Withholding rent due to no garage as advertised

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    Withholding rent due to no garage as advertised

    I moved into a property 18 months ago which was advertised with secure underground parking. This was confirmed when I looked at the property as being underneath the flats. When I moved in no such parking existed. I asked my landlord what they were going to do about it on several occasions but got no reply. I then sent a letter saying that if I didn't hear anything within 28 days I'd deduct £60 per month for failing to provide the parking. I never heard back and so deducted the money. For 18 months I've not heard a thing about this. My landlord wrote a reference for my new agent stating that I paid my rent on time etc. But now they are saying they are going to take the money from my deposit that I withheld. What I want to know is should I go through the dispute resolution about this or should I go to court??

    #2
    I think you need to make a money claim on line (MCOL) for any deduction from the deposit you consider unawarranted (you have to agree to it anyway so deduction cannot be automatic). Hope you have good evidence of the advertised parking facility.

    Is the deposit properly protected as things changed in April 2012?
    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.

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      #3
      Originally posted by Shnooks View Post
      What I want to know is should I go through the dispute resolution about this or should I go to court??
      Do you have evidence that the property was advertised with parking? Much more importantly, does your tenancy contract state that parking is included? Or anything in writing from agent or LL about the parking being included?

      Do you also have evidence of contacting the LL 'on several occasions'? Evidence that you couldn't park? A copy of the letter saying you'd deduct £60 per month? Evidence that comparable rental properties without parking cost roughly £60 pcm less?

      The situation is that you have withheld rent. So you owe the LL that rent; there is no denying it. The only way you wouldn't owe it is if a county court were to award you the same sum of money as damages ('compensation') for breach of contract, because that award would be set against the rent debt.

      You cannot have this matter dealt with by a deposit scheme adjudicator, as adjudicators quite simply don't have the authority to decide on or award you damages. All they would look at is whether or not there is any unpaid rent, and since there is, you'd lose. So you must refuse to have the matter dealt with by deposit scheme adjudication; the disputed sum will be held by the scheme pending resolution in court.

      However, I'm not quite sure how you would construct a court claim against the LL. I suppose you'd have to make the claim against the LL for A) refund of deposit, and B) damages for breach of contract (it just seems a little odd when you've already awarded yourself damages, in effect; bear in mind that regardless of the letter[s] you sent, you didn't have the authority to unilaterally decide you're entitled to £60 pcm compensation - only a court can decide this if you & LL didn't agree to settle on a figure). The LL would then counterclaim for unpaid rent.

      It would be more straightforward (and logical) if the LL made the first move, and claimed against you for unpaid rent; you'd then defend with a counterclaim for damages for breach of contract and for the deposit.

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        #4
        Westminster's post is true according to law, "law" here being opposed to "equity". I think there is a case to argue that the landlord is estopped from denying that a reduction in rent was agreed. Getting no response to a letter of the "if there is no response it will be assumed" type is not on its own sufficient confirmation that what you set out is agreed. However, no response taken with (a) a failure to demand the shortfall for as long a period as 18 months and (b) written confirmation that rent was paid on time has to be pretty near conclusive that a reduction was agreed.

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          #5
          Estoppel did cross my mind, but I haven't the level of knowledge required to argue or explain it (I don't even know which type of estoppel it might be) and nor does OP. One would hope that if this were dealt with in the county court in the small claims track that the judge would take such considerations into account, even if not expressly pleaded, but I doubt it's something one could rely upon, given the idiosyncracies of lower court judgments.

          However, the failure to demand the shortfall etc isn't, in my inexpert opinion, conclusive. And I don't know whether it is relevant, but it seems to me that the OP hasn't really relied upon the LL's lack of action to his detriment, as per a 'classic' case of estoppel.

          Comment


            #6
            I originally finished my last past with the words: "A court may of course disagree", but deleted them as I did not want to appear to be backtracking.

            You are of course right that it would be difficult to predict the outcome in the county court. Indeed, the whole point of equitable rules is to allow flexibility so even at a higher level a decision may go against the OP.

            I am no expert on equity, but I think that estoppel by acquiescence or laches may apply in a case like this.

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