PROBLEM AREAS: 1) Tenancy deposits 2) Disrepair 3) Unlawful - - PDF document

20/03/2018 1 Common residential landlord and tenant disputes

22 March 2018 By Elizabeth Dwomoh elizabethdwomoh@lambchambers.co.uk

Focus of the seminar

The aim of this seminar is to focus on some of the most common problems faced by tenants in respect of their landlords and to identify practical solution to these problems.

PROBLEM AREAS:

1) Tenancy deposits 2) Disrepair 3) Unlawful eviction

20/03/2018 2 (1) Tenancy deposits

Common deposit problems

The most common problems faced by tenants in relation to their deposits are when the landlord:

• Fails to protect the deposit

upon receipt;

• Fails to release the deposit

after the end of the tenancy;

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• Unlawfully makes

deductions from the deposit.

Failure to protect the deposit upon receipt

S.213 HA 2004: Requirements relating to tenancy deposits

• Protect the deposit by registering it with an

authorised scheme

• Comply with the initial requirements of the

authorised scheme within 30 days of receipt of the deposit; and

• Serve on the tenant the prescribed information

within 30 days of receipt of the deposit.

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No longer necessary for landlord to re-protect the deposit

• r

re-serve the prescribed information if this has already been done in respect of a deposit that was originally received

• n or after 6th April 2007, which has been

renewed or became a rolling period tenancy.

Sanctions for non-compliance by a landlord

• Since 6th April 2007, if a landlord has failed to comply with his or her
• bligations under ss.213(3) and 213(6) of the HA 2004, a tenant can make

a claim for payment of between one to three times the value of the deposit.

• The Court can also order repayment of the deposit directly to the tenant
• r payment into an authorised scheme.
• Even when the tenancy has ended, the Court must order the landlord to

pay between one to three times the value of the deposit to the tenant, and if so minded, the repayment of the deposit to the tenant..

• Further, even if a deposit was paid before 6 April 2007, a landlord is barred

from serving a s. 21 notice unless the deposit has been protected or returned to the tenant in full.

Failure to release a protected tenancy deposit at the end of the tenancy

20/03/2018 5 Practical steps for a tenant’s recovering deposit

The tenant should:

• contact the landlord directly
• check to see if his or her deposit scheme
• ffers ADR
• if the landlord does not consent to ADR within

the scheme, consider bringing a small claims in the County Court to recover the deposit

Unlawful deduction from a protected tenancy deposit

A landlord is legitimately entitled to deduct sums from a tenancy deposit for items such as unpaid rent, cleaning and damage beyond fair wear and tear.

Practical steps for recovering sums unlawfully deducted from a deposit

A tenant should

• request a fully costed itemised bill from the landlord
• compare the itemised bill with the checking out inventory
• request copies of the receipts for the items purchased or

service paid for by the landlord and deducted from the deposit

• put a complaint in writing to the landlord – indicating how

much of the deposit should be returned

• consider ADR or a small claim

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(2) Mice, Mould, and Mildew An Overview of Disrepair What 3 elements are needed to establish a claim for disrepair?

Is there a breach of a repairing covenant?

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Implied Covenant

11.— Repairing obligations in short leases. (1) In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor— (a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

• (b) to keep in repair and proper working order

the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and (c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

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Is there an express covenant in the lease which goes beyond section 11? “good condition”

Is the complaint caused by disrepair?

• Damp?
• Asbestos?
• Mice?

20/03/2018 9 Has the Landlord Been put on Notice???

Common Scenario

My property is in disrepair and my

landlord is refusing to carry out any

• works. Can I withhold my rent???

Options...

Withholding rent?

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Any constructive steps that the tenant can take?

• Reduction in rent?
• Contacting local authority?
• Undertaking work at own expense? (caution

advised!)

(3) Unlawful Eviction

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The eviction of a residential occupier is a criminal offence under s.1(4) of the Protection from Eviction Act 1977.

What is an unlawful eviction?

S.27 HA 1988: Damages for unlawful eviction (1) This section applies if, at any time after 9th June 1988, a landlord (in this section referred to as "the landlord in default") or any person acting on behalf of the landlord in default unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises. (2) This section also applies if, at any time after 9th June 1988, a landlord (in this section referred to as "the landlord in default") or any person acting on behalf of the landlord in default— (a) attempts unlawfully to deprive the residential occupier of any premises of his

• ccupation of the whole or part of the premises, or

What is an unlawful eviction?

S.27 HA 1988: Damages for unlawful eviction cont.

(b) knowing or having reasonable cause to believe that the conduct is likely to cause the residential occupier of any premises— (I) to give up his occupation of the premises or any part thereof, or (ii) to refrain from exercising any right or pursuing any remedy in respect of the premises or any part thereof, does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, and, as a result, the residential occupier gives up his occupation of the premises as a residence.

20/03/2018 12 What acts amounts to an unlawful eviction under s.27 of the HA 1988?

• The threat or use of force
• Changing the locks at the front of the property
• Locking parts of the property thereby denying

access

• Denying a tenant the right of re-entry to the

property

Remedies for unlawful eviction

The measure of damages under s.28 of the HA 1988 is the difference between:

• market value of the Proposed Defendant’s freehold

interest; and

• the market value of the Proposed Defendant’s

freehold interest subject to an assured short hold tenancy. An expert surveyor may be required to ascertain the correct figure.