Claim from deposit for breach possible?

Gavin83

itwasntme001 said:

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?

I love the way you've ignored every post except for the one that agrees with you and also ignored some very relevant questions.

Why are they moving? Who served notice?

I agree with everyone else and disagree with saajan_12 for the record. Just because something is in a contract it doesn't make it enforceable. Whether this particular term is enforceable is up for debate. I expect their right to quiet enjoyment would trump your right to conduct viewings. Besides, even if it was enforceable if they haven't served notice it's impossible to know when the last month of the tenancy is. They don't have to leave at the end of the section 21 notice period.

Even if you could determine the last month of tenancy and it was enforceable I expect the best you could manage is an issuing of a section 8, which given the circumstances seems a little pointless. Your chances of getting compensation for this is practically zero.

Ultimately the void period is not your tenants problem. If you really wish to conduct viewings while they're still there it might work out better to offer them a financial incentive, although make sure this includes actually moving out on time too.

Ksw3

If this is their last month, would you want people viewing with boxes everywhere? What if the condition of the property is such that immediate residence isn't possible? 

At the same rental market here is so terrible you could probably let it based on pictures alone. 

pinkshoes

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. 

Why is it poor advice? 

The tenant is legally entitled to quiet enjoyment. 

There is indeed a clause about allowing reasonable access, but this would be for emergency repairs, gas check etc... and certainly not for viewings!

@i@itwasntme001 - if your partner is desperate for viewings, then why not offer the tenants a cash incentive for the inconvenience? £20 per viewing paid once they move out?

How do you know they are definitely moving out?

itwasntme001

pinkshoes said:

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. 

Why is it poor advice? 

The tenant is legally entitled to quiet enjoyment. 

There is indeed a clause about allowing reasonable access, but this would be for emergency repairs, gas check etc... and certainly not for viewings!

@i@itwasntme001 - if your partner is desperate for viewings, then why not offer the tenants a cash incentive for the inconvenience? £20 per viewing paid once they move out?

How do you know they are definitely moving out?

Actually the AST contract does have a clause for access for viewings.

Care to change your view now?

PRAISETHESUN

You haven't actually confirmed that the tenants have given notice to leave the property. It is their legal right to proceed onto a statutory periodic tenancy if they stay beyond the fixed term and they may want to do that, so viewings may not actually be required.

Regardless, even if they intend to leave and there are viewing clauses in the AST, if the tenant doesn't agree to any viewings then there isn't really much you can do. The right to quiet enjoyment stands and you can enter the property in emergencies only - you can't force your way into the property to conduct a viewing without permission. As mentioned above, you could issue s8 for breach of contract, but if they are intending to leave then it's pretty pointless to do so.

As for trying to reclaim "losses" from the deposit, good luck with that. Losses need to be quantifiable, and I doubt any such claims would stand if it went that far.

itwasntme001

PRAISETHESUN said:

You haven't actually confirmed that the tenants have given notice to leave the property. It is their legal right to proceed onto a statutory periodic tenancy if they stay beyond the fixed term and they may want to do that, so viewings may not actually be required.

Regardless, even if they intend to leave and there are viewing clauses in the AST, if the tenant doesn't agree to any viewings then there isn't really much you can do. The right to quiet enjoyment stands and you can enter the property in emergencies only - you can't force your way into the property to conduct a viewing without permission. As mentioned above, you could issue s8 for breach of contract, but if they are intending to leave then it's pretty pointless to do so.

As for trying to reclaim "losses" from the deposit, good luck with that. Losses need to be quantifiable, and I doubt any such claims would stand if it went that far.

Actually the tenants did serve notice to leave by end of fixed term.

PRAISETHESUN

Thanks for confirming that. Even then my point still stands. There isn't really much you can do to force viewings if the tenant refuses them, and I don't think you'll have any chance of getting anything from the deposit in respect of this

BobT36

itwasntme001 said:

pinkshoes said:

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. 

Why is it poor advice? 

The tenant is legally entitled to quiet enjoyment. 

There is indeed a clause about allowing reasonable access, but this would be for emergency repairs, gas check etc... and certainly not for viewings!

@i@itwasntme001 - if your partner is desperate for viewings, then why not offer the tenants a cash incentive for the inconvenience? £20 per viewing paid once they move out?

How do you know they are definitely moving out?

Actually the AST contract does have a clause for access for viewings.

Care to change your view now?

Once again, one cannot sign away their statutory rights. The law trumps the contract, wherever it conflicts. 

And again, if it was me I would argue that such a bland "must allow viewings" term would be an "unfair term" in the contract, as it benefits only one party to the detriment of another. Check the consumer contract regulations, there must not be an imbalance as otherwise the term can be challenged as "unfair". Tenants are deemed "consumers" and landlords "suppliers". 

Not a lawyer, but those were the points I would challenge, if enforced. It's your tenant's home until they leave, why would they want rando's tromping around while they're trying to pack, for no benefit to themselves? 

Now if they're wanting to negotiate an early surrender, OR some sort of benefit to the tenant (cash, whatever) was clearly baked into the contract, that might be different. 


As someone else mentioned, "reasonable access" would be for maintenance and other NECESSARY work, that naturally benefits the tenant or for legal compliance. The landlord's "void period" is a business overhead issue and therefore none of the tenant's concern. I can't see anything to do with that being "reasonable" for the tenant. What the landlord may deem "reasonable", the tenant may not.


And again, how could the landlord possibly specify exactly how much they'd lost out in that situation? No one could say "if this person was able to view, a tenancy would absolutely have been created, and the delay prevented that from happening, therefore I have lost £x.xx". 

maladict

BobT36 said:

itwasntme001 said:

pinkshoes said:

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. 

Why is it poor advice? 

The tenant is legally entitled to quiet enjoyment. 

There is indeed a clause about allowing reasonable access, but this would be for emergency repairs, gas check etc... and certainly not for viewings!

@i@itwasntme001 - if your partner is desperate for viewings, then why not offer the tenants a cash incentive for the inconvenience? £20 per viewing paid once they move out?

How do you know they are definitely moving out?

Actually the AST contract does have a clause for access for viewings.

Care to change your view now?

Once again, one cannot sign away their statutory rights. The law trumps the contract, wherever it conflicts. 

And again, if it was me I would argue that such a bland "must allow viewings" term would be an "unfair term" in the contract, as it benefits only one party to the detriment of another. Check the consumer contract regulations, there must not be an imbalance as otherwise the term can be challenged as "unfair". Tenants are deemed "consumers" and landlords "suppliers". 

But surely what the tenants got in return for that clause was the right to live in the property for x months/years?  The contract and its conditions surely cover the entire period in which the landlord supplied the product to the consumer, not just to a fragment of that time.  

I'm neither a renter nor a landlord, fwiw.

_Penny_Dreadful

BobT36 said:

itwasntme001 said:

pinkshoes said:

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. 

Why is it poor advice? 

The tenant is legally entitled to quiet enjoyment. 

There is indeed a clause about allowing reasonable access, but this would be for emergency repairs, gas check etc... and certainly not for viewings!

@i@itwasntme001 - if your partner is desperate for viewings, then why not offer the tenants a cash incentive for the inconvenience? £20 per viewing paid once they move out?

How do you know they are definitely moving out?

Actually the AST contract does have a clause for access for viewings.

Care to change your view now?

Once again, one cannot sign away their statutory rights. The law trumps the contract, wherever it conflicts. 

And again, if it was me I would argue that such a bland "must allow viewings" term would be an "unfair term" in the contract, as it benefits only one party to the detriment of another. Check the consumer contract regulations, there must not be an imbalance as otherwise the term can be challenged as "unfair". Tenants are deemed "consumers" and landlords "suppliers". 

Not a lawyer, but those were the points I would challenge, if enforced. It's your tenant's home until they leave, why would they want rando's tromping around while they're trying to pack, for no benefit to themselves? 

Now if they're wanting to negotiate an early surrender, OR some sort of benefit to the tenant (cash, whatever) was clearly baked into the contract, that might be different. 


As someone else mentioned, "reasonable access" would be for maintenance and other NECESSARY work, that naturally benefits the tenant or for legal compliance. The landlord's "void period" is a business overhead issue and therefore none of the tenant's concern. I can't see anything to do with that being "reasonable" for the tenant. What the landlord may deem "reasonable", the tenant may not.


And again, how could the landlord possibly specify exactly how much they'd lost out in that situation? No one could say "if this person was able to view, a tenancy would absolutely have been created, and the delay prevented that from happening, therefore I have lost £x.xx". 

This is the second time you have said in this thread that tenants cannot sign away their statutory rights.  The right to quiet enjoyment is not an absolute right.  It is not an unfair term for a tenancy agreement to state that the tenant must allow viewings towards their end of the tenancy and by signing the tenancy agreement the tenant has given permission for the landlord to conduct viewings, provided the requisite 24 hours written notice is provided and the viewings are at reasonable times e.g. no viewings at 2am on a Tuesday or viewings every single day for 3 weeks.  By refusing all viewings the tenant is in breach of contract but what can a landlord realistically do about it?  Sweet Fanny Adams.

When a tenant refuses access to a property, be it for viewings or a gas safety inspection or repairs, an unwise landlord would give written notice and turn up to let themselves in when the tenant has made it crystal clear they do not want the landlord or someone representing the landlord entering their home.  Instead the landlord would need to go to court to gain access but in most cases in England a landlord would just issue a Section 21 rather than continue dealing with such a PITA or at the end of the tenancy grin and bear it.  Like Mr.Generous I never market one of my rentals until the tenants have left and I've had a chance to spruce the place up for viewings so this has never been a problem for me.