk came to note down any changes from the original inventory, made them amendments and failed to note down the crack in the window.

They then sent the checkout report today saying all windows in good condition and then the estate agents attempted to recall it and said correct version was not sent, so taking in to account we and the checkout clerk signed the schedule of condition before checking out where does this leave us in regards to window we felt we were not responsible for in the first place, that they have now failed to pick up on on the final inventory.

Many thanks