Garden/balcony unfinished- flat habitable? Full rent due?

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    Garden/balcony unfinished- flat habitable? Full rent due?

    What is to do, when the offered flat is ready to move in, but the winter garden/balcony is not finished? Is the landlord entitled to receive the full rent, even when a part of the flat is not usable?

    #2
    Originally posted by Penny Prosperity View Post
    What is to do, when the offered flat is ready to move in, but the winter garden/balcony is not finished? Is the landlord entitled to receive the full rent, even when a part of the flat is not usable?
    L can let it in whatever state it is, as long as it's reasonably habitable. Whatever rent T agrees is what T has to pay!
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

    Comment


      #3
      Oh my, what is that for a country? I expected and still expect a complete finished flat when I agreed the rent. No one ever mentioned that this is not the case.

      So basically the tenant has to pay the full rent, despite 1/5 of the flat is not usable.

      Comment


        #4
        Originally posted by Penny Prosperity View Post
        Oh my, what is that for a country? I expected and still expect a complete finished flat when I agreed the rent. No one ever mentioned that this is not the case.

        So basically the tenant has to pay the full rent, despite 1/5 of the flat is not usable.
        L certainly has to carry-out whatever works he contractually agreed to carry-out before letting the property. Otherwise, he does not.

        Does the AST refer to the property's incomplete state (e.g. in Inventory of works still outstanding)?
        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
        4. *- Contact info: click on my name (blue-highlight link).

        Comment


          #5
          What promises were made with regards to the unfinished parts when the property was viewed before taking up the tenancy? Was the work supposed to be completed? Was it expected to be completed within a certain time frame? If no such promises were made, then the landlord/agent could expect the rent to apply to the property as viewed as the potential tenant did not query the lack of completion of the parts mentioned.

          P.P.
          Any information given in this post is based on my personal experience as a landlord, what I have learned from this and other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person.

          Comment


            #6
            I am the one with no date of commencement in the AST.

            The agent only mentioned in a e-mail that the flats are ready to move in after 06.01.2009. As I do not have the complete AST I will not cancel the storage, and I am still waiting for the information what happened with the deposit, they refuse to hand over the paperwork, and they are well over the 14 days after receiving the deposit. I have had enough from these promises, they don't have the time to make it properly, sorry they have then to wait. I asked several times what the reason for the over 2 month delay are. No sufficient answer so far. And she only said that the balcony/winter garden are to be done (no time/date) and that they installed electricity meter.

            I have no inventory or whatsoever at the moment, this will be done when I move in and this will only happen when I have a date of commencement on the AST and can cancel my storage unit within the notice period as agreed with the storage people.

            Comment


              #7
              Originally posted by Penny Prosperity View Post
              Oh my, what is that for a country? I expected and still expect a complete finished flat when I agreed the rent. No one ever mentioned that this is not the case.

              So basically the tenant has to pay the full rent, despite 1/5 of the flat is not usable.
              Whether you 'expect' it or not is immaterial ; as other people have advised, you can only insist on a finished winter garden (or whatever) if you have it in writing that that it will be finished by the time you move in (or whenever).

              Your expectations in themslelves would not be sufficient for a court to require your LL to complete the work, if push came to shove.

              It was unwise to sign an AST with no commencement date, in fact I think it may even make it unenforceable - does anyone know?

              Are you saying you want to get out of this tenancy and find somewhere else, or do you want to live in the flat?

              Out of interest, what will this 'wintergarden' be like when it's finished?
              'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

              Comment


                #8
                Originally posted by mind the gap View Post

                It was unwise to sign an AST with no commencement date, in fact I think it may even make it unenforceable - does anyone know?
                Hi

                I agree with you that there is at least a question mark over the enforceability of the contract.

                Courts will go to some lengths to enforce the terms of an intended lease where these are indeed enforceable. So, whilst it is not absolutely necessary for the start date of the lease to have been agreed, there must be some clear mechanism or process by which that date can be objectively set. Often in building contracts this is the issuing of a practical completion certificate - or more usually some period after the issuing of that certificate. Usually the leasee will build into an agreement for a lease some kind of longstop date or at the very least some kind of liquidated damages for non performance or late completion.

                I have some very recent experience of these kinds of agreement on some very large scale building contracts - where I (or my company) is the leasee - and agreeing the terms is not always easy.

                Anyway, my question to Penny and to her prospective landlord would be, was there a clear agreed method by which the start date of the lease could be set? If yes, then she is probably bound by its terms; if not, then it may well be unenforceable and she may be entitled to walk away and claim back any monies she has paid in advance, (less, of course, any other deductions she may be contractually committed to, such as administrative costs).

                I would be interested in other contributors' thoughts.

                Preston

                Comment


                  #9
                  As an AST does not need to be in writing at all (although written is better!), the commencement date's absence is not fatal to its validity. Commencement can be provable by the parties' actions, for instance.
                  JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                  1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                  2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                  3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                  4. *- Contact info: click on my name (blue-highlight link).

                  Comment


                    #10
                    It is always a good idea to leave the commencement date blank on an AST as it is not unknown for landlords or tenants having to change the commencement or move-in date. This obviates the necessity of a new tenancy agreement having to be drawn up if the date is not inserted.
                    The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

                    Comment


                      #11
                      Originally posted by jeffrey View Post
                      As an AST does not need to be in writing at all (although written is better!), the commencement date's absence is not fatal to its validity. Commencement can be provable by the parties' actions, for instance.
                      Originally posted by Paul_f View Post
                      It is always a good idea to leave the commencement date blank on an AST as it is not unknown for landlords or tenants having to change the commencement or move-in date. This obviates the necessity of a new tenancy agreement having to be drawn up if the date is not inserted.
                      Hey, I have just figured out how to do multiple quotes!

                      Anyway, I agree with both the above points, but neither address the point I was making. Both Jeffrey and Paul are describing situations where the start date is (or will be before the commencement of the tenancy) agreed between landlord and tenant; this may or may not be evidenced in writing. I was attempting to address the issue of what happens where a start date has not been agreed. In this instance, can the parties be bound to enter into a lease. My argument is yes they can, but only if there has been sufficient agreement on the terms of the lease and in particular with regard to a start date or the means for determining the start date.

                      Preston

                      Comment


                        #12
                        Long story short:
                        1. Viewing of the flat 10.10.2008, paying holding deposit and agent verbally agreed move in date 15.11.2008. I gave notice to my landlord. (The date 15.11.2008 is also mentioned in several e-mails)
                        2. 8.11.2008 agent said there is work to do in the flat but will be finished 14.11.2008.
                        3. 3 days before I was supposed to move in (15.11.2008) she said the flat will not be ready, next move in date 29.11.2008.
                        4. I signed two AST: one for the actual flat commencement 29.11.2008 and commencement date 15.11.2008 for the temporary flat free of charge. The agent did not give me copies of both AST.
                        5. I viewed the temporary flat (which was not finished either) with the developer/landlord and he promised to send the keys to my address at latest 14.11.2008. I did not receive the keys. He gave them to the agent and wrote (SMS) that I have to pick them up on the 15.11.2008, which was not possible as I was busy with the removal.
                        6. That left me homeless.
                        7. After a tiresome tour to CAB, etc. I had no other choice (as homeless with no prospect of a roof over the head in the near future) as to go there and sign the agreements again; the ones I already signed were destroyed by the agent. I had to pay all the monies, even if they offered the temporary flat free of charge. The date for the temporary flat was altered and no date for the actual flat, even if they said the flat will be finished by 29.11.2008 but no one would take any responsibility. (I have copies of both AST)
                        8. Since then, I tried to get answers regarding the reasons for the delays and ask repeatedly when the winter garden will be finished. I never received a sufficient answer.
                        9. I asked for the proof that the deposit is protected, which was declined by the agent, they said that I will receive it when I move into the actual flat.
                        10. The agent wrote an e-mail that the move in can be after 06.01.2009 and that I can cancel the storage (14 days notice period). I asked for the amendment of the AST, and again for the proof that the deposit is protected. No answer yet as they have now closed and open on the 05.01.2009.
                        11. Therefore I have not cancelled the storage as I don’t go through all that again. I believed once that the confirmation in the e-mail is enough and was proofed wrong.


                        Thanks to All for your replies, I really appreciate this. Hope I did not forget something.

                        Comment


                          #13
                          Hi, if your question is, does all this mean that the agreement is binding on you, then my honest answer is I dont know. My guess - and it is just a guess - is no, for two reasons.

                          Firstly, they have failed to comlpy with a fundamental term of the original agreement, namely delivering a property to you by the agreed date; I think this would probably be sufficient for you to repudiate the contract.

                          Secondly, in their subsequent dealings they have been insufficiently precise about when the new tenancy will start. The argument against this is that they have given you a date(ish), namely 6th January, and that you have by the revised tenancy agreement and by your subsequent actions accepted that the tenancy start date may be subject to variation.

                          I think what you do really does depend on how strongly you feel about all of this and how much of a risk you are prepared to take. Not an easy position to be in.

                          Preston

                          Comment


                            #14
                            Hi Preston,

                            I feel very strongly that I do not trust them.

                            Enter the date in the AST and send me a pdf via e-mail is done in 2 min. The same with the paperwork for the deposit, if it is true that they have protected it, why not send me the paperwork?

                            All I have is an e-mail where the agent states that the person in charge on the landlord side "said" that the move-in will be after 06.01.2009. They are not able to confirm this properly (within 3 days), sorry I don't cancel the storage when they have not even 2 min. to do their job properly ...

                            Comment


                              #15
                              I found a added clause to the tenancy agreement.

                              "The start date of this contract will be determinate by flat (actual address) being completed and the transfer from flat (temporary address)"

                              So the AST should be altered when the flat is completed, which is not the case as the winter garden is not there. Or is there an other definition of 'complete' regarding a new build house/flat as the common sense meaning of 'complete'?

                              How much rent is then to reduce until the flat is completed if I agree to move in despite the fact that the flat is not complete, but habitable.

                              Comment

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