Withholding rent for costs/compensation

gerardflanagan

For four months over the winter our boiler was broken. The landlord sent out replacement radiators but they were insufficient, took up a huge amount of space (in a cramped flat) and regularly tripped the fuse.

The landlord regularly ignored our emails and when he did respond he said it would be repaired imminently, which it wasn't. We were unable to commit the repair ourself because part of the issue related to another area of the building that we did not own (and the landlord did). There is a huge array of incompetence on the landlord's part, all of which is documented via email. We have remained professional, punctual and amicable throughout (despite contrasting conversations between ourselves!). We have always paid our rent on time and never caused any damage/hassle.

The landlord has agreed that we are owed compensation so we are preparing our claim. My concern is how to go about getting it. I assume that he will refuse our offer and want to know how to approach it based on this assumption. I guess theoretically we could pay all of our remaining rent and then take him to court. However, I would rather withhold what we feel we are owed in rent and tell him that if he disagrees then we are happy to go to court. I would be happy for a judge to see my case and claim amount. I think if the onus is on the landlord to take us to court he won't because he will be too ashamed of his maladministration (we have over 150 emails detailing ignored emails, lies, missed commitments, refusal to come to our flat etc.). On the other hand, because he works on behalf of the large company that owns our flat, I feel that if the onus is on us to go to take him to court, it will go, purely because he is so poor at responding to/doing anything, that is what will happen. Obviously I want to avoid the stress/time of going to court ideally.

What will happen if he takes us to court (presuably for 'rent arrears', as he will call our withholding rent) and we 'counterclaim' by saying that is what we feel we are owed? Will the judge then make his decision on if our compensation is correct and leave it at that? Thanks.

Incidentally, I have found a case that seems to allow tenants to set off damages against arrears.
http://www.rla.org.uk/landlord/magazine/rpi/rpi_03as_wins.shtml

G_M

Shelter provides advice too.

Rent and repairs are separate issues. Witholding rent is a mistake.

gerardflanagan

Thanks for the replies. The boiler is now fixed and it is the compensation that we would want to withhold through the rent.

We will try to negotiate a figure with him but for the amount we feel we are owed, we would need to withhold rent from next week to get it back. Once we've paid him that rent we will need to chase him through the courts for any extra. That's why we feel a bit rushed.

I tried ringing Shelter but their phone line is for emergencies (homelessness etc.) so I didn't want to take their time. I can speak to my local housing authority or citizens advice but I need to go in in working hours for both of them which is very hard for me to do in this time scale.

G_M you say that rent and repairs are seperate issues but the Court of Appeal explicitly said in the link I provided that rent is regarded as consideration not merely for possession but for undertaking obligations to the tenant. Therefore, they said, the tenant was entitled to set damages against arrears.

I'm just afraid that in paying him our full rent it will take us even more time, money and stress to pursue him through the courts.

BitterAndTwisted

Your landlord provided an alternative source of heat and therefore fulfilled their legal obligation to you. They have absolutely no responsibility to reimburse you for the additional costs you incurred, so you must try and negotiate as best you can. I would not advise you to withhold the rent due and would not hold out any hope whatsoever that you will be able to winkle much out of them by way of "compensation". You need to put forward a convincing argument and provide proof about how much additional electricity you think it cost you and start from there.

taxsaver

Maybe you could post here the amount on compensation that you think is fairly due to you and how you have arrived at it. We can then give you impartial views as to whether or not it appears reasonable.

This could be enormously helpful to you as if you go in asking for a figure that most would think unreasonable then you'll have a hard job agreeing anything after that as the LL will already feel antagonistic toward you.

may_fair

gerardflanagan wrote: »

The landlord has agreed that we are owed compensation so we are preparing our claim....However, I would rather withhold what we feel we are owed in rent and tell him that if he disagrees then we are happy to go to court.

Ideally, you should avoid legal action, agree a figure with the LL, and get it in writing. There may be a significant difference between what you 'feel' you are owed, and what a court would regard as reasonable damages for the disrepair.

What will happen if he takes us to court (presuably for 'rent arrears', as he will call our withholding rent) and we 'counterclaim' by saying that is what we feel we are owed? Will the judge then make his decision on if our compensation is correct and leave it at that?

Disrepair damages may succeed as a defence and counterclaim to a claim for unpaid rent. However, you will need to present evidence to support your claim, including how you arrived at the figure for damages; saying it's what you 'feel' you are owed is unlikely to impress the court.

And remember the LL will present a defence to your counterclaim, e.g. he provided alternative heating, etc. It's not a straightforward area of law and you may easily be tripped up if LL has counsel and you do not.

If you are awarded damages, and the damages are equivalent to the value of the unpaid rent, then the two will cancel each other out - but one or both parties will be ordered to pay the court fees and possibly some costs.

One very important thing to bear in mind is that, if your counterclaim for damages is in excess of £1,000 it may not be allocated to the small claims track (because that's the limit for disrepair claims by T against LL in the small claims track)*. And in the other tracks court fees are considerably higher; you'd also be exposed to the LL's legal costs.

*See the Civil Procedure Rules - Part 27.

G_M

gerardflanagan wrote: »

Thanks for the replies. The boiler is now fixed and it is the compensation that we would want to withhold through the rent.

We will try to negotiate a figure with him but for the amount we feel we are owed, we would need to withhold rent from next week to get it back. Once we've paid him that rent we will need to chase him through the courts for any extra. That's why we feel a bit rushed.

G_M you say that rent and repairs are seperate issues but the Court of Appeal explicitly said in the link I provided that rent is regarded as consideration not merely for possession but for undertaking obligations to the tenant. Therefore, they said, the tenant was entitled to set damages against arrears.

I'm just afraid that in paying him our full rent it will take us even more time, money and stress to pursue him through the courts.

Thanks for the reference. My comments would be:
1) avoid court if at all possible. You say "The landlord has agreed that we are owed compensation" so do your best to negotiate an amount without recourse to the courts which will be slow, expensive and troublesome.
2) Shelter may help, but I suspect you need more specialist legal advice. See a property solicitor if you go down the court route.
3) There are several different factors between your situation and Smith V Muscat. Smith V Muscat involved a repair issue (damp) lasting 2 years (95 - 97) from the point the local authority served a disrepair order on the LL. The damp had already been a problem for 'many years' before that. Your own case involves a period of 4 months, and so far as you have said, no LA disrepair order was made. Additionally, in Smith V Muscat, no remedial action was taken. In your case, remedial action was taken (albeit incompetantly), and interim alleviating measures were taken (replacement rads).
4) Whilst compensation may be due, the amount needs careful consideration, especially if you plan to take the route of witholding that amount from rent. You risk witholding an amount which you feel is fair, only for a court to subsequently rule a much smaller amount, and therefore place you in rent arrears. If the LL's action in court is for possession, you may win an amount in compensation, but still be ruled in arrears and lose the possession claim.
5) Costs could well be an issue.
6) maintaining your rent payments, and taking out a Small Claims Court action for the compensation (thereby separating the rent and repairs issues) is a safer option - though the LL is unlikely to renew any fixed term contract when it expires.

As taxsaver suggests, why not run by the forum the compensation amount you have in mind?

gerardflanagan

Thanks for the replies guys, all well informed. I'll provide a bit more detail about the case here and tell you what we feel we are owed.

Just a bit of background. When the engineer first came out he said he couldn't fix the boiler until the vibration on the wall was stopped. This vibration was coming from a massive (air con?) unit on the outside of the wall that belonged to the restaurant below. This precluded us from being able to affect any repairs ourselves so we were at the whim of our landlord to fix it. I suspect that the reason it took so long to 'fix' is because they didn't want the restaurant to suffer (the same business owns our flat and the restaurant beneath us). Ultimately, four months later, some scaffolding went up, the vibrations didn't appear to be fixed, and a different engineer came out and declared it safe. The wall still vibrates, whether or not they reduced it I can't tell.

Compensation issues:
1 Electrical costs for radiators
Calculated as the difference between what gas heating would have cost for the period and what the electric radiators did cost.
2 Insufficient radiators
The radiators did not heat the flat properly. He wouldn't send the necessary amount out or come out to the flat himself (we've never even met him, despite inviting him to come out). We also couldn't have them in our bathrooms so the mornings were especially bad.. The radiators regularly tripped the fuse.
3 Space consumption
The radiators that he DID provide took up a huge amount of space in a cramped flat. We wouldn't mind if it had been a temporary measure, as he agreed, but it was four months!
4 Duration of boiler not working
4 months
5 Failure to comply with the Landlord and Tenants Act
Keep the heating working in a reasonable amount of time
6 Consistent failure to act reasonably in duties as a landlord
· Failure to honour commitments
Made approx 5 commitments for when it would be fixed that were not met.
· Failure to acknowledge when a commitment has not been met
Onus was on us to contact him when commitment wasn't met
· Failure to answer basic questions e.g. what work do you have booked and for when?
Asked this approx. 10 times, generally ignored and never answered completely and truthfully.
· Failure to reply to emails in a reasonable time or at all
Approx. 10 emails were ignored. Each time we would wait a week before pointing out he had ignored an email. Obviously this was very stressful and prolonged everything. In contrast, we always replied to his emails within a week (nearly always within a day, in fact).
· Lacking knowledge about the flat and failing to visit the flat to rectify this.
When attempting to calculate the radiator electricty usage, we needed to figure out how much of our electricity was being used by a telecomms unit the restaurant runs out of our flat. The landlord repeatedly denied it was running off our electricity and it took 4 weeks and 2 ignored emails before I cut the power to it (with the restaurant's permission) to prove it was running from our electricity. If he didn't know what the unit was, he should have come out to see. His office is 10 minutes away but he claims he 'manages 200 properties so can't possibly come out'.
· Failure to provide power adaptors, timers, electricity meter (for calculating restaurant's network unit's consumption)
The onus was always on us to purchase these things and charge them back. Not what we need when we are all working and his job is to help us with these things.
· Failure to take responsibility e.g. 'contractors/facilities manager are looking into this'
Constantly claimed he didn't know what was going on with the vibrations with quotes such as above. Left us feeling helpless, we couldn't fix it ourselves and he would just say someone is looking into it (for months!).

7 Engineers not honouring appointments
We had over 10 appointments which required us to make sure we were in when we might not have been. Sometimes the engineer then wouldn't turn up.
8 Strained relationship with restaurant below
The landlord would NEVER come out to the flat himself so we had to leave keys with the restaurant below when we couldn't possibly be in for an engineer. The restaurant got very !!!!ed off with us because random engineers were walking around their restaurant when they were trading asking for keys.

9 Time and stress
This been SO stressful and time consuming. I have over 150 emails in my account relating to the boiler. Coupled with the things above it has been utterly demoralising. Constantly having to chase the landlord, being lied to, having a partially heated flat and thinking the heating is 'about to be fixed' has been extremely time consuming and stressful. I told the landlord this while it was going on but it didn't change his attitude.

The compensation we feel is fair is half rent for the four months plus the cost of electrical radiators (compared to what we would have paid for gas).

BitterAndTwisted

I think you should concentrate on getting the landlord to accept some responsibility for the additional costs in heating the flat. I think you'd be on a hiding to nothing by insisting on compensation for your other points.

gerardflanagan

We pay a huge amount of rent every month. He has failed us massively in his duty as a landlord on several accounts, including legal obligations. It has had a significant impact on us. Surely it's not acceptable for him to just carry on doing that without recompense?

corbyboy

You stated in your first post that the landlord had agreed to pay compensation but you seem to be totally convinced he isn't going to pay it.

If you withold rent then you will be in arrears. If you don't catch up before you move out, your landlord will simply take it out of your deposit so it's a waste of time doing this.

You seem to be reluctant to give us a figure of how much compensation you want. Personally I would ask for something like the cost of the electricity plus £300. I wouldn't expect too much.