Can a Landlord use one term of a Tenancy Agreement to 'overrule' another term?

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    Can a Landlord use one term of a Tenancy Agreement to 'overrule' another term?

    I won't bore you with the whole story (trust me, it's long and not really weeked reading material), so here's a quick summary.

    Our Housing Association have refused to repair our chimney since we reported the damage to them in March 2013. Yes. Not a typo. 2013.

    We've taken all the right steps in this issue (complained directly to them, complained via Shelter Cymru, and complained via the Ombudsman - who we are awaiting a resolution from).

    The Housing Associations' solicitor's latest stance on this is that they have a new 'policy' via the WHQS (Welsh Housing Quality Standards), where damaged chimneys are destroyed and replaced with electric fires.

    I've mention to them that the damage occured months before this policy was mentioned, and have requested documentation of the policy, but have been told they have no documentation to support this policy. I've also been assured that the original Tenancy Agreement still stands.

    In all queries I've made to them (and trying to get anyone on the phone who can actually discuss the matter clearly and rationally is nigh-on impossible) they've effectively ignored me. They know they're in the wrong but they don't seem to care.

    Their solicitor is now using one term of our Tenancy Agreement to try to make another term void.

    Here's a link to the Tenancy Agreement in full

    Her argument is that Section 3.12 of our Tenancy Agreement ("Your Obligations" i.e. us)...

    12 Access

    To allow our employees or contractors acting on our behalf access at reasonable times and subject to reasonable notice in writing to inspect the condition of your home or any installations or to carry out repairs or other works to your home or adjoining property (we will normally give at least 24 hours’ notice in writing but more immediate access may be required in an emergency).

    .. takes precedence over Section 2.3 of our Tenancy Agreement ("Our Obligations i.e. them)...

    3 Repair of structure and exterior

    To keep in good repair the structure and exterior of your home including:

    3.5 chimneys, chimney stacks and flues


    She is going to use Section 3.12 to get a court injunction to get contractors to enter the property and remove the chimney.

    Can they ignore their legal obligations by quoting another term of the same Tenancy Agreement?

    Many Thanks
    S-H

    #2
    I appreciate what you say but you have to look at it from the HA's point of view too.

    Is it uneconomic for them to repair the chimney stack, rather then remove it? If so then perhaps their reasoning is reasonable.

    Obtaining a court order to carry out the work might give you an opportunity to put your case, as you are entitled to your opinion, but if the court rules in favour of the HA, are you going to have to pay their costs? I would think not but it is wise to check. I'm not too familiar with the workings within HAs.
    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


      #3
      May be an off the wall suggestion but could you pay to repair the chimney yourself? Cheaper than losing a court case!
      Unshackled by the chains of idle vanity, A modest manatee, that's me

      Comment


        #4
        The solicitor has to be joking - the argument would certainly give a judge a good laugh. No way does the tenant's obligation to allow access cancel out the landlord's obligation to repair the chimney. The obligation is there in black and white. The chimney must be repaired.

        Comment


          #5
          Presumably the HA consider that a replacement (by an electric fire) is the equivalent of a repair.
          Or maybe they consider that the clause that allows access for "other works" allows them to replace the chimney.
          It doesn't look clear to me, but I would hope that if the tenant has a resonable reason for wanting to keep the chimney that the law would support them.

          Comment


            #6
            "To keep in good repair" doesn't mean "to repair", it means that the building has to be kept in a reasonable state, not that a specific something has to be repaired.
            However, the agreement specifically mentions chimneys and chimney stacks, so there would be (a fairly obvious) presumption that these are meant to be kept in good repair, and being removed/demolished would seem the opposite of "kept in good repair".

            If they wish to change "their" policy, they should change their tenancy agreement(s) in parallel.
            Have they published this policy anywhere?
            What is their internal process for policy changes of this type?
            And where is that published?

            In parallel, is there anything in the Welsh Housing Quality Standards about replacing chimneys with electric fires? That's quite specific for a policy level document.
            The policy refers to "key building components, which have an immediate impact on a dwelling’s integrity, must be in good condition by being free from fault [and] deficiency" and these key building components includes "chimneys". So there doesn't seem to be any particular welsh government policy to remove chimneys from the nation.
            There will be lots of subordinate documentation about particular practices in line with the quality standard, and it might be worth a call to the council planning department to ask.

            If someone has carried out a safety assessment of the chimney and found it to be a category 1 hazard, that might do it on its own, though.
            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

            Comment


              #7
              Do you use the fireplace ( connected to the chimney of course ) with a coal fire ?

              If so, you have the right to continue to do so.
              If you don't, then suggest you do.

              Yet another penny pinching owner who refuses to spend money on keeping the building in good order.
              This forum is full of, "We can't afford to maintain the building, so we will remove the chimney, the gates, put stones on the drive instead of re-surface it, put a fence where the wall was, Cos WE CAN'T AFFORD TO MAINTAIN THE PROPERTY !

              There will be a lease for the property, mentioning the freeholder, and that lease should state freeholder to maintain the premises is good repair.
              Again, I too know nothing about housing associations, so there may not be a lease. May be owned outright by H.A.
              Are you renting the place or have you bought it with a 50 % share with the H.A. ?

              Keep us informed.

              Comment


                #8
                Thanks for ar your useful replies. I've done a little bit more digging now.

                May be an off the wall suggestion but could you pay to repair the chimney yourself? Cheaper than losing a court case!
                If I did that, I'm sure they wouldn't mind. It just seems they're not willing to pay for it. Though I might be able to execrise my legal right for a rent set-off.

                If they wish to change "their" policy, they should change their tenancy agreement(s) in parallel.
                Have they published this policy anywhere?
                What is their internal process for policy changes of this type?
                And where is that published?
                I've asked the solicitor for further details about this policy, but wasn't given any.

                In parallel, is there anything in the Welsh Housing Quality Standards about replacing chimneys with electric fires? That's quite specific for a policy level document.
                There's nothing in the WHQS document regarding replacing chimneys with electric fires. My impression is that they're using the WHQS as an excuse.

                Do you use the fireplace ( connected to the chimney of course ) with a coal fire ?

                If so, you have the right to continue to do so.
                If you don't, then suggest you do.
                Yep. We use[d] it constantly.

                The WHQS documentation refers to the HHSRS (Housing Health and Safety Rating System). Section 29.11 of this HHSRS states:

                The roof structure should be designed, constructed and maintained so as to be strong enough to support the weight of the covering, be securely fixed and to cope with wind and weather imposed loads. Roof coverings should be securely fixed and maintained in repair. Chimney stacks should be properly constructed and maintained and pots securely fixed.

                I really don't see what their issue is. About three months ago we had a call from our HA stating that they wanted to take the scaffolding around our house down (it's been up since February) since it was costing too much to keep it up. The scaffolding is still there. Next time I meet with the solicitor I'm going to ask how much this scaffolding has cost them, and how much it would have cost them to repair the chimney all those months ago.

                This really is a joke of a saga. All I want is for them to do is simply repair a chimney, which was reported as damaged 21 months ago.

                Thanks again for your input. I'll see what's offered to me in the next meeting ....

                Comment


                  #9
                  9 months of scaffolding will have more than paid for the repairs !

                  Ask them "Do you know what you are doing"- "Apparently not"
                  You are prepared to spend for 9 months of scaffolding for nothing"
                  fix my chimney before it comes down. I use a coal fire, and you must continue to let me use my coal fire.

                  Leave it at that.

                  Comment


                    #10
                    What chimney damage has beeb reported? re-pointing, bricks loose or missing, flashing, insecure stack?
                    Who did the inspection?
                    If it is a HA, you should have access to formal complaints procedure before Ombudsman. I doubt you have a legal right to rent set off, unless LL has breached a Council-issued Notice of Improvement.

                    Comment

                    Latest Activity

                    Collapse

                    Working...
                    X