Claim from deposit for breach possible?

itwasntme001

Hello,

My partner is a landlord and her tenants (who are due to leave by end of fixed term) are refusing any viewings whatsoever.  They claim that it is an invasion in privacy and they have a right for quiet enjoyment.  The AST has a viewing clause to allow viewings a month before the end of tenancy.

Can my partner claim from the deposit successfully for resultant loss due to the void period given no tenants can be found due to the breach in contract?

daivid

Do they even plan to leave? Refusing viewings could be the tip of the iceberg…

Schwarzwald

according to my understanding the clause to allow viewings is not worth much as unenforceable, the tenant's right for quiet enjoyment weighs stronger than this clause and there is ultimately no obligation to allow access for it and therefore also no chance for you to claim under the deposit.

subjecttocontract

Would you want people trampling through your house, disturbing your life for the benefit of someone else ? Before you suggest that it is your house........it's not, it's the tenants whilst they are renting from you. Perhaps If you were to offer a financial incentive in exchange for a day of viewings, everyone could gain from the exercise. 

lookstraightahead

Why are they leaving? How about you paying them from the rent for ruining their quiet enjoyment? 

theartfullodger

Why does partner think they are leaving at end of fixed term?? Thatcher's 1988 Housing Act makes clear they don;t have to....

The AST clause is unenforceable - can't see any judge or deposit scheme agreeing to any payment to landlord.

Dwelling is tenant's property not landlords during any tenancy (even if not paying rent). 'Tis but landlord's investment when tenants still in residence.

I (as landlord since 200) never market or have viewings until tenants have ACTUALLY left and any damage/redecorations fixed.  

Any reason partner can't post on their own please?

Best regards

doodling

Hi,

What evidence do you have now that it is the last month of the tenancy?

They don't have to leave at the end of the fixed term, nor do they need to give notice to leave at the end of the fixed term.

Once you've resolved that uncertainty then you can move onto the further uncertainty as to the weighting between quiet enjoyment and contractual provisions.

Finally you need to demonstrate your losses.  What loss can you prove you have suffered?  Note that hand wavy arguments about probably having a bigger void period than if there had been viewings introduce further uncertainty in any claim.

If you manage to get through all the above uncertainty then you also need to remember that legal action is always uncertain, no matter now good a case you believe you have.

You can try claiming through the deposit scheme but unless you are able to resolve a lot of the uncertainty for them then I think they'll want to avoid getting involved.

BobT36

Schwarzwald said:

according to my understanding the clause to allow viewings is not worth much as unenforceable, the tenant's right for quiet enjoyment weighs stronger than this clause and there is ultimately no obligation to allow access for it and therefore also no chance for you to claim under the deposit.

This. You cannot sign away your statuary rights. Right to Quiet Enjoyment is one of those. 
The law always overrides the contract, where it conflicts.

Also contract terms that only benefit ONE side, are deemed unfair terms. Exactly what is the landlord giving the tenant in return for abiding by this term, that only benefits the landlord? 

The person is a landlord, and a business, any "void period" is not the tenant's problem. It is their home until the end of the tenancy, they have an explicit right, in law, to quietly enjoy that. 

Also good luck on claiming, I don't think they'd be able to accurately account for exactly how much they've "lost". 

Mr.Generous

theartfullodger said:

I (as landlord since 200) never market or have viewings until tenants have ACTUALLY left and any damage/redecorations fixed.  

Any reason partner can't post on their own please?

Best regards

I as a landlord since 2010 also NEVER market a property or have viewings until tenants have gone and the house is presented to as high a standard as I can achieve - to a budget.

In the current market if you spruce the place up you can probably charge an extra £100 in rent. A nicely done properety gets - and keeps - better tenants. Trying to get it re-let the day the old tenant moves out to save £100 or less says a lot. Do it right. Let them leave. Clean and decorate. Market. Re-let. Everybody happy. 

saajan_12

Some very poor advice here.. BUT that still doesn't mean the LL will be successful. 

A clause allowing reasonable access to the property (ie with good notice, reasonable frequency etc) can absolutely be valid without breaching quiet enjoyment. If the tenants refuse reasonable access notifications agreed to in the AST they they are breaching it. However your problem will be one of proving the damages. If you were unable to show the property on for x time, the judge may / may not agree that one of those viewings would have resulted in a rental. 

itwasntme001

saajan_12 said:

Some very poor advice here.. BUT that still doesn't mean the LL will be successful. 

A clause allowing reasonable access to the property (ie with good notice, reasonable frequency etc) can absolutely be valid without breaching quiet enjoyment. If the tenants refuse reasonable access notifications agreed to in the AST they they are breaching it. However your problem will be one of proving the damages. If you were unable to show the property on for x time, the judge may / may not agree that one of those viewings would have resulted in a rental. 

Yes I think this makes sense, so there does seem to be a breach.  But at what point does it become a breach in terms of number of days for viewings?  If the tenants allow one day only, and say they are busy for all other days and landlord needs to respect "quiet enjoyment", does this make it a breach?

I guess all this is irrelevant if you can't even prove actual loss which I am guessing is what the judge will be looking for?  How can my partner prove that tenants who wanted to view the property but couldn't, would have certainly taken up the tenancy?  Do you need certainty for a claim to be successful?