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Wickerman
07-10-2011, 10:14 AM
I have a student house with three students. Last year there was fairly major building works carried out which was the demolition of a row of commercial/residential units.

The rental house was adjacent to these properties.

The property was purchased by the landlord in December 2009. Tenants moved in during July 2010 and moved out at the end of June 2011. Work started halfway through this period.

One of the tenants moved out a few months before the tenancy and informed us that she was no longer paying any rent, as she states she was not informed about the building works. There were a few other issues as well - she fell out with the other tenants who were pretty wild (quite bad damage to the house, furniture damaged, antisocial problems etc).

The guarantors (paperwork signed, executed as deed) are refusing to pay this rent, based on their argument that the tenants were not told about this building work and its probable impact on the house. For what it is worth, the statutory notices were sent out to the previous landlord in around April 2009. This *may* have turned up on searches but the new landlord claims he was not informed of this when he purchased the property.

As the tenant was not informed, the guarantor believes the contract was invalidated as we (the agency) failed to notify her of works that we should have known about.

Any opinions from the people here?

westminster
08-10-2011, 10:00 AM
I assume that the tenants did not specifically ask and were not specifically assured that there would be no building work. That being the case, I cannot see that the building work removes the tenants' liability for rent, let alone 'invalidates' the contract.

I would claim against the tenants/guarantor for the unpaid rent and damage.

Wickerman
08-10-2011, 11:16 AM
Thanks for feedback.

We have just informed the landlord that we will be issuing a formal demand and if the money is not paid the landlord will be commencing legal action - it will be up to the court to decide the validity of his arguments.

bhaal
08-10-2011, 11:55 AM
Sounds like a fairly major breach of the covenant of quiet enjoyment to me. That may or may not entitle the tenant to repudiate the contract, but if it does the guarantor will fall as well unless you had it drafted to say it is an additional primary obligation.

More importantly for you the guarantors may use the Unfair Terms in Consumer Contract Regulations. These claim to import a duty of good faith into every consumer contract. While westminster is correct that you cannot usually claim misrepresentation unless you ask about an issue and a representation is made it is certainly possible this may differ if there is a duty of good faith. The result would be the guarantor could claim successfully there was a misrepresentation under the tenancy agreement and so it can be repudiated.

Even if these arguments don't work you may find that some of the more punitive terms of the guarantee are struck down under the Regulations.

Please let us know how the case goes - it will make an interesting (and useful precedent) if terms in a tenancy guarantee given by an individual are stuck down under the UTCCR.

jta
08-10-2011, 12:41 PM
Sounds like a fairly major breach of the covenant of quiet enjoyment to me.

That is not what the phrase means. Quiet enjoyment has nothing to do with actual peace and quiet.

The works were beyond the landlord's control.

ram
08-10-2011, 13:12 PM
The works were beyond the landlord's control.

But if tenants were not told ?
Wickerman confims the tenants were not told wnen "someone knew".

Also, one tenant was expected to live with unaccepable people who were pretty wild (quite bad damage to the house, furniture damaged, antisocial problems etc).
and no doubt she was also not told that these types of unaccepable people were the types she would have to share with.

So to put it mildly, she was not told she was being put in with animals, and not told about building works, and you wonder why she "had" to leave, and now people want to cause her more problems by effectively saying :

You "have" to live with animals, and you "have" to live on a building site which someone forgot to tell you about,
then you want to charge her for the priviledge on her right to get the hell out
of an alleged hell hole.

Don't charge her rent, be compassionate, but not many are on here, as it's al about money, and not giving a tenant a decent place to live ( read the op's post again -
antisocial problems).

jta
08-10-2011, 14:10 PM
The guarantors (paperwork signed, executed as deed) are refusing to pay this rent, based on their argument that the tenants were not told about this building work and its probable impact on the house. For what it is worth, the statutory notices were sent out to the previous landlord in around April 2009. This *may* have turned up on searches but the new landlord claims he was not informed of this when he purchased the property.

As the tenant was not informed, the guarantor believes the contract was invalidated as we (the agency) failed to notify her of works that we should have known about.


Read it again for yourself! OP is trying to find a fair answer to a guarantor that is trying to wriggle out of an agreement.


Don't charge her rent, be compassionate, but not many are on here, as it's al about money, and not giving a tenant a decent place to live


If that's how you see most of us, then you are on the wrong site, and you know it. Why don't you take yourself off to another site where your silly attitude matches their remit.

Letting property is a serious business, compassion may come into it sometimes but we are talking about the legalities here.

If that earns me an infraction then I'll see you all when it's served.

bhaal
08-10-2011, 14:35 PM
That is not what the phrase means. Quiet enjoyment has nothing to do with actual peace and quiet.

The works were beyond the landlord's control.

This is not correct, at least not any more, the House of Lords confirmed that excessive noise can be a breach of the covenant of quiet enjoyment in a 1999 case called London Borough of Southwark v Mills:



The appellants in these two appeals, Mrs. Tracey Tanner and Miss Yvonne Baxter, are respectively tenants of the London Boroughs of Southwark and Camden. Mrs. Tanner lives in a block of flats on Herne Hill. Miss Baxter occupies the first floor flat in a converted Victorian house in Kentish Town. They both complain of being able to hear all the sounds made by their neighbours. It is not that the neighbours are unreasonably noisy. For the most part, they are behaving quite normally. But the flats have no sound insulation. The tenants can hear not only the neighbours' televisions and their babies crying but their coming and going, their cooking and cleaning, their quarrels and their love-making. The lack of privacy causes tension and distress....

Although first Lord Hoffmann first state that the covenant for quiet enjoyment had a history which had nothing to do with noise:

....I shall consider first the covenant for quiet enjoyment....The covenant has a very long history. It has been expressed or implied in conveyances and leases of English land for centuries. It comes from a time when, in a conveyancing context, the words "quiet enjoyment" had a technical meaning different from what they would today signify to a non-lawyer who was unacquainted with their history. So in Jenkins v Jackson (1888) 40 Ch.D. 71, 74, Kekewich J. felt obliged to point out that the word "quietly" in the covenant "does not mean undisturbed by noise. When a man is quietly in possession it has nothing whatever to do with noise... 'Peaceably and quietly' means without interference - without interruption of the possession." Likewise in Kenny v. Preen [1963] 1 Q.B. 499, 511 Pearson L.J. explained that "the word 'enjoy' used in this connection is a translation of the Latin word 'fruor' and refers to the exercise and use of the right and having the full benefit of it, rather than to deriving pleasure from it."...

He later said:

For my part, however, I do not see why, in principle, regular excessive noise cannot constitute a substantial interference with the ordinary enjoyment of the premises. The distinction between physical interference with the demised premises and mere interference with the comfort of persons using the demised premises recalls a similar distinction made by Lord Westbury L.C. for the purposes of the law of nuisance in St. Helen's Smelting Co. v. Tipping (1865) 11 H.L.Cas. 642. That distinction was no doubt justifiable in that context on pragmatic grounds, but I see no reason why it should be introduced into the construction of the covenant for quiet enjoyment. I would not be willing to say that Kenny v. Preen [1963] 1 Q.B. 499 was wrongly decided. The fact that the appellants complain of noise is therefore not in itself a reason why their actions should fail.

The full text of the judgment is here:

http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd991021/mills-1.htm

jta
08-10-2011, 14:52 PM
(or design)
I do not see why, in principle, regular excessive noise cannot constitute a substantial interference with the ordinary enjoyment of the premises.

Sorry Bhaal, I disagree, in the case you have quoted there is an implied reference to it being a regular disturbance, this building work may have gone on for a period but it was a once only happenstance. The same thing is not going to be repeated in the near future is it?

I will stick with the definition I know.

The case of noise from adjacent flats is clearly a matter of shoddy workmanship when they were built, something we should all be on our guard against.

bhaal
08-10-2011, 15:32 PM
Well during the building works the noise was undoubtedly regular. In any case my citations to Mills hopefully showed that the covenant for quiet enjoyment can be breached by excessive noise in principle, which was the point I was making following your first post in which you said it had 'nothing to do with noise'.

mariner
08-10-2011, 18:21 PM
The demolition etc does not appear to involve the rented house or the current owner. Stat Planning Notices are normally sent to adjacent occupiers for info and allow poss objections to be raised, which can be ignored. I assume no start date for work was advertised. Unless Ts complained specifically about the demolition disturbance soon after it started I cannot see current LL has c case to answer. Reading the other info in OP it was the T who left early (for whatever reason) started the rot and the other Gs jumped on the bandwagon to avoid their liablity for rent and damages. Another reason for LLs to ensure G Deeds are watertight.

Students could soon become an underclass, unable to obtain affordable private rented accom. along with long term unemployed on LHA.
Mr Osborne & Universities = take note.

midlandslandlord
08-10-2011, 20:57 PM
Well during the building works the noise was undoubtedly regular. In any case my citations to Mills hopefully showed that the covenant for quiet enjoyment can be breached by excessive noise in principle, which was the point I was making following your first post in which you said it had 'nothing to do with noise'.

As I read that case, the action was against the party causing the noise not the landlord - although they were the same organisation.

That seems to me to be different from this situation.

Would the Tenant not have to take action against the builder demolishing the adjacent properties?

ML

bhaal
09-10-2011, 07:58 AM
As I read that case, the action was against the party causing the noise not the landlord - although they were the same organisation.

That seems to me to be different from this situation.

Would the Tenant not have to take action against the builder demolishing the adjacent properties?

ML

No, it was against the landlord. The first sentence in the second paragraph of Lord Hoffmann's speech says:

Each of appellants has brought proceedings against her council, as landlord, seeking an order that it do something to remedy the situation.

Wickerman
09-10-2011, 18:39 PM
Hi All,

Interesting feedback. The situation with the other guarantors is not the issue - there were no significant rent arrears with one tenant (paid up to the end of the term), one tenant owed three months rent (started off being due to loans, then refusal to pay) and the other one is trying to use the situation with the building works to get out of he guarantee.

It is a difficult one but it is a smokescreen - the guarantor even went as far as saying "ignorance is no defence" when talking about ignorance of upcoming building works! We were certainly none the wiser, and we manage several properties (erm... about 70 or 80) in the immediate vicinity, of which we own 4 or so - we have had no notification.

The landlord is currently taking one of the tenants to court (not the one whos G is arging about building works) - I fully expect this to be successful as there is simply no reason for her not to pay - she had the use of the property up until the end of the term of the contract and lived there.

Regarding the one tenant we are in dispute with, we have informed the G that we will be sending out a formal notice for payment and if necessary (if the amount is unpaid) the G can argue with the landlord in court as to the contract status.

Thanks all.

westminster
10-10-2011, 13:40 PM
Well during the building works the noise was undoubtedly regular. In any case my citations to Mills hopefully showed that the covenant for quiet enjoyment can be breached by excessive noise in principle, which was the point I was making following your first post in which you said it had 'nothing to do with noise'.
Excessive noise caused by the LL, perhaps, but the LL has no control over a third party's actions - in this case, the building works next door in a property not owned by the LL (or so it would appear). You cannot be suggesting that every time someone decides to dig up the road that any tenants living in the affected street may claim a breach of quiet enjoyment entitling them to repudiate their tenancy contracts.