What to do if landlord has breached contract over garage access

pelican27

So I recently moved into a rented flat in England with my partner on a 1 year AST with no break clause. We specifically looked for properties with garages as we need the storage and I wanted a space to exercise without having to go to a gym because of the pandemic. I'm also disabled and may (not definitely) need to switch to a powerchair in the next couple of years, and I wouldn't be able to get a powerchair into the flat itself, so it would have to go into the garage. Without a garage there's nowhere to put it.  

The ad for the property didn't show a picture of the garage. It also didn't mention the garage in the text about the property. But it did show the garage on the floor plan. When I viewed the property I asked the agent about the garage, and he said that he didn't have the key to show me, but we would 'definitely have one of these garages' (there's a row of them at the back of my building). 

When we received the contract, we reviewed it for garage access and the only mention of it is under the 'definitions' where it says 'References to the premises include reference to any part or parts of the Premises and the curtilage of the same together with the garden, garage and parking space (if applicable); any exclusions will be detailed within the Agreement'. I assume 'if applicable' means 'if it exists', rather than 'if the landlord wants you to have access to it'. I have scoured the agreement and there are no exclusions. 

Moving day came around and we didn't get given a garage key. We asked the landlady's husband for the key when he popped round and he said that we wouldn't have access because he's using it for storage because he was spending too much money on his storage unit. I emailed the landlady to ask for the key and she said 'I am so sorry the letting agent has led you to believe the garage was included. The garage has never been included for any tenant', and said she would be onto the agency for an explanation. I've asked for an update and she hasn't replied.

As far as I'm concerned this all means the garage is included under the definition of the premises in our contract, therefore the garage is ours for the duration of the tenancy, and that the lack of access is a breach of contract. While the landlady is saying that it's the agency's fault for letting us believe we had access to a garage, she would have signed off the ad, and she has signed a contract without fully assuring herself of what she's agreeing to. The cost of renting a garage in the local area is about £100 a month.

The fact that the agency thought the garage was included, plus its presence in the contract and on the floor plan, and what the landlady's husband said about the storage unit, suggests to me they're telling porkies about the garage never having been included for the past 4 tenants. But that's speculation obviously and I wouldn't accuse them of that in any way.

I'm not sure what to do if she doubles down and continues to refuse us access.  
- Are we correct in thinking that that definition of the premises should give us access to the garage?
- Is it reasonable of us to conclude that garage on floor plan + verbal commitment to garage access from agent + such mention of garage in tenancy agreement means we would have the garage? 
- Is the right solution to write her a letter detailing the problem and why we believe it is a breach, and propose a solution (which for us would be either garage access or a change to the agreement detailing the exclusion and a reduction in rent to the tune of the value of the garage? (Could this backfire? How big of a reduction would be reasonable?). 
- I'm not keen on the idea of suing her for the garage, but if we did, would we have to do it now rather than later when we're less bothered about being kicked out?
- If she feels unable to honour the terms of the agreement (i.e. give us the garage), could she unwind the contract and evict us? We really like the property and want to stay in the longer term (2-3 years), and I'm not sure if it's a deal breaker but I also don't want to just let it go because I think it's a bit of a p*sstake. 
- Should we complain to the letting agency for false advertising? Would they have a responsibility to compensate us?  

As a final nail in the coffin, we didn't get sent a deposit protection certificate, and I've checked all 3 schemes using their online tool and it doesn't appear to be in any of them. I've emailed them all to double check with the full details etc, but we paid our deposit on the 4th July to the agency (not sure when she'd then have received it), so we should have had the certificate by the 4th August. 

Thanks all and sorry in advance for the long post. Feeling at a bit of a loss as I don't want to get into a dispute with my new landlady out of fear of retaliation, but I feel really put out that despite having gone to great lengths to get ourselves a garage we've been conned out of it!

Comms69

Ultimately up to a court to decide, but the short of it is you wont have access to the garage.

You arent going to be kicked out, because that's not how evictions work. 

SpiderLegs

Is the garage listed as an exclusion on the agreement? If not then it would suggest to me that you should be getting access. 

However, as above you are not realistically going to get access, but you may be able to negotiate a rent reduction.

The longer you stay there without dealing with this issue then the less of an issue it clearly is, so if you are that bothered I suggest you try to agree a termination and find somewhere else to live. 

pelican27

SpiderLegs said:

Is the garage listed as an exclusion on the agreement? If not then it would suggest to me that you should be getting access. 

However, as above you are not realistically going to get access, but you may be able to negotiate a rent reduction.

The longer you stay there without dealing with this issue then the less of an issue it clearly is, so if you are that bothered I suggest you try to agree a termination and find somewhere else to live. 

It's not listed as an exclusion no. I'm inclined to think you are right that they're not going to concede the garage to us easily. I did want to check if we were contractually supposed to have access, as I don't want to point out a clause in a contract to the landlady claiming it means something that it doesn't. 

AdrianC

pelican27 said:

The ad for the property didn't show a picture of the garage. It also didn't mention the garage in the text about the property. But it did show the garage on the floor plan. When I viewed the property I asked the agent about the garage, and he said that he didn't have the key to show me, but we would 'definitely have one of these garages' (there's a row of them at the back of my building). 

When we received the contract, we reviewed it for garage access and the only mention of it is under the 'definitions' where it says 'References to the premises include reference to any part or parts of the Premises and the curtilage of the same together with the garden, garage and parking space (if applicable); any exclusions will be detailed within the Agreement'. I assume 'if applicable' means 'if it exists', rather than 'if the landlord wants you to have access to it'. I have scoured the agreement and there are no exclusions.

"...if applicable" means "...if your tenancy includes a garage (and/or garden and/or parking space)". No more than that. It's just a boilerplate definition of what the words "the premises" include in the tenancy contract, and is not any kind of list of what the tenancy itself includes.

So you have a tenancy taken from an ad that didn't mention the garage, except in a floorplan diagram. You have a verbal confirmation from the agent, but no more than that. You didn't ask the landlord, and you have nothing in writing from the agent. There is nothing in the tenancy that says there is a garage.

Moving day came around and we didn't get given a garage key. We asked the landlady's husband for the key when he popped round and he said that we wouldn't have access because he's using it for storage because he was spending too much money on his storage unit.

The reasons are totally irrelevant.

I emailed the landlady to ask for the key and she said 'I am so sorry the letting agent has led you to believe the garage was included. The garage has never been included for any tenant', and said she would be onto the agency for an explanation. I've asked for an update and she hasn't replied.

There is nothing to update. You have been told there is no garage by the other party to the contract.

It's irrelevant to you why the agency misled you, but I'm sure they're very sorry for the non-contractual verbal statement being incorrect.

As far as I'm concerned this all means the garage is included under the definition of the premises in our contract, therefore the garage is ours for the duration of the tenancy, and that the lack of access is a breach of contract.

I'd say it was the exact opposite.

While the landlady is saying that it's the agency's fault for letting us believe we had access to a garage, she would have signed off the ad

Which didn't say there was a garage.

and she has signed a contract

Which doesn't say there is a garage.

without fully assuring herself of what she's agreeing to.

Weeeeelll.... That one kinda goes both ways.

The fact that the agency thought the garage was included, plus its presence in the contract and on the floor plan, and what the landlady's husband said about the storage unit, suggests to me they're telling porkies about the garage never having been included for the past 4 tenants.

What happened with the previous four tenants is completely and utterly irrelevant to your tenancy.

- Are we correct in thinking that that definition of the premises should give us access to the garage?

No.

- Is it reasonable of us to conclude that garage on floor plan + verbal commitment to garage access from agent + such mention of garage in tenancy agreement means we would have the garage?

No.

- Is the right solution to write her a letter detailing the problem and why we believe it is a breach, and propose a solution (which for us would be either garage access or a change to the agreement detailing the exclusion and a reduction in rent to the tune of the value of the garage? (Could this backfire? How big of a reduction would be reasonable?).

"I'm very sorry for the misunderstanding on the agent's part, and I'm happy to release you from the tenancy early should that be your preferred option".

- I'm not keen on the idea of suing her for the garage, but if we did, would we have to do it now rather than later when we're less bothered about being kicked out?

You realistically sue for specific performance of the contract for something that isn't in it.

Realistically, your only option is for a small claim for the value of rental of a garage elsewhere for the duration of the original contract, no longer. Because if it's a big deal, you don't want to stay there past the end of the contract, right? And, if you do, then it isn't.

A more reasonable figure would be the difference in rent between a property like that which definitely doesn't include a garage, and one which does... Care to put a figure on that, and give us a clue as to where in between those your current rent lies?

TBH, I don't fancy your chances, and even trying will seriously dent your relationship with your landlord.

- If she feels unable to honour the terms of the agreement (i.e. give us the garage), could she unwind the contract and evict us?

At the end of the 12mo, yes, she can give you notice. Now? No. But she can offer you the option to leave early. B'sides, it is NOT "the terms of the agreement". It is merely your (mis-)understanding. The contract does NOT say there is a garage, any more than it says there is a garden or there is a parking space. It just says that, if there was one, it'd be included in the definition of the term "the premises".

We really like the property and want to stay in the longer term (2-3 years), and I'm not sure if it's a deal breaker

You need to decide on that. Sharpish.

but I also don't want to just let it go because I think it's a bit of a p*sstake.

No, it's just a simple error made on the part of an employee of the agents who may not have been familiar with the property.

- Should we complain to the letting agency for false advertising? Would they have a responsibility to compensate us?

No. You have no contract with the agency. They are simply acting as your landlord's agent. Your contract is with the landlord. The landlord has a contract with the agency.

As a final nail in the coffin, we didn't get sent a deposit protection certificate, and I've checked all 3 schemes using their online tool and it doesn't appear to be in any of them. I've emailed them all to double check with the full details etc, but we paid our deposit on the 4th July to the agency (not sure when she'd then have received it), so we should have had the certificate by the 4th August.

Yes, you should. No need to "email them" - you can check online on each of the scheme's websites. Takes minutes.
But they are in breach if they haven't provided the prescribed information in time.

The real key question here is how far do you want to push them, if you're hoping for this to be a long-term relationship?

SpiderLegs

AdrianC said:

"...if applicable" means "...if your tenancy includes a garage (and/or garden and/or parking space)". No more than that. It's just a boilerplate definition of what the words "the premises" include in the tenancy contract, and is not any kind of list of what the tenancy itself includes.

So you have a tenancy taken from an ad that didn't mention the garage, except in a floorplan diagram. You have a verbal confirmation from the agent, but no more than that. You didn't ask the landlord, and you have nothing in writing from the agent. There is nothing in the tenancy that says there is a garage.

The part you refer to is in relation to the premises.
the premises has a garage.
therefore if the OP has a tenancy for ‘the premises’, which I presume they do, then the garage is included, unless it is specifically excluded.

in fact it would be ridiculous for the agreement to define what is meant by ‘the premises’ and then grant a tenancy on something else.

DoaM

'References to the premises include reference to any part or parts of the Premises and the curtilage of the same together with the garden, garage and parking space (if applicable); any exclusions will be detailed within the Agreement'. 

I'm going to disagree somewhat with Adrian's post above ... the quote from the contract where it says (if applicable) can be read in varying ways. Does the applicability refer to all 3 items or only the last one? Perhaps the doctrine of Contra Proferentem applies here?

pelican27

So you have a tenancy taken from an ad that didn't mention the garage, except in a floorplan diagram. You have a verbal confirmation from the agent, but no more than that. You didn't ask the landlord, and you have nothing in writing from the agent. There is nothing in the tenancy that says there is a garage.

We weren't given contact details for the landlord until the day we moved in. I did ask if the garage was included, it just happened to be a verbal agreement from the agency, acting on behalf of the landlord, that the garage was included. I think it's fair to conclude that asking if the garage is included and being told 'yes' constitutes a confirmation that the garage was included. The tenancy agreement DOES say there is a garage, under definitions. The floor plan on an ad isn't completely irrelevant. 

The contract does NOT say there is a garage, any more than it says there is a garden or there is a parking space. It just says that, if there was one, it'd be included in the definition of the term "the premises" 

There is a garden and a parking space.

pelican27

DoaM said:

'References to the premises include reference to any part or parts of the Premises and the curtilage of the same together with the garden, garage and parking space (if applicable); any exclusions will be detailed within the Agreement'. 

I'm going to disagree somewhat with Adrian's post above ... the quote from the contract where it says (if applicable) can be read in varying ways. Does the applicability refer to all 3 items or only the last one? Perhaps the doctrine of Contra Proferentem applies here?

yeah I think this is my main question and everything we do next basically hinges on whether that definition and the phrase 'if applicable' is referring to the mere existence of a garage, or the existence of a garage IF the landlord explicitly wants it to be included, or whether 'if applicable' is only referring to a parking space. The fact that exclusions are supposed to be detailed, that's what makes me think if it exists but is excluded that needed to be stated as such. It is a bit vague. If I'm being a twit and that clause is irrelevant, then obviously the letting agency has cocked up but there's nothing to be done.

trex227

SpiderLegs said:

AdrianC said:

"...if applicable" means "...if your tenancy includes a garage (and/or garden and/or parking space)". No more than that. It's just a boilerplate definition of what the words "the premises" include in the tenancy contract, and is not any kind of list of what the tenancy itself includes.

So you have a tenancy taken from an ad that didn't mention the garage, except in a floorplan diagram. You have a verbal confirmation from the agent, but no more than that. You didn't ask the landlord, and you have nothing in writing from the agent. There is nothing in the tenancy that says there is a garage.

The part you refer to is in relation to the premises.
the premises has a garage.
therefore if the OP has a tenancy for ‘the premises’, which I presume they do, then the garage is included, unless it is specifically excluded.

in fact it would be ridiculous for the agreement to define what is meant by ‘the premises’ and then grant a tenancy on something else.

I feel as the property is a flat and the garage is not attached to/ on the land directly next to the property in the way it would be if the property were a house I’m not sure the argument of it being part of the premises would have the same weight.

It might not even be on the same title as the flat itself.

AdrianC

SpiderLegs said:

The part you refer to is in relation to the premises.
the premises has a garage.

Does it...?

So far all we have is a series of assumptions based on minor errors by the agent.
The advert did not say there was a garage. The floorplan showed one, but the text did not mention one.
The prospective tenant said "So about this garage..." - to which the junior shiny-suit doing the viewing stopped picking his nose or playing on his phone, looked surprised, looked out of the window at a block of garages, and said "Umm, one of those?"

therefore if the OP has a tenancy for ‘the premises’, which I presume they do, then the garage is included

The tenancy contract doesn't say there is a garage. It just says "Any mention of the premises means the whole lot, including any garage/garden/parking space there may be".

IS there a garden and parking space?

...unless it is specifically excluded.

Which it has been, initially by the landlord's husband, then by the landlord herself. The advert did not state it was included.