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View Full Version : Landlord accepts our notice then changes his mind



anorthosite
30-07-2007, 14:04 PM
Hi,

This is a bit of an odd one. I recently left a house I was renting in England after giving a month's notice. However, I gave the notice just after the next rent period had started. The landlord made no comment about this and on the day we were moving out turned up and said to just pop the keys through the letterbox when we left.

A month later, after a couple of reminders, he writes to us to withold most of our deposit, and enclosed a cheque for the rest, which wasn't much. A small amount was to make up the rent to one month (fair enough I guess) and the rest was for deductions for repairs which were dubious at best. There were no receipts, and we challenged most of the deductions as we felt they were unfair.

He wrote back to us saying that after taking legal advice he was told that he would have been able to charge us rent to the end of the next rental period (about a month's worth of rent) and that if we challenged him he'd counter sue us for the rest of the rent, and for some other damage he claims we'd done.

I now know that I should give notice from one rent period to another (I didn't at the time). But did he accept our notice? Can he actually sue us for the rent if we take him to court for the other deductions?

It should be mentioned that if he had said at the time that we owed him rent for another month, we would have stayed there, as we encountered a problem when we moved that almost left us homeless for a fortnight and cost us hundreds of pounds and a lot of stress. It seems a bit ridicuous to be charged for a house we never got to use, especially if we needed one at the time.

For the record, there was no signed inventory, the deductions included replacing stone chips outside the house and tools for the decorators he says he hired, and the house was spotless - my girlfriend spent a whole day cleaning it.

Colincbayley
30-07-2007, 14:12 PM
No inventory = No Deductions ( no questions )

davidjohnbutton
30-07-2007, 16:00 PM
I don't actually subscribe to that theory that "no inventory = no deductions" - whilst an inventory helps, it is not the sole reliable factor in deciding whether a property is handed back in reasonable "fair wear and tear" condition. The landlord could have photograph or an independent witness or indeed the previous tenant to support any disrepair contention.

In this case, I do however believe the landlords case is weak - he deducts both without an inventory and without supporting invoices. Also, when challenged about the deductions, he "counterclaims" for a further month's rent because the notice was insufficient, not ending on a rental period - that may be so, but I consider the landlord is estopped from claiming any further by his acceptance of delivery of possession and his own calculation of the rent up to when possession was handed over - self shot in the foot here I think.

What would I do if I were the tenants. I do not think the landlords counterclaim for additional rent would be successful and certainly the court would not allow his deductions for disrepairs without supporting invoices. I would write to the landlord setting this out and giving him 14 days to pay the disputed money to you.

Failing that, I would sue for the return of the whole of the deposit (less that which the OP thinks is fair), interest on the sum, and £20 for raising the summons as litigant in person in lieu of a solicitor.

I think overall, that the tenants will win.

lorenzo
30-07-2007, 20:09 PM
I don't actually subscribe to that theory that "no inventory = no deductions" - whilst an inventory helps, it is not the sole reliable factor in deciding whether a property is handed back in reasonable "fair wear and tear" condition. The landlord could have photograph or an independent witness or indeed the previous tenant to support any disrepair contention.
David,

Interesting view. Do you have any supporting evidence to back this up? In other words, actually court cases where LL have been successful in claiming deductions without an inventory?

I ask, because in Oz, it would immediately be thrown out with a "condition report" as it is termed here.

davidjohnbutton
30-07-2007, 20:35 PM
Show me where (in british law) it says words to the effect that "a landlord may NOT claim damages in respect of disrepair caused by his tenant UNLESS there is a written inventory signed by both parties"

Each case goes on its own merits and evidence - an inventory helps - its not an absolute basis for deciding the condition of a property between two dates.

lorenzo
30-07-2007, 20:47 PM
Show me where (in british law) it says words to the effect that "a landlord may NOT claim damages in respect of disrepair caused by his tenant UNLESS there is a written inventory signed by both parties"

Each case goes on its own merits and evidence - an inventory helps - its not an absolute basis for deciding the condition of a property between two dates.

It doesn't in Oz law either, but it's the only thing that satisfies the requirement for evidence.

I would just like to know if there is any case history where a judge is satisfied with evidence other than an inventory. If it exists, I'd like to know about it... also if it doesn't exist, I'd like to know that too.

An signed 3rd party inventory certainly is irrefutable, you must admit.

lorenzo
30-07-2007, 21:13 PM
OMG!!!

I've made a typo; and it's too late to edit. :eek:

My English tutor will be disappointed.

davidjohnbutton
30-07-2007, 21:27 PM
My problem with quoting case law is that a claim of this nature would be made in the county court probably within small claims the hearing of which is held in private and generally not published unless it comes up for an appeal.

I am sure however, that one of our other forum inhabiters can come up with something appropriate??????

However, stating the cases held in the British courts will not necessarily reflect the condition in the Australian Courts.

Incidentally, even a signed third party inventory is open to examination - judges here like to have witnesses appear in front of them so they can be cross examined. Otherwise whats to stop me getting Joe Bloggs to make up an inventory for a trash house showing it to be good when let and trash now - its been done before!!!!!!

lorenzo
30-07-2007, 21:58 PM
OK just to clarify, I'm more interested in UK law, because that's where my IPs are, but more familiar with OZ law. As irrelevant Oz law is to you all, it just serves as a personal marker as a point of logic, nothing more.

Re Inventories.

As I understand it, an inventory signed by the tenant, is evidence that the initial condition of the property was recorded and that the description of items, components and the condition thereof, was agreed and accepted as accurate by T.

Therefore condition was agreed by both T and LL as evidenced by the signatures and not in question. If the court (or arbitrator) subsequently becomes involved, it could only be regarding agreement of the condition at the conclusion of the lease, and the recompense due to the LL.

So:
*condition at initiation of lease is agreed and not at issue.
*condition at conclusion of the lease is at issue and would require supporting evidence regarding costs.

But I'm flying by the seat of my pants here and look forward to input from others.

Ruth Less
30-07-2007, 23:21 PM
anorthosite, It sounds like you were past the end of the fixed term, can you confirm this is the case. Assuming it is, were you ever served a Section 21 notice requiring possession? Often this is served near the start of the tenancy to expire at the end of the fixed term. This is dubbed the Sword of Damocles and is a way to dispense with the landlord having to give the tenant notice should he wish them the leave any any time afterwards, but it means the tenant doesn't have to give notice either! So if this S21 notice was served then it remains valid even after the fixed term and you would not have to have given notice anyway. So worth checking as often tenants don't realise or forget that the notice was served.

Bel
31-07-2007, 08:07 AM
anorthosite, It sounds like you were past the end of the fixed term, can you confirm this is the case. Assuming it is, were you ever served a Section 21 notice requiring possession? Often this is served near the start of the tenancy to expire at the end of the fixed term. This is dubbed the Sword of Damocles and is a way to dispense with the landlord having to give the tenant notice should he wish them the leave any any time afterwards, but it means the tenant doesn't have to give notice either! So if this S21 notice was served then it remains valid even after the fixed term and you would not have to have given notice anyway. So worth checking as often tenants don't realise or forget that the notice was served.

Useful post...so check your documents for notices served at the time you had your tenancy agreement.

Also I would say that if an inventory is not held, tenants would still have to lie in court if they insist they are not responsible for damages that we all know they are responsible for. I know that it must happen, but is that an easy thing to do for most people?

anorthosite
31-07-2007, 11:41 AM
Hi,

We were about 2 moths past the end of a 12 month agreement. There was no section 21 served.

As for the other deductions, he seems to have redecorated half the house at our expense. He even claims to have bought new tools for the decorators with our deposit.

We were good tennants, we kept the place clean, never had any parties, we don't smoke, we've no pets, etc.

I'm completly confident about our position regarding the state of the house, I just want to check about the rent issue.

Would it make a difference if he entered the house without our permission during the period he says we owe him for?

jeffrey
31-07-2007, 12:05 PM
Hi,

Would it make a difference if he entered the house without our permission during the period he says we owe him for?

It might. You could argue that his re-entry impliedly confirmed acceptance of your departure and termination of your tenancy.

davidjohnbutton
31-07-2007, 17:16 PM
Would it make a difference if he entered the house without our permission during the period he says we owe him for?


If you use this argument in court, the judge is going to take it that (during the time you were not in possesion) you were entitled to exclusive use of the premises during the time in dispute and therefore liable for rent for that period. (assuming the landlord claims off you until the end of the period of the tenancy.)

Best defence is to ask the landlord when it was that he first told you that he intended to charge rent up to the next rent period. If he answers that he did it before you left, then put him to proof of that - if he says that it was six weeks after you had left, then he shoots himself in the proverbial foot!

Don't fanny about - get onto the money claims online website and issue a summons from there otherwise you will still be coming on here six months hence about it. Don't go into a spiel about the claim on the particulars - just say you are claiming for return of deposit in the sum of £x plus interest and costs. If the landlord counterclaims then it will go to a hearing which is when you ring out all the small particulars that there isn't room to mention in the original summons.

anorthosite
01-09-2007, 12:34 PM
Well, I've begun proceedings through the small claims court, and the landlord has appointed a solicitor to represent him. The solicitor says they'll be issuing a full defence and counter claim.

Am I right in thinking he can only have a solictor represent him in the small claims court if I agree to it?

davidjohnbutton
01-09-2007, 13:18 PM
He can have a solicitor or indeed a barrister to represent him in the county court.

However, he won't recover the costs of doing so if you unfortunately happen to lose because the idea of the SCC is that its a "no costs" arrangement other than the court fees you have to pay to issue/enforce the claim.

Likewise, you won't recover all your solicitors fees if you decide to employ one.

Best see what the defence is first - it might be all bluffing and one-upmanship.

anorthosite
08-09-2007, 09:52 AM
Hi,

We've had his reply. He's counter claiming over £500 in rent through his solicitor. Can he do this even although he never mentioned this in his original list of reasons for witholding deposit, especially as he returned over £100 of it? I can't believe he can ask us for the keys back and charge us rent for a further 3 and a half weeks.

Just to recap about the rent, he sent us a list of reasons why he was witholding the deposit and we queried them. He then took legal advice at which point he found out that he could have charged us up until the next rent period. So he threatened to sue us for that rent (over £500) six weeks after we moved out if we made any more noise about the deposit.

As a newcomer to renting, I didn't know about the rent period to rent period nature of tenancies, I just thought you gave a month's notice. Neither did the landlord it seems.

One of the corners of his defence is that we didn't use a professional cleaner authorised by him to clean the house & provide him with receipts. He then hired a professional cleaner and took it out our deposit. He also uses this as an excuse to redecorate the house. This is totally ridiculous, we spent the day cleaning the place, and it was spotless when we left. Can he really make us professionally clean it, or is this one of the OFT's unfair terms? It was buried in the original agreement that we should, but it also said the landlord would have the house cleaned before we move in and provide us with receipts, which no mention was ever made of. There was nothing to suggest it was professionally cleaned and when we left, the place was as clean as when we moved in.

Thanks for all comments, they're much appreciated.

justaboutsane
08-09-2007, 10:24 AM
was there an inventory signed by you and ll at start of tenancy?? If not NO deductions can be made and the LL cannot just have the place decorated and claim costs! there is such a thing as fair wear and tear

anorthosite
08-09-2007, 10:32 AM
Hi,

No inventory of any kind. Like me, it was my landlord's first ever tenancy, neither of us really knew what we were doing.

davidjohnbutton
08-09-2007, 11:14 AM
The landlord can certainly claim the £500 additional rent underwhat I call the "dead fish analogy" Basically this is where you accept the property back from the tenant and you finalise accounts with him only to find 5 weeks later that the tenant has left a dead fish under the floorboards. Can you sue the tenant on this later information - yes of course you can.

The only way you would get out of paying the £500 would be if the landlord had put in writing something to the effect of "if you leave on x date, I will only charge you rent until that date" - thats effectively a contract if indeed you leave on x date. If he then comes back and says I want rent to y date when you left on x date - he would not succeed.

A verbal contract has the same effect - but comes down to proving who said what and what was agreed.

By illustration, I had a court case years ago where the tenant made a laconic statement to me the he was "leaving soon anyway". He apparently intended that to be his notice of 4 weeks. The judge agreed with me that it was not proper notice and liability was 4 weeks rent in lieu of proper notice which the judge commented "should be in writing".

Ruth Less
08-09-2007, 14:17 PM
DJB, I see you have changed your mind on this, any particular reason why?

The landlord hasn't discovered anything new about what the tenant has done. The information about the leaving date, key handover and lack of invoicing for extra rent were all out in the open at the time.

Besides with all the decorating going on the landlord was getting use of the property and it wasn't fit for the tenant to live in. So how can the landlord charge rent for that time. He could not go in to decorate if the tenancy had not finished.

If he wanted the rent he should have said so at the time and given the tenant the chance to stay on should they want to, after all they would have been paying for that. You already said the LL omitting the extra rent from his original invoice was shooting himself in the foot!

It's fairly clear what happened from the correspondence anorthosite does have, assuming that the deposit negotiations have been done in writing.

anorthosite, I would just carry on with the claim.

davidjohnbutton
09-09-2007, 01:06 AM
No Ruth less - I have not changed my mind - my contention is that if the landlord "released the tenant" by agreeing to accept earlier possession than the contract allowed, he is estopped from then claiming rent in lieu of the remainder of the contractual period. However, there appears to be an argument in this case in which the landlord is saying to the tenant, "stop arguing about the deposit or I will bring back the rent I have let you off into the equation" He can claim it, but I never said he would get it, and I don't think he will - I merely answered the question as to whether or not he could claim it and I then went on to explain on what basis he could claim it when he hadn't in the invoice to the tenant.

If on the other hand, the landlord was ignorant of the fact until he saw a solicitor that he could charge further rent legally, then my dead fish anology comes into play, he is not estopped from correcting a mistake - but that having been said, omitting this charge from the invoice to the tenant seems to concur with an early release agreement rather than a tenant leaving early and then arguing the toss and to that end, I still think the landlord has shot himself in the foot notwithstanding he now considers claiming that further rent in order to effectively blackmail the tenant into submission over the deposit/bond.

I concur with you Ruth less - the tenant should sue - I think the outcome will be largely if not 100% in his favour.

Ruth Less
09-09-2007, 02:46 AM
my contention is that if the landlord "released the tenant" by agreeing to accept earlier possession than the contract allowed, he is estopped from then claiming rent in lieu of the remainder of the contractual period.

Yes that bit made sense to me.


However, there appears to be an argument in this case in which the landlord is saying to the tenant, "stop arguing about the deposit or I will bring back the rent I have let you off into the equation" He can claim it, but I never said he would get it, and I don't think he will - I merely answered the question as to whether or not he could claim it and I then went on to explain on what basis he could claim it when he hadn't in the invoice to the tenant.

Still with you here.


If on the other hand, the landlord was ignorant of the fact until he saw a solicitor that he could charge further rent legally, then my dead fish anology comes into play, he is not estopped from correcting a mistake -

This doesn't make sense to me.

As it turns out the tenant would have found it useful to stay on yet didn't as he thought the LL had agreed to his leaving date and would not be charging rent past that. Yet the landlord can change his mind on this and have a legitimate claim if he was previously ignorant of the rules? But if the LL knew the rules he doesn't have a valid claim? The LL could just pretend he was ignorant.

How can it possibly be fair on the tenant who acted in good faith based on what the LL had previously said and invoiced. Why should the tenant pay for the landlord's ignorance? That's different to finding the dead fish that if well hidden the landlord could not be expected to know about and where the tenant has deliberately done wrong and hidden it ...


but that having been said, omitting this charge from the invoice to the tenant seems to concur with an early release agreement rather than a tenant leaving early and then arguing the toss and to that end, I still think the landlord has shot himself in the foot notwithstanding he now considers claiming that further rent in order to effectively blackmail the tenant into submission over the deposit/bond.

Agreed.

davidjohnbutton
09-09-2007, 08:26 AM
Yes that bit made sense to me.



Still with you here.



This doesn't make sense to me.

As it turns out the tenant would have found it useful to stay on yet didn't as he thought the LL had agreed to his leaving date and would not be charging rent past that. Yet the landlord can change his mind on this and have a legitimate claim if he was previously ignorant of the rules? But if the LL knew the rules he doesn't have a valid claim? The LL could just pretend he was ignorant.

How can it possibly be fair on the tenant who acted in good faith based on what the LL had previously said and invoiced. Why should the tenant pay for the landlord's ignorance? That's different to finding the dead fish that if well hidden the landlord could not be expected to know about and where the tenant has deliberately done wrong and hidden it ...



Agreed.


That is why I advocate this matter being taken to court where a judge can unravel who is owed what and one further thing I would say also - if the landlord is going into court with a solicitor - I recommend the tenant does as well - it need not be an expensive matter and may be worth it in the end.

real1314
09-09-2007, 18:57 PM
imo the problem with the LLs discovery of the fact that he could have charged for the full notice period falls apart, as knowing that the tenant had vacated he would have been expected to attempt to re-let to mitigate his losses. he would also surely have been expected to notify the tenant that rent would remain chargeable for this period.

anorthosite
10-09-2007, 12:39 PM
Hi all,

Thanks for all the comments. We can't afford a solicitor, but the facts are pretty straight forward, its up to the judge to make the decision. I thought the whole point of the small claims court was that we didn't need a solicitor.

I just realised today he never issued us with a gas safety certificate or had the boiler inspected in the 14 months we were there. That gives you some idea of what kind of landlord I'm dealing with.

davidjohnbutton
10-09-2007, 13:06 PM
So you could say to him "I note you have not had a gas inspection during my occupation of 14 months - if we cannot get this sorted out amicably and it goes to court - I will consider it my public duty to draw the judge's attention to this fact and also report it to the HSE upon which you are likely to be prosecuted and suffer a fine considerably disproportionate to the amount you are now arguing with me"

You are allowed a friend called a Mackenzie friend in court to help you present your case with the leave of the judge - so you need not be alone against a solicitor-aided opponent.

jeffrey
10-09-2007, 13:16 PM
You are allowed a friend called a Mackenzie friend in court to help you present your case with the leave of the judge - so you need not be alone against a solicitor-aided opponent.

Also try CAB.

anorthosite
10-09-2007, 14:50 PM
So you could say to him "I note you have not had a gas inspection during my occupation of 14 months - if we cannot get this sorted out amicably and it goes to court - I will consider it my public duty to draw the judge's attention to this fact and also report it to the HSE upon which you are likely to be prosecuted and suffer a fine considerably disproportionate to the amount you are now arguing with me"


Wouldn't that be blackmail? :eek:

I'm not sure I want to go down that route! I think I'd prefer to let it slip out in court.

davidjohnbutton
10-09-2007, 15:41 PM
Dont think it is black mail

"Offence of blackmail
The offence of blackmail is created in England and Wales by Section 21 Theft Act 1968. This says it is an offence for anyone to make an unwarranted demand with menaces with a view of gain to himself or with intent to cause loss to another. An ’unwarranted demand' is made unless the person making the demand has reasonable grounds for doing so and the use of menaces is a proper means of reinforcing the demand. Accordingly, money demanded may be properly due but there would still be an offence if improper menaces are used."

source http://www.hmrc.gov.uk/manuals/bimmanual/bim43160.htm

Mainly because demanding the return of your deposit etc. is not an "unwarranted demand". so long as you avoid "menaces" you will be in the clear. Think along the line of getting a speeding ticket where the threat is, unless you pay it, you will be taken to court - that threat is not an offence because it is warranted and made without menaces (i.e. kneecapping etc.)

You do run the risk in slipping it out in court that the judge may consider it irrelevant as the lack of a gas certificate did not cause you any loss personally - but in your shoes, I would mention it anyway for background info anyway.

anorthosite
10-09-2007, 17:25 PM
I'm calm! I went to the CAB, they shook their head in dismay at the paperwork from the landlord. The tenancy agreement appears to be downloaded from the internet and designed for a letting agent. In every communication he's changed his position, for example his defence to the court is a bit different to the letter he originally sent us. He's never sent any receipts or other paperwork, and when we asked for it he threatens to sue us for more based on totally ridiculous reasons. They said we should sue for every penny, I get the feeling they're sick of a certain minority of landlord.

Thanks for the clarification on blackmail!! I think I'll wait until the court case, just so I can see the result on his face when he realises he's commited a criminal offense. I have to admit my attitude's changed a bit now I know he's neglected my safety :mad: