Claim from deposit for breach possible?

_Penny_Dreadful

itwasntme001 said:

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?

Voids are just part of being a landlord and to be expected and budgeted for accordingly.  Whilst the tenants are in breach of contract there is little your partner can realistically do about it.  Your partner will not be able to claim anything from the deposit even if the tenants are in breach of contract.

RHemmings

Relevant discussion here, which seems to match the majority opinion on this thread. 

https://www.propertyinvestmentproject.co.uk/blog/my-tenant-wont-allow-me-into-the-property-for-viewings/

[Deleted User]

As has already been suggested, just wait until the void before  marketing.

However, I do think some of the tone here is not to promote co operation or give and take in the tenant landlord relationship.

It works both ways. Should I be helpful to my tenant who wants an arrangement to leave early in a 12 month contract or simply restate my strict contractual entitlements? 

Of course, some legal entitlements are non- negotiable such as gas safety. But for someone to agree a certain approach when contracting such as to viewings, then to not be a person of their word, is a different matter. Will I then bend over backwards for that person when they need some variation to the arrangements?

Ironically, my tenant is willing to facilitate viewings, perhaps I will inform them that I fear that I would impede their quiet enjoyment...

Murphybear

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.

There is a saying which is very applicable to landlord/tenant issues.  “Statute overrides contract” or to put another way you can’t sign your rights away 

BobT36

maladict said:
But surely what the tenants got in return for that clause was the right to live in the property for x months/years?

If that was the case, landlords could put anything in their contracts. The law ALWAYS trumps the contract, where it conflicts. Terms can also be argued as "unfair". 

_Penny_Dreadful said:
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.

I get what you're saying, but that right to quiet enjoyment, is stronger than any terms around viewings etc. The former is law, the latter just a (possibly unfair) private contract term. A well written viewing clause would give SPECIFICS on x hours notice, when and how they'd be conducted etc. However it is still unenforceable in practice. The right to quiet enjoyment is sacrosanct. A landlord's wish to conduct viewings (NOT to the tenant's benefit) so they don't lose money cannot be treated as more necessary than the tenant's right to exclusive possession and quiet enjoyment. 

Sure it could be argued the landlord has given "reasonable" notice, but who defines "reasonable"? What if the tenant works nights, or has an an absolute phobia of randoms trudging through their home? Sure repairs and other such things can be deemed as NECESSARY and therefore override that (and benefit the tenant), but viewings aren't necessary, are they? Only for one party, the landlord. (again, unless tenant is wanting to surrender early, or overstaying or something).

If a tenant refuses all times proposed as the time doesn't work for them for xyz reason (maybe they work nights, newborn baby, too busy packing etc. Heck the tenant doesn't even HAVE to give a reason), what is the landlord gonna do? As you said, sweet fanny adams. The landlord cannot just force entry for this, if the tenant refuses. 
I'd imagine, and hope that they'd be completely unable to claim on the deposit for such, as there'd been no damage to the property. 


From researching online, there seems to be argument both ways, but the common consensus seems to be that right or wrong, such terms are unenforceable in practice. 

[Deleted User] said:

It works both ways. Should I be helpful to my tenant who wants an arrangement to leave early in a 12 month contract or simply restate my strict contractual entitlements? 

In this instance I absolutely agree. If the tenant is asking for something and will benefit (agreement for early surrender of the tenancy) then they should absolutely be reasonable and allow viewings, where they can practicably allow (and should make efforts to do so). As you said, it's give and take.

I think most of the arguments here are when there are NO benefit to the tenant. The landlord just simply wants to make more money. The tenant should still have exclusive possession and right to quiet enjoyment in the last month (or whatever) of their tenancy, just as they would in any other. The last couple of months are the absolute most stressful time, even! (Finding somewhere else to live, sorting all the address changes, packing, etc. etc.), I'd really NOT want to be disturbed during that time.

_Penny_Dreadful

_Penny_Dreadful said:
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.

BobT36 said:
I get what you're saying, but that right to quiet enjoyment, is stronger than any terms around viewings etc. The former is law, the latter just a (possibly unfair) private contract term. A well written viewing clause would give SPECIFICS on x hours notice, when and how they'd be conducted etc. However it is still unenforceable in practice. The right to quiet enjoyment is sacrosanct. A landlord's wish to conduct viewings (NOT to the tenant's benefit) so they don't lose money cannot be treated as more necessary than the tenant's right to exclusive possession and quiet enjoyment.

The right to quiet enjoyment is not an absolute right.  both things can be true, that the tenant has the right to quiet enjoyment of the property and that the tenant has given permission for the landlord to conduct viewings towards the end of the tenant by signing a tenancy agreement with an appropriate clause.  The two are not mutually exclusive and by point blank refusing all viewings the tenant will be in breach of contract.

A well written clause about viewings does not need to give specifics.  Landlords are required to give tenants 24 hours written notice before attending the property, that is statutory law.  As for having to say how and when viewings will be conducted that is nonsense.  Let's take a look at what the model AST from the government says about viewings at the end of the tenancy.

Access for the purposes of selling or re-letting the property
6.2 Provided the Landlord has given the Tenant at least 24 hours’ prior notice in writing, the Tenant must give the Landlord (or any person acting on behalf of the Landlord) access to the Property at reasonable times of day in the following circumstances for the purposes specified:                                                       (a) where the Tenant has given notice under clause F2 (Tenant’s rolling 3 month break clause), to show prospective tenants or purchasers, letting agents or estate agents around the Property, but only during the last 3 months of the Tenancy;
(b) where the Landlord has served a notice on the Tenant under clause F5 stating his intention to sell the property, to show estate agents or prospective purchasers around the Property; and
(c) during the last month of the Tenancy, for any of the purposes mentioned in
paragraph (a) above.

The above is a perfectly valid clause in the tenancy agreement yet gives none of the specifics you think are required.  Shelter does not agree with your take on viewings either.

BobT36 said:
Sure it could be argued the landlord has given "reasonable" notice, but who defines "reasonable"? What if the tenant works nights, or has an an absolute phobia of randoms trudging through their home? Sure repairs and other such things can be deemed as NECESSARY and therefore override that (and benefit the tenant), but viewings aren't necessary, are they? Only for one party, the landlord. (again, unless tenant is wanting to surrender early, or overstaying or something).

If a tenant refuses all times proposed as the time doesn't work for them for xyz reason (maybe they work nights, newborn baby, too busy packing etc. Heck the tenant doesn't even HAVE to give a reason), what is the landlord gonna do? As you said, sweet fanny adams. The landlord cannot just force entry for this, if the tenant refuses. 
I'd imagine, and hope that they'd be completely unable to claim on the deposit for such, as there'd been no damage to the property. 


From researching online, there seems to be argument both ways, but the common consensus seems to be that right or wrong, such terms are unenforceable in practice. 

Statutory law requires the landlord to give at least 24 hours written notice before attending the property so that would be the basis for the test of reasonableness in terms of the amount of notice given. I suspect what you mean is who decides what would be a reasonable day and time to conduct the viewings, not the amount of notice given. Ultimately it would be down to a court to decide what was reasonable but you can apply some common sense to the situation e.g. viewings at 3am is not reasonable for any party. It's best when the landlord and tenant can work together to arrange access for whatever requires the access but if a tenant really does not want to allow viewings at the end of the tenancy then I would suggest that the tenant does not sign tenancy agreements allowing access for viewings at the end of the tenancy. Don't go signing a contract with a perfectly fair contract term and then cry about it later because you don't like it. That would seem like the obvious solution for tenants. For any tenant that chooses to breech a contract term which they agreed to in the first place don't expect a glowing reference and do expect the landlord to go through check-out with a fine-tooth comb to maximise deductions from the deposit.

theartfullodger

itwasntme001 said:

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.

Any notice from tenants served during fixed term to end by end of fixed term had no (legal) effect.

Done any training in being a landlord or in landlord/tenant law?  If not why not ? (training is cheaper than the alternative....)

Artful:  Landlord since 20000

theartfullodger

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?

(effectively) Unenforceable .. (would take as long to enforce as evict).

Artful: Landlord since 2000.

Is this a wind up?  (level of knowledge expounded..).

Best wishes to all.. (Tenants, landlords, housing advisors...etc etc)

grumiofoundation

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?

As said the fact it is on the contract doesn’t inherently mean it a) enforceable or b) landlord will receive anything if is enforceable.

We had a clause in one tenancy agreement agreement saying we couldn’t hang washing outside (we did) and that we had to ensure the (non-existent) septic tank was empty when we left.

Along with the multiple ‘professional cleaning’ clauses, and despite the threats from the agent if we don’t use ‘their’ cleaner no deposit claims not summons to court resulted (although hasn’t been 6 years so still live on tenterhooks…!) 

The simplest solution is to claim from deposit scheme and see what they say (would expect they say no, but not really anything to lose) but would need to show losses.   obviously your partner also has the option to pursue in court for damages. 

How many tenants have enquired about viewings (would help show tenants have prevented it being re-let)? 

Edit: Meant to include - assuming tenants could do so without being inconvienienced (as in aren't expected to be home during working hours etc to let agents in or late evening viewings or even tidy up) do think they 'should' have allowed viewings, seems unnecessary. 

saajan_12

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. - once again, you can have both reasonable access for viewings and quiet enjoyment, the two are not conflicting. 

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". - the contract as a whole is fair. By your logic, the term requiring rent payments is unfair as it only benefits the LL. The term saying the LL must provide accommodation is often a separate term.  

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. - that's a separate deal for extra things not already agreed in the contract. Reasonable access for viewings was already agreed. 


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. - Access for necessary repairs is implied in a tenancy, but there's nothing to say that's all that can be voluntarily agreed in a contract. Indeed 3-6monthly inspections aren't strictly necessary but are included in the AST templates proposed by the government white paper. Reasonable there was deemed 24 hours notice. So I can't see anything UNreasonable with viewings given 24 hours notice and not overly frequent. 


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 only actual issue. It is possible if a denied viewer were to view again and state that they would have accepted a tenancy, had they been allowed earlier. However practically, this isn't going to happen every time so it depends on if a judge / deposit arbiter were to go decide on the balance of probabilities, that someone would have taken the property given the interest when they were able to hold viewings .

Comments in line. Your claims simply aren't as black and white as you suggest.