New LL help. Why do some ASTs say 'accidental fire excepted'? and some dont say this?

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    New LL help. Why do some ASTs say 'accidental fire excepted'? and some dont say this?

    Hi all,

    I'm about to become a landlord for the first time. I downloaded / purchased a few ASTs to compare them and see which one seems best for me. I got the Lawpack, NLA, RLA and Letlink ones. This process raised an interesting question...

    My biggest question is that all of them say 'fair wear and tear accepted' (which I know needs to be there), but some alternatively say 'fair wear and tear AND damage by accidental fire accepted').

    Others say 'fair wear and tear and damage by INSURED risks accepted').

    There was a recent case where a tenant put a lit barbecue into a shed and caused substantial damage to the main property. The insurer did not pay out because they said that the landlords insurance did not cover outhouses. The judge said that the tenant did it by accident and because the AST excepted damage by accidental fire then the landlord was left to pay for the repair himself. See here for the case story http://www.cedr.com/docslib/MD_Case_studies_website.pdf

    So why do some ASTs just say 'fair wear and tear' while others say fair wear and tear, accidental fire & insured risks accepted?

    Many thanks in advance for your thoughts on this..

    #2
    Originally posted by landlordcj View Post
    Hi all,


    So why do some ASTs just say 'fair wear and tear' while others say fair wear and tear, accidental fire & insured risks accepted?

    Many thanks in advance for your thoughts on this..
    Depends who writes the AST I suppose. Cases of tenants setting fire to landlords' property are mercifully rare. If a tenant deliberately set fire to a property then they would be prosecuted for arson but accidental damage is just that.

    You choose which clause to use.



    Freedom at the point of zero............

    Comment


      #3
      NEVER put in an AST "damage by accidental fire accepted'

      So a tenant in there for 6 months "accidentaly" burns down a flat and the 10 others in the block, and he pays nothing ?
      The next tenant there for 6 months after the rebuild "accidentaly" burns down a flat and the 10 others in the block, and he pays nothing ?

      There is a massive difference to parts wearing out / fair wear and tear, and destroying your home and others.

      Don't even consider puting in anything that says - you cause a fire, that's no problem, come back again when rebuilt, and do the same again, while you will be refused insurance, then when the third fire breaks out, burns the place down, it's 2 million pounds out of your pocket you have to pay, but you wont have a flator house tosell to pay part of it, cos it burnt down, and your still have to pay the mortgage on it.

      Comment


        #4
        Originally posted by ram View Post
        NEVER put in an AST "damage by accidental fire accepted'
        So some of the ASTs that I have seen just more or less say 'fix the damge that have done', while others say something like:

        ... fair wear and tear and damage by accidental fire excepted (unless the insurance money becomes wholly or partly irrecoverable by reason of any act or default on the Tenant)'


        If you say nothing at all about insured risks when talking about damage, would an insurer be likely to say that the contract clearly makes the tenant and not them liable for any damage!?

        Is this maybe why a sentence like the one above is included by some people / agents???

        Comment


          #5
          "Accepted" and "excepted" are NOT synonyms and therefore NOT INTERCHANGEABLE.

          Comment


            #6
            Where a tenant is responsible for repairing something and the landlord insures, it is important to exclude from the tenant's obligation damage by a risk against which the landlord has insured except where the insurer declines to pay on account of some act or omission of the tenant. This may seem the opposite of what should be the case, but is essential and in fact standard. The reason is that insurance is a contract for indemnity. If a tenant is required to make good damage caused by an insured risk the insurer can require the landlord to pursue the tenant first.

            What is important is to make sure that the provisions in the tenancy agreement concerning insurance and the insurance policy dovetail. Saying the tenant is not responsible for accidental damage is bad drafting if not all accidental damage is covered by the insurance policy.

            Comment


              #7
              Originally posted by Lawcruncher View Post
              Saying the tenant is not responsible for accidental damage is bad drafting if not all accidental damage is covered by the insurance policy.
              Thanks for the feedback. All but one of the 4 contracts I have looked at just say 'fair wear and tear'. However, one of them says 'damage covered by and recoverable under the insurance policy excepted'. (See clause below for reference). It seems like a 'catch all' clause that seems to offer protection to me using the word 'recoverable'. However, does this seem too vague?

              Does something like this offer more clarity?

              (fair wear and tear and damage by accidental fire or other risk insured against by
              the Landlord only excepted unless the relevant policy of insurance shall have been rendered void or voidable or payment
              of the whole or part of the insurance moneys refused in consequence of some act or default on the part of or suffered by
              the Tenant)



              Clause for reference:

              To yield up the Property with full vacant possession and the items on the Inventory (if any) at the end of the Term in the same clean state and condition it/they was/were in at the beginning of the Term (but the Tenant will not be responsible for fair wear and tear caused during normal use of the Property and the items on the Inventory or for any damage covered by and recoverable under the insurance policy effected by the Landlord under clause 3.2).


              Many thanks for any help

              Comment


                #8
                Originally posted by landlordcj View Post

                Does something like this offer more clarity?

                (fair wear and tear and damage by accidental fire or other risk insured against by
                the Landlord only excepted unless the relevant policy of insurance shall have been rendered void or voidable or payment
                of the whole or part of the insurance moneys refused in consequence of some act or default on the part of or suffered by
                the Tenant)


                No, it doesn't. In fact, it doesn't even make sense.

                Possibly because you are still confusing 'accepted' and 'excepted'.
                '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


                  #9
                  You ARE determined to put in a clause that says, burn my house down, the insurance will pay.

                  Forget the accidental fire risk; just leave it out.

                  Tenant causes damage, tenant pays for it.
                  The insurers will determine if tenant deliberately set fire to place, should you have insurance against fire by tenant.

                  Don't INVITE sloppy tenants

                  Comment


                    #10
                    Originally posted by ram View Post
                    You ARE determined to put in a clause that says, burn my house down, the insurance will pay.

                    Forget the accidental fire risk; just leave it out.

                    Tenant causes damage, tenant pays for it.
                    The insurers will determine if tenant deliberately set fire to place, should you have insurance against fire by tenant.

                    Don't INVITE sloppy tenants
                    I agree.

                    But people who draft legal documents should nonetheless have sufficient command of Standard English spelling to avoid obscurity or ambiguity in what they write.
                    '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


                      #11
                      Originally posted by Lawcruncher View Post
                      Where a tenant is responsible for repairing something and the landlord insures, it is important to exclude from the tenant's obligation damage by a risk against which the landlord has insured except where the insurer declines to pay on account of some act or omission of the tenant.
                      Ok, interesting.

                      But with reference to what Lawcruncher said, then just specifying 'fair wear and tear' (and not mentioning insured risks)... does that not suggest that the insurer would 'ask' / tell you (or that you would be contractually obliged to) pursue the tenant for damages first because you did not exclude their liability for anything insured!??

                      If the above is true, then wouldn't something like the below act as a 'catch all' statement???

                      'fair wear and tear excepted. Insured risks excepted, unless the insurers refuse to pay out the insurance money due to anything the Tenant has done or failed to do'

                      Comment


                        #12
                        No! Just follow ram's advice and do not dabble in legal drafting.
                        '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


                          #13
                          You need an obligation on the tenant something like this:

                          Not to damage the Property (except by fair wear and tear) and to keep in good repair all parts of the Property and all additions to it except that the Tenant is not obliged:-

                          (a) to do any repairs which are the Landlord’s responsibility under this agreement or under a statutory provision which applies despite any agreement to the contrary

                          (b) if there is a schedule of condition which either is attached to this agreement or is signed by or on behalf of the parties and identified as being the schedule of condition for the purposes of this agreement to do any work to put any part of the Property specified in that schedule into any better condition than that recorded in the schedule

                          (c) to make good any damage caused by a risk against which the Landlord is insured at the relevant time unless the insurance moneys are withheld because of any act or omission of the Tenant or anyone on the Property with the Tenant’s consent

                          Comment


                            #14
                            'Now that's a nice bit of legal drafting' (as Burglar Bill would say). 'I'll 'ave that'.
                            '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

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