Unusual Circumstances?

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    Unusual Circumstances?

    I am a tenant not a landlord. I'm posting here (first time) because I think that the forum members will be well informed, more so than other tenants who may be concerned simply with their own circumstances and have little general experience. As suggested in the sticky, here are the basics:


    Q1 – Where is the rented property located (England / Wales / Scotland / N Ireland)? England

    Q2 – What type of Tenancy Agreement (TA) is this e.g. sole tenant / multiple tenant / room only?Two tenants

    Q3 – What date did current TA start dd/mm/yy? 4th Aug 2016

    Q4 – How long was initial fixed term (6/12/24 months / other)? 6M

    Q5 – Does the TA state that rent is due weekly? / 4-weekly? / per calendar month (if so, on what same date each month)? monthly

    Q6 – Did the TA require a tenant damage deposit to be paid? If so, on what date was this paid (dd/mm/yy)? Yes £750, 20th July 2016

    Q7 – If your query relates to a notice for repossession from the landlord (a Section 8 or Section 21 notice) or a tenants's notice to quit to the landlord, please provide the exact date the notice was sent/received (dd/mm/yy). Tenant to landlord, 5th Sept 2016 by email and acknowledged

    Q8 – Does the landlord live in the same property as the tenant? no but see post

    The tenancy was made via an online service. At meetings prior to signing the agreement assurances were given by the landlord. These related to the peculiar circumstances of the property - a friend of the landlord lives in a shed at the end of the garden and was referred to as 'the gardener'.

    The friend ("D") has no water, washing, cooking or toilet facilities in his sleeping accommodation. These are situated in a small 2m x 4m addition to the back of the main house which we (the tenants) occupy.

    We were told variously that D's presence would be unnoticeable and that we would 'never see him' as he has a separate access to his shed via next door's garden and a gap in the hedge which would enable him to walk from the road, through the garden next door to the top of the gardens some 30metres away.

    As things turned out D does not use this route. He uses the route through the attached garage (one road door, one rear door) and we encounter him several times a day making his way to or from his shed to his 'utilities addition'. Although he is a pleasant individual we felt we were doing a lot more sharing than expected.

    The garden is supposed to be shared but it is used extensively by D and his friends. We feel we cannot enjoy the quiet and seclusion a garden would normally afford. If he doesn't use the 'next door' route he has to walk through it all the time.

    There is a small additional hut, like a shepherd's hut, which has been fitted out for sleeping overnight, in the garden (it is a big garden!). We were told that this was available to use by our own guests but it turns out that the household cats, who previously occupied the main house, have been given it to use as a cat house and have made it their own in the way that only cats can. We were not informed of this arrangement.

    We discovered by accident that the hot water immersion heater which supplies the house also supplies D's utility area. This is the only source of hot water in the whole property so we were paying for his hot water and that of his guests (showers etc)

    The property is heated by an electric central heating system. This takes 15kW when in use. The supply to the house is 20kW (80 Amp supply). When you take all the electrical appliances in possible use (it's all electric no gas or oil) the supply is inadequate for the house occupiers never mind an additional garden dweller. We consulted a qualified electrician who told us that in the event of overload, which was likely, the company fuse would blow and Western Power would have to visit to replace it. Western Power visited with a view to installing additional supply capacity and quoted around £8000. The landlord has not yet taken steps to remedy this situation.

    The property has two wood burners in the single downstairs room; no CO detectors are fitted.

    No smoke detectors are fitted.

    Not directly relevant but a consideration: no local authority approval has been obtained for use of the garden building as a separate dwelling, which it clearly is.

    In view of all this the Landlord reluctantly agreed that the tenancy should end. We gave 4 weeks notice (see above). The landlord now wants a penalty payment of £350 to her to account for the 'chaos' we have caused.

    Do we have to pay it? Should we? We feel that our inconvenience is far greater than hers and if anything we should be seeking compensation!

    That's a bit long winded but I know sometimes threads wander all over the place because the poster knows all the facts but the responders don't...

    #2
    There is no way to properly end the tenancy during the fixed term without a court order or the mutual agreement of the tenant(s) and landlord.

    If the ending of the tenancy is conditional on the £350 payment, then it is part of the agreement to end the tenancy.

    If the landlord has just had a good idea after agreeing to end the tenancy, it may not be part of the agreement to end the tenancy.

    It depends how and what was actually agreed, when it was agreed and the exact sequence of events.

    The property sounds a complete nightmare and I can understand why you'd want to leave.
    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


      #3
      This sounds to me like a pretty fundamental breach of your agreement. Is the arrangement ,mentioned in the written
      tenancy agreement at all, and if so what are the exact words. Perhaps so fundamental a breach as to permit you, the distressed party to terminate performance of the contract or to demand that the landlord provide you with alternative accommodation at his cost.

      Pending your answer to the above I would be inclined to document the situation as well as you can (photos, webcam, several formal letters to landlord with certificates of postage), and then if not resolved, just subtract energy payments from your rent, subtract partial council tax from your rent, withold all the rest of your rent, and then state that this is such a fundamental breach of agreement that your use of the property is frustrated, that the contract you have with the landlord is void, and that you are leaving without further notice and he can sue you for the rent if he regards that as appropriate.

      But your documentation is critical. Normally I don't advise tenants withhold rent for almost any reason, but having an additional occupier imposed on you is fairly extreme (if it is totally unexpected from the agreement you have).

      Comment


        #4
        Originally posted by jpkeates View Post
        There is no way to properly end the tenancy during the fixed term without a court order or the mutual agreement of the tenant(s) and landlord.

        If the ending of the tenancy is conditional on the £350 payment, then it is part of the agreement to end the tenancy.

        If the landlord has just had a good idea after agreeing to end the tenancy, it may not be part of the agreement to end the tenancy.


        It depends how and what was actually agreed, when it was agreed and the exact sequence of events.

        The property sounds a complete nightmare and I can understand why you'd want to leave.


        Thanks for that JP - I have looked at our email 'trail'. On the 3rd Sept the landlord agreed that the tenancy should end early. No mention is made of money until an email on 7th Sept when she asks us to pay for all of October even though we agreed (in writing) that we would leave on the 14th October. It amounts to an extra £350 or so.

        Comment


          #5
          Originally posted by AndrewDod View Post
          This sounds to me like a pretty fundamental breach of your agreement. Is the arrangement ,mentioned in the written
          tenancy agreement at all, and if so what are the exact words. Perhaps so fundamental a breach as to permit you, the distressed party to terminate performance of the contract or to demand that the landlord provide you with alternative accommodation at his cost.

          Pending your answer to the above I would be inclined to document the situation as well as you can (photos, webcam, several formal letters to landlord with certificates of postage), and then if not resolved, just subtract energy payments from your rent, subtract partial council tax from your rent, withold all the rest of your rent, and then state that this is such a fundamental breach of agreement that your use of the property is frustrated, that the contract you have with the landlord is void, and that you are leaving without further notice and he can sue you for the rent if he regards that as appropriate.

          But your documentation is critical. Normally I don't advise tenants withhold rent for almost any reason, but having an additional occupier imposed on you is fairly extreme (if it is totally unexpected from the agreement you have).
          There is no mention in the tenancy agreement about any of this - not the sharing premises with the friend D, nor the shared hot water. All D's electricity goes through our meter and we have to apportion his contribution according to a check meter in his utility area. But we had to install a check meter for the immersion heater at our own expense to see how much that uses per week, and split the cost. That does not reflect actual use though, because who knows how much hot water each of us use. The landlord has said she had no idea that this would be happening but D has referred to the problem as 'insurmountable' in the past tense so we think they knew but thought we wouldn't find out. It was 'insurmountable' because any additional electrical load to provide independent hot water would have been the last straw.

          We are concerned that she will withold our deposit of £750, held in a DPS. Then we would have to request Alt Disp Res and make a detailed paper submission to support our counterclaim. It seems a bit mean but there would be no way of avoiding exposing the occupation arrangements, which may then be scrutinised as being in breach of local planning regulations - the PP for the shed was for use as a store not a living space.

          Comment


            #6
            If you're happy that the agreement to end the tenancy was made on 3rd September and is not contingent on anything else (i.e. the agreement is unequivocal) you're probably OK to simply decline the request and rely on the agreement.

            If you imagine the worst that could happen, the landlord decides to renege on her agreement of 3rd September and insists that the fixed term continues. You move out anyway and she tries to sue you for the remainder of the rent for the fixed term. Would the agreement you reached on the 3rd be enough to show a court that she'd agreed on something and then subsequently changed her mind?

            If so, I'd move out as soon as humanly possible, even if it means putting stuff in storage and staying in a bed and breakfast.
            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
              Originally posted by jpkeates View Post
              If you're happy that the agreement to end the tenancy was made on 3rd September and is not contingent on anything else (i.e. the agreement is unequivocal) you're probably OK to simply decline the request and rely on the agreement.

              If you imagine the worst that could happen, the landlord decides to renege on her agreement of 3rd September and insists that the fixed term continues. You move out anyway and she tries to sue you for the remainder of the rent for the fixed term. Would the agreement you reached on the 3rd be enough to show a court that she'd agreed on something and then subsequently changed her mind?

              If so, I'd move out as soon as humanly possible, even if it means putting stuff in storage and staying in a bed and breakfast.
              This is the email of the 3rd Sept, received after an informal verbal discussion earlier in the day:

              Dear *****,* In the confusion yesterday I have mislaid your phone number. I did tell D about the 2 things that make you want to leave, stressing that it wasn't him per se but having 'someone' at close proximity. He understood very well and added that it was unfortunate that his Aunt, and his 2 friends decided to visit just then. (He can't say no) He hasn't had* friends to* stay for ages.
              I'm* really very sorry that you have felt so encumbered and I can quite see why, now that you have explained from your view point..* I feel upset that you haven t enjoyed your time at ***** and that it has caused you both so much stress and frustration.*
              Thank you for pointing out the electricity situation. I would nt have known until it fuzed. I still have to remedy that. Somehow.
              Let me know as soon as you find a place so that we can make a date for your leaving and I can recuperate your deposit.
              Again how sad that what we all thought was really good, wasn't.
              But as they say endings herald new beginnings.*
              Regrets and kind regards.* *****



              It looks like a written agreement to end the tenancy without penalty (since none is mentioned)

              Comment


                #8
                I don't think it's as clear as that.

                The agreement clearly doesn't conclude here, because there's at least one thing you need to advise and "we" can then make a date.

                "[L[eaving" and "recuperate your deposit" aren't really "ending the tenancy" or "bringing the tenancy to an early end", which is what I was hoping for.

                You'll be balancing £350, which is a known amount of pain, with struggling to get your deposit back (unknown amount of pain, but probably ultimately successful) plus possible attempt by landlord to sue (which feels a little unlikely to me).
                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


                  #9
                  This was from 7th September:

                  Dear ****, may be its a bit soon to ask, but have you any idea when you think you will be leaving?* When we met I said of course I wouldn't hold you to staying the allotted time, ( term ending 31st January) as you are both so dissatisfied and unhappy.* If you find another place this September,* I would ask you to pay*the rent for*October.* I will have to come back and sort everything out

                  That's the first mention of an additional payment. And we replied on 10th Sept:

                  Dear ****,

                  Now that I've had a chance to do the family talk we're able to give you a firm date for us moving out - 14th October 2016.


                  Then we received on 11th Sept:

                  ........You didn't mention the rent money in your email.* As we are 'out of the box' now,
                  I cannot press you because I have agreed that you can break the fixed term,*neither do I want to emotionally blackmail you as to my situation, however just to say a full month would be greatly appreciated......

                  Comment


                    #10
                    It'll depend on your tenancy agreement, but normally rent is due on in advance on a particular date and wouldn't normally be refundable (because the tenancy agreement doesn't contain anything that suggests that it would be).
                    That's not the most ethical position, but it is what it is.
                    Many landlord happily refund overpayment or agree an underpayment of the final period's rent, but it's up to them.

                    I don't know when your rent is due, 4th of each month?, but if it's before 14th October, I think you're obliged to pay it, and are now simply trying to negotiate a discount.
                    The landlord is probably not aware of the position either.
                    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


                      #11
                      Originally posted by jpkeates View Post
                      It'll depend on your tenancy agreement, but normally rent is due on in advance on a particular date and wouldn't normally be refundable (because the tenancy agreement doesn't contain anything that suggests that it would be).
                      That's not the most ethical position, but it is what it is.
                      Many landlord happily refund overpayment or agree an underpayment of the final period's rent, but it's up to them.

                      I don't know when your rent is due, 4th of each month?, but if it's before 14th October, I think you're obliged to pay it, and are now simply trying to negotiate a discount.
                      The landlord is probably not aware of the position either.
                      I see... would that mean that one party could be in breach of one or more terms of the agreement yet still hold the other party to the terms which favour them?

                      Comment


                        #12
                        Can the OP look into unwinding the tenancy under the Consumer Rights Act 2015?
                        I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                        I do not answer questions through private messages which should be posted publicly on the forum.

                        Comment


                          #13
                          Yes, unless the terms are specifically linked or the whole contract is void.

                          Andrewdodd is correct that the whole arrangement could be void, but that would be a bit of a stretch to me (but it's a reasonable point and I could easily be wrong).
                          But a contract of some sort was obviously intended, and while what has emerged is a bit of a sitcom, there is a property, you are living in it and rent has been paid - so it's not easy to imagine the whole agreement would be easy to set aside.

                          But, fundamentally, one party breaching a contract term doesn't entitle the other party to ignore the rest of the agreement or to pick their own term to breach as a quid pro quo.
                          If the specific term breached has a corresponding obligation on the other party, the breach might allow the other party to ignore their obligation, but that tends to open a can of worms all of its own.
                          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

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