Inaccurate inventory a week after check-in

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    Inaccurate inventory a week after check-in

    Hi all,

    A week after check-in our letting agent has finally sent us the inventory. Despite being 77 pages long and containing dozens of photo's it does not contain any of the defects I pointed out at the check-in appointment or the photo's the inventory clerk took of those defects.

    I've emailed the agent to say we cannot accept it as a true and accurate reflection of the state of the property, what else should we do to protect ourselves and our sizeable deposit?

    Thanks, John

    #2
    You annotate the Inventory text with your amendments, take a copy, sign and return within 7 days.

    Comment


      #3
      Originally posted by JohnC View Post
      77 pages long


      I never saw a schedule of condition for a factory that was that long.

      Please quote the clauses in your agreement which refer to the inventory.

      Comment


        #4
        It's impressively long, yet still contains very little actual content...

        Clauses from the AST below.

        A definition:

        “Fixtures and Fittings” includes the Landlords fixtures fittings furniture and effects in the Premises including the
        floor ceiling and wall covering and all matters specified in the Inventory and Schedule and of Condition

        A clause on property condition:

        Not to remove any of the Fixtures and Fittings specified in the Inventory and Schedule of
        Condition and to pay for the repair or replacement of any items which have been broken, lost,
        damaged or destroyed during the Tenancy. Any replacements will need to be first approved by
        the Landlord or the Landlord's Agent. Where the Landlord’s belongings Fixtures and Fittings are
        moved or placed in storage of any kind in breach of this clause, any resulting damage to such
        items will be at the cost of the Tenant.

        A clause on paying for the check-in:

        To pay the sum of £125 plus VAT for the execution of a check-in to be carried out by an
        independent inventory clerk arranged by the Agent.

        Appointments:

        If the Tenant or any Agent appointed by him shall not keep a mutual appointment made by the
        Landlord or the Landlord's Agent to check the Inventory and Schedule of Condition at the
        termination or sooner ending of the tenancy to pay the reasonable additional costs incurred by
        the Landlord or the Landlord's Agent in making and attending a second appointment to check the
        Inventory and Schedule of Condition. If neither the Tenant nor his Agent shall keep the second
        appointment the Checkout will take place and any assessment made by the Landlord or the
        Landlord's Agent shall be final and binding on the Tenant.

        A clause on additional cost if property is not returned vacant:

        To pay to the Landlord any additional reasonable expenses incurred by the Landlord in
        checking the Inventory (which cannot be checked until all goods belonging to the
        Tenant or members of his household have been removed)

        Insurance:

        To hold adequate insurance to protect the Tenant's personal possessions and accidental damage
        caused by the Tenant to the Landlords Fixtures and Fittings at the Premises as described in the
        Check-in Inventory and Schedule of Condition.

        The landlords insurance commitment:

        To insure the Premises and the Fixtures and Fittings specified in the Inventory and Schedule of
        Condition to their full value with some insurance company of repute normally covered by a
        householder’s comprehensive policy.

        and landlords safety commitment:

        The Landlord confirms that the items within the Premises including Fixtures and Fittings and as
        detailed within the Inventory and Schedule of Condition comply with the Furniture and
        Furnishings (Fire) (Safety) Regulations 1988 as amended in 1993.

        Regards, John

        Comment


          #5
          All noted.

          For the record please confirm the agreement does not contain any of the following:

          (a) a definition of the "Inventory and Schedule of Condition"

          (b) provisions for settling the Inventory and Schedule of Condition

          (c) a statement that the letting includes the Fixtures and Fittings or the items list in the Inventory and Schedule of Condition

          (d) any reference to the Inventory and Schedule of Condition in any provision requiring the tenant to repair or decorate the property or return it to the landlord in a specified condition at the end of the tenancy

          The drafting is pretty amateurish. Just for fun I shall post some observations on it a bit later.

          Comment


            #6
            Well, many of my inventories are 70 pages long... but they are extremely detailed.

            But, the inventory and check in reports should be 2 different documents. The check in should include anything you noted with the clerk. The inventory is everything they noticed, or failed to, all on their lonesome.

            The 2 together are your protection... so ask for a copy of the check in REPORT, not the declaration that you signed for the keys, but the report that contains eveything you noted and the clerk took pictures of.

            Regardless of whether you get it or not, take the inventory and make notes, in any colour than black, sign and date each page as you finish annotating it, take pictures of each defect, and return a signed and dated copy to the agent. Keep your own, original copy, to be used at Check Out. All of which, if the inventory was available at check in, is what you should have been advised to do by the clerk at that time!

            Comment


              #7
              “Fixtures and Fittings” includes the Landlords fixtures fittings furniture and effects in the Premises including the floor ceiling and wall covering and all matters specified in the Inventory and Schedule and of Condition

              Referring to “all matters specified in the Inventory and Schedule and of Condition” means that the fixtures and fittings includes the wants of repair mentioned in the schedule.

              Not to remove any of the Fixtures and Fittings specified in the Inventory and Schedule of Condition and to pay for the repair or replacement of any items which have been broken, lost, damaged or destroyed during the Tenancy. Any replacements will need to be first approved by the Landlord or the Landlord's Agent. Where the Landlord’s belongings Fixtures and Fittings are moved or placed in storage of any kind in breach of this clause, any resulting damage to such items will be at the cost of the Tenant.

              The words “specified in the Inventory and Schedule of Condition” are unnecessary as fixtures and fittings have been defined. Nothing in the clause says that the tenant must not put the landlord's belongings in storage.

              If the Tenant or any Agent appointed by him shall not keep a mutual appointment made by the Landlord or the Landlord's Agent to check the Inventory and Schedule of Condition at the termination or sooner ending of the tenancy to pay the reasonable additional costs incurred by the Landlord or the Landlord's Agent in making and attending a second appointment to check the Inventory and Schedule of Condition. If neither the Tenant nor his Agent shall keep the second appointment the Checkout will take place and any assessment made by the Landlord or the Landlord's Agent shall be final and binding on the Tenant.

              If the appointment is made by the landlord it is not mutual. It is the property which needs to be checked, not the schedule. The last sentence is probably an unfair term.

              To pay to the Landlord any additional reasonable expenses incurred by the Landlord in checking the Inventory (which cannot be checked until all goods belonging to the Tenant or members of his household have been removed)

              What additional expense could be incurred? Why can the checking (again the reference is to the inventory and not the contents) not be done if the tenant's goods are in the property?

              To hold adequate insurance to protect the Tenant's personal possessions and accidental damage caused by the Tenant to the Landlords Fixtures and Fittings at the Premises as described in the Check-in Inventory and Schedule of Condition.

              Requiring the tenant to insure his own belongings is an unfair term. It is unwise for a landlord to require the tenant to insure his (the landlord's) belongings. It is doubly unwise if the landlord also agrees to insure his own belongings.

              To insure the Premises and the Fixtures and Fittings specified in the Inventory and Schedule of Condition to their full value with some insurance company of repute normally covered by a householder’s comprehensive policy.

              See previous comment. From the landlord's point of view such a clause is unnecessary and may prove unwise in certain circumstances. There may be difficulty in finding an insurance company of repute normally covered by a householder’s comprehensive policy.

              The Landlord confirms that the items within the Premises including Fixtures and Fittings and as detailed within the Inventory and Schedule of Condition comply with the Furniture and Furnishings (Fire) (Safety) Regulations 1988 as amended in 1993.

              Another clause containing words rendered unnecessary by a definition. It is in any event not really necessary, but does no harm.

              Comment


                #8
                Originally posted by Stef Cooke View Post
                Well, many of my inventories are 70 pages long... but they are extremely detailed.

                But, the inventory and check in reports should be 2 different documents. The check in should include anything you noted with the clerk. The inventory is everything they noticed, or failed to, all on their lonesome.

                The 2 together are your protection... so ask for a copy of the check in REPORT, not the declaration that you signed for the keys, but the report that contains eveything you noted and the clerk took pictures of.

                Regardless of whether you get it or not, take the inventory and make notes, in any colour than black, sign and date each page as you finish annotating it, take pictures of each defect, and return a signed and dated copy to the agent. Keep your own, original copy, to be used at Check Out. All of which, if the inventory was available at check in, is what you should have been advised to do by the clerk at that time!
                Have a look at these two threads:

                http://www.landlordzone.co.uk/forums...s-of-condition

                http://www.landlordzone.co.uk/forums...dard-of-repair

                Comment


                  #9
                  Ah! I see what you mean.

                  Yes, my Inventory does always include the schedule of condition - and is clearly titled as such- and has the Inventory and Condition Notes clearly separated. Nonetheless, they are indeed conflated. That is what the industry now expects, what the 2 largest associations teach on their courses and demand of their members. It is worth noting that it is clear to me, reinforced in the association guidelines, at the condition check is there to protect the tenant.

                  How the AST refers to it is a mystery to me... many of the ones I have seen are utterly impenetrable. Sometimes because of a weird use of language, verbose, consonant cluttered, written by someone who would slide 'floccinaucinihilipilification' in, if they could! Others because of low literacy levels, lack of understanding regarding punctuation etc.

                  Comment


                    #10
                    Originally posted by Lawcruncher View Post
                    All noted.

                    For the record please confirm the agreement does not contain any of the following:

                    (a) a definition of the "Inventory and Schedule of Condition"
                    There is no definition of it.

                    Originally posted by Lawcruncher View Post
                    (b) provisions for settling the Inventory and Schedule of Condition
                    There is no provision for settling, every mention of 'Inventory and Schedule of Condition' is quoted in my post above.

                    Originally posted by Lawcruncher View Post
                    (c) a statement that the letting includes the Fixtures and Fittings or the items list in the Inventory and Schedule of Condition
                    Re Inventory and Schedule of Condition, as above, every mention is quoted in my first response to you.

                    Fixtures and fittings are mentioned in other places, i.e. deposit can be used to replace/repair fixtures and fittings, but the agreement is for:

                    The Landlord lets to the Tenant the residential premises known as *address removed* (“the Premises”)

                    No mention of fixtures and fittings being included.

                    Originally posted by Lawcruncher View Post
                    (d) any reference to the Inventory and Schedule of Condition in any provision requiring the tenant to repair or decorate the property or return it to the landlord in a specified condition at the end of the tenancy
                    Again every mention of 'Inventory and Schedule of Condition' was quoted earlier. For fixtures and fittings there is quite a lengthy section:

                    Condition of Premises, Repair and Cleaning
                    5.2.1 To keep the Premises in good repair. The Tenant agrees to keep the interior of the Premises including any Fixtures and Fittings in good repair and condition throughout the Term and to safeguard them from destruction or damage.
                    5.2.2 To pay for the replacement or repair of any Fixtures and Fittings that are broken lost stolen damaged or destroyed during the Term or at the option of the Landlord to compensate for these items.
                    5.2.3 To use the Premises in a Tenant like manner and to take reasonable care of the Premises including any Fixtures and Fittings and to keep the Premises and any Fixtures and Fittings in a clean and tidy condition throughout the Term. To deliver up the Premises and the Fixtures and Fittings at the termination of the Term in a clean and tidy condition and in good order (fair wear and tear excepted) and in accordance with the Tenant’s obligations and to deliver all keys for the Premises to the Landlord or Agent.
                    5.2.4 To replace within a reasonable time all cracked or broken glass at the Premises during the Tenancy with the same quality glass as soon as reasonably possible.
                    5.2.5 To keep all electric lights in good working order and in particular to replace all fuses bulbs and fluorescent tubes as and when necessary.
                    5.2.6 To keep all smoke detectors / alarms in good working order; and in particular to test them once a month and replace all batteries as and when necessary.
                    5.2.7 To pay for the reasonable professional washing and cleaning of all net curtains, linens, counterpanes, blankets, carpets, upholstery, curtains, blinds and similar articles that have been soiled during the Tenancy and for the property including all upholstery, curtains, blinds and carpets to be professionally cleaned prior to the termination of the Tenancy.
                    5.2.8 To keep the drains free from obstruction and to have all the chimneys and flues (if any) to the Premises cleaned and swept as often as necessary.
                    5.2.9 To keep all electrical appliances and apparatus in good working order during the Tenancy and to pay the television set licence fee for any television set or device requiring such licence.
                    5.2.10 To notify the Landlord or the Landlord’s Agent immediately in writing of any damage destruction or loss that may happen at the Premises or to the Fixtures and Fittings howsoever caused.
                    5.2.11 To notify the Landlord or the Landlord’s Agent immediately in writing should repairs become necessary for which the Tenant is not liable and in no circumstances (except in the case of an emergency) should the Tenant arrange or give instructions for any such repairs to be carried out except at the written request of the Landlord or the Landlord’s Agent otherwise the Tenant shall be responsible for the cost of any repairs carried out in breach of this provision. In the event of an emergency repair, the Landlord will reimburse the Tenant any reasonable costs incurred by the tenant in carrying out the Landlords obligations.
                    5.2.12 Not to carry out any redecoration at the Premises or any part including the Fixtures and Fittings without the previous consent in writing of the Landlord or Landlord’s Agent, such consent not to be unreasonably withheld and in the case of any such breach the Tenant shall be responsible for the entire cost of the redecoration at the expiration or sooner termination of the Tenancy.
                    5.2.13 Not to make any alteration or additions to the Premises or Fixtures and Fittings without the prior written approval of the Landlord or Landlord’s Agent, such approval not to be unreasonably withheld or delayed.
                    5.2.14 Not to remove any of the Fixtures and Fittings specified in the Inventory and Schedule of Condition and to pay for the repair or replacement of any items which have been broken, lost, damaged or destroyed during the Tenancy. Any replacements will need to be first approved by the Landlord or the Landlord's Agent. Where the Landlord’s belongings Fixtures and Fittings are moved or placed in storage of any kind in breach of this clause, any resulting damage to such items will be at the cost of the Tenant.
                    5.2.15 To take all appropriate precautions to prevent damage occurring to the Premises and any installations and Fixtures and Fittings in the Premises which may be caused by frost or cold weather including but not limited to providing adequate heating and ventilation to the Premises.
                    5.2.16 To take all reasonable precautions to prevent damage to the Premises and any installations and Fixtures and Fittings which may be caused by any inclement weather conditions, including but not limited to closing windows to prevent precipitation (rain/snow etc) from entering the Premises.
                    5.2.17 To keep the windows of the Premises clean internally and externally.
                    5.2.18 Upon the Landlord or the Landlord’s Agent giving the Tenant written notice requiring the Tenant to carry out any repairs or other works for which the Tenant is responsible under this Agreement to carry out the same within one month or sooner where appropriate and if the Tenant shall fail to comply with such notice then the Landlord or Landlord’s Agent may enter upon the Premises with workmen and carry out such repairs or other works at the Tenant’s expense.

                    Originally posted by Lawcruncher View Post
                    The drafting is pretty amateurish. Just for fun I shall post some observations on it a bit later.
                    I hope that helps?

                    Regards and thanks, John

                    Comment


                      #11
                      The drafting is pretty dire.

                      We can look at the clauses and discuss what the strict effect of them is and then go on to ask what a court would make of them. As to the former, we can start by setting out what a correctly drafted agreement would say and then contrast that with what your agreement says.

                      When a property is let furnished there are two distinct things which may be required.

                      The first is a list of the contents included in the letting. This is for the benefit of both landlord and tenant. A well drawn up list will note any defect in any item, e.g. "6 white cups (one with handle missing); 5 hand towels (one well worn) etc". It protects both landlord and tenant because at the end of the tenancy the list can be referred to see what was included and if any item was damaged at the start of the tenancy. The tenancy agreement must refer to the list otherwise it just sort of hangs about. The agreement should impose obligations on the tenant with respect to the items, such as replacing any damaged items.

                      The second is a schedule of condition of the property. This is a thing much misunderstood in that it is believed to be for the benefit of landlords whereas in fact it is for the benefit of tenants. The misunderstanding arises because it is widely but erroneously believed that a tenant is under no obligation to leave the property in a better condition than he found it. The tenant's obligations are as set out in the tenancy agreement*, subject to various protections afforded by the law, which I have set out elsewhere. If the agreement says the tenant is to leave the property in a certain condition then that is what he must do, subject only to the protections afforded by the law. The purpose of a schedule of condition is to excuse the tenant from making good any pre-existing defect. That purpose is achieved by referring to the schedule in the tenant's repairing obligations and providing that the tenant is not under any obligation to leave the property in any better condition than recorded in the schedule. If the schedule is not incorporated into the agreement in some way it strictly has no effect.

                      Since a list and an inventory form part of the agreement they ought, just like any other term of the agreement, to be agreed before it is signed. They can however be agreed later, but the agreement needs to set out a procedure which must include reference to a third party if agreement cannot be reached. Whatever the agreement says or does not say, the parties are free to to agree and if they do then what is agreed forms part of the agreement. If they cannot agree and there is no mechanism then there is no obligation to agree. If there is a mechanism but it does not include reference to a third party then you have an agreement to agree which is void.

                      Whilst ideally the list and schedule should be separate documents, they can be combined in one document so long as it is borne in mind that it serves two distinct functions.

                      Your agreement is defective on several counts:

                      · the Inventory and Schedule of Condition is not defined or incorporated in the agreement in any way

                      · the contents are not included in the letting

                      · the tenant's repairing obligations are not qualified by reference to the Inventory and Schedule of Condition

                      · there is no mechanism for agreeing the Inventory and Schedule of Condition

                      So what if there is a dispute? The question is what can the court write into the agreement.

                      Assuming it is agreed or determined what the Inventory and Schedule of Condition is, then I do not think there is much problem in assuming it must form part of the agreement. There should also be no problem in establishing that the letting is furnished and includes the contents. The lack of any qualification of the tenant's repairing obligations is more problematic. Whilst the court can ask why the condition of the property is included in the Inventory and Schedule of Condition, I doubt it can go so far as to write in the qualification unless rectification is available because the point was agreed during the negotiations. The court is also going to be in some difficulty if the Inventory and Schedule of Condition was never settled. The best a draft can do is offer rebuttable evidence of the condition and contents at the start of the tenancy.

                      *Assuming of course that the agreement is not silent on the tenant's repairing obligations.

                      Comment


                        #12
                        Originally posted by Lawcruncher View Post
                        The drafting is pretty dire.

                        We can look at the clauses and discuss what the strict effect of them is and then go on to ask what a court would make of them. As to the former, we can start by setting out what a correctly drafted agreement would say and then contrast that with what your agreement says.

                        When a property is let furnished there are two distinct things which may be required.

                        .
                        I guess I should clarify here that the property is unfurnished.

                        My main concern is the letting agent trying to deduct cost from the deposit to 'restore' the property to a condition that it was never in, i.e. replacing the lounge carpet which has a massive stain on it (hidden under a rug).

                        Regards, John

                        Comment


                          #13
                          Very useful Lawcruncher, thank you.

                          I use the RLA model tenancy agreement for all my tenancies and have just looked through the latest version. There is only one reference to an inventory or schedule of condition thus:

                          "Pay our reasonable charges (including our costs) for preparing and checking any inventory or condition schedule at the beginning and end of the tenancy."

                          As I don't make such a charge I cross out this term in my agreements. I am now concerned that my carefully prepared inventories are next to useless. I have written to the RLA to ask for their view on this matter and will report back when I get a response.

                          I also prepare 2 x CD Roms of photographs of the property and contents at the start of the tenancy and this has text to this effect written onto the face of the CD along with signatures and dates. Presumably, I ought to also include some reference to these photos in an addendum to the agreement?

                          Comment


                            #14
                            There are two stages to consider. The first is to consider what an agreement actually says and what the strict effect of the words (or lack of words) means. Assuming no ambiguities, that is not a difficult job so long as you look at the text carefully, though of course experience and having your brain wired up to spot drafting errors helps. We can take a straightforward example from another thread:

                            ...providing [...] all final bills have been produced to the Landlord/managing agent...

                            We "know" the intention behind the words, which is to produce proof that the final bills for services have been paid. But that is not what it says at all. First, it just says "bills" without specifying what they relate to. Secondly, the requirement is simply to produce the final bills; it does not say "receipted bills".

                            That takes us to the second stage: To what extent can either party argue along the lines of "it's obvious what is meant" when the text does not support what is "obviously meant"? That takes us into the difficult area of the interpretation of documents. There we have a classic case of the need for certainty conflicting with the need for justice. That means there are rules, but they are flexible. In advance you cannot be sure what the outcome will be, but once you have the outcome you can see its logic!

                            I said in another thread: "The rules for the interpretation of documents are quite complex; whenever I begin to think I understand them the courts move the goalposts. Very roughly and according to my understanding: When something is put in a legal document there is an assumption that the parties meant something by it and the court will try to extract a meaning. If the provision is ambiguous it will be "construed against the grantor" which in the case of tenancies means it will be interpreted in favour of the tenant so long as the result is not absurd. If some essential ingredient is missing the court will declare the provision void for uncertainty. If the provision is nonsensical the court will say so. Whilst rectification may be ordered where there is a clear mistake, there is an assumption that a legal document represents some sort of finality. Where a provision is clear and does not fly in the face of commercial reality courts are reluctant to go over the negotiations between the parties to try and see what they agreed because it is recognised that things may change during the course of negotiations. If a party is legally represented and the document does not reflect what he agreed he is more likely to have a claim against his lawyer than against the other party."

                            It may be that a court would conclude that schedules of condition and inventories have become so commonplace in short term lettings that it can be taken as implicit that they are part of any tenancy agreement. A common sense argument that it is obvious what they were prepared for cannot be dismissed out of hand. However, the court may take the view that it should not condone inadequate drafting, even if widespread.

                            The answer is to do all you can to avoid ending up in court arguing over the interpretation of a document. If the schedule and inventory are properly hooked up to the tenancy agreement you will not need to litigate over whether they are impliedly incorporated. Pending clear guidance from the courts, any form of agreement which does not expressly incorporate the schedule and inventory has to be regarded as defective, whoever drafted it and however much it cost.

                            Comment


                              #15
                              So I've just had a conversation with the RLA about this. Their view is that references to inventories and schedules of condition are not incorporated into their standard model as they are not used universally by landlords, which I understand to some extent. Their suggestion was to add appropriate wording to an addendum. Having read through your responses Lawcruncher, I would be concerned about drafting anything myself without guidance. Having also now looked at the Government's model AST, I am not convinced that its just a question of adding clauses. All the sections about repairs in this model make reference to the inventory and report of condition and I assume that I would need to somehow amend the RLA model to do the same? Unless there is perhaps some way of adding an addendum clause to the effect that all references in the AST to repairs, renewals and damage are with reference to the agreed inventory and schedule of condition?

                              I'm a bit out of my depth here! any thoughts or model paras you could point me to?

                              Comment

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