Claim from deposit for breach possible?

pinkshoes

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?

You can write whatever clauses you like in your tenancy agreement, but the law still trumps any clause.

The tenant has a legal entitlement to quiet enjoyment so if they don't wish to allow viewings, then no viewings. 

So to answer your question, no I would not care to change my view.

I'm not a LL, but my best friend has a portfolio of rental properties, and they abide by the law. If their tenant doesn't want to allow viewings then that's their right and they accept that. They have a video of the property they can use to advertise it, and photos. They then make a list of those interested, book viewings for the day after the tenants have moved out, and then usually end up with someone signing the tenancy that day, moving in shortly after. 

They've offered cash incentives for viewings before. Sometimes they accepted. Sometimes the tenant declined. Again, fair enough. It's just part of being a LL.

BobT36

saajan_12 said:

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. 

Absolutely agree, it's a very grey area. 
" you can have both reasonable access for viewings and quiet enjoyment, the two are not conflicting. "
That depends on the circumstance, doesn't it. I'd personally say it IS conflicting (to my personal life). Anything could have happened in-between signing the contract and the last month, that makes it so it is no longer reasonable FOR THE TENANT to have randoms tromping through the house. Again, what if they now work nights, or are on holiday during the times the landlord wants to run viewings? (bearing in mind 30 days insurance blabla). 

"By your logic, the term requiring rent payments is unfair as it only benefits the LL."
Nope, completely different items there. Paying the rent is payment directly for the product, it's directly linked, the tenant is benefiting as they're receiving the product (house) directly in return for their payment. The viewings are just an unnecessary, additional tagged-on clause. For THIS, the tenant is not benefiting. Also there's no CONFLICT in the law around that, is there. There IS regarding the right to quiet enjoyment. 

"That's a separate deal for extra things not already agreed in the contract. Reasonable access for viewings was already agreed." 
Of course, I'm just saying this is a situation where I agree that a tenant SHOULD absolutely allow viewings, as they're getting something for it. 
Agreed in a private contract, yes, however again the landlord can stick whatever they want in the contract, the statute trumps it, where there is confict. 

"Reasonable there was deemed 24 hours notice. So I can't see anything UNreasonable with viewings given 24 hours notice and not overly frequent. "
YOU can't, but the tenant might. Reasonableness is not defined ONLY by 24 hours notice. That's just the bare minimum. It's such a wooly term. The landlord can't just give 24hr notice and then just turn up, nor force their way in, so there's obviously a lot of other factors at play as the tenant still has to give PERMISSION, and they don't even have to state a reason for denying. They may have any amount of perfectly "reasonable" reasons to decline, should it come to arguing in a court. All of which would likely be directly linked to the statues, of which the reasonableness and necessity could completely trump anything agreed in the contract. 

Many tenants don't even realise they CAN challenge tenancy contracts (I did and was successful in getting terms amended / removed. Heck the landlord wanted me to move 6h away and not even have sight of the contract until I arrived on the day of the tenancy start! I made them send a draft copy, and it was a good job I did, as I negotiated the amendments). Tenants also do not get any sort of legal advice, nor are they running a business, they're already on an imbalance to start with, and again anything could be happening at the time where it's no longer reasonable FOR THEM to have people viewing. 
Right to Quiet Enjoyment goes throughout the entire tenancy. Sure there's viewings clauses in the suggested templates, but this is a bare minimum guideline and for where everyone agrees and tenants do not mind. Those viewings clauses are still a private CONTRACTUAL term, and are not law, and are still unenforceable in practice. This is the whole point as the tenant's reasons not to allow will be stronger supported (BY LAW) rather than the agreement TO allow, which is purely just a private contract term.

This is not to say any contract terms should just be ignored (from either side!) but where there's a CONFLICT with existing law, the weighting will be towards the law rather than the term, especially if there's good reason. As mentioned above "24hr notice" is not the only definition of "reasonable", as otherwise permission wouldn't be required.

"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 ."
Agreed. However it would be stupidly hard to challenge a full-on contractual breach, and a tenant could use any multitude of reasons at court to argue that it was not reasonable / suitable for them to allow access at that time, and they needed the quiet enjoyment of the property at that time, as per any other month during the tenancy. 
It would absolutely be up to the landlord to claim a breach of contract, AND prove actual losses suffered, to get anywhere with it. Good luck with that! I think even a "balance of probabilities" could be argued, as without a crystal ball there would be no way to absolutely prove it one way or the other, nor prove that any times suggested were not suitable for the tenant.


These viewings clauses are not worth the paper they are written on. It's probably better to have it in than not, as you may have a tenant that just doesn't mind, or caves in! But if challenged, it's not going to be easy (or possible at all) to enforce it. While the tenancy is ongoing, it is the TENANT'S home.

[Deleted User]

I think the best thing that OP can is to provide an honest reference and wish the tenants well.

london21

Not much you can do but wait for them to leave.

Gavin83

There's another element to this which hasn't been considered too. Even if you could force them to allow viewings why would you want to? There's nothing to say they have to be cooperative. There are a number of people here who said they wouldn't want the disruption of cleaning for viewings but there's nothing to say you have to. In fact you could leave the house in a terrible mess. They could be extremely critical of the property and/or area. They could decide to use the viewing time to have a shower so there's at least one important room the buyers won't be able to view.

Ultimately my point is it's extremely easy for a disgruntled tenant to put off prospective buyers. You really don't want that, especially in the current market.

RHemmings

Gavin83 said:

Ultimately my point is it's extremely easy for a disgruntled tenant to put off prospective buyers. You really don't want that, especially in the current market.

On Thursday I'm viewing my first house with a sitting tenant. I'm wondering how it will go and will look out for any of the signs you mention. 

(OT, but I'm aware of the potential issues if a tenant doesn't leave. No money spent on the property unless the tenants have left.)