A Modern Day Christmas Carol

Well, here we go again! The end of another year. It certainly was an eventful one but 2018 promises to be an even more tumultuous year for the private rented sector. The Government is now seriously looking at what could be tantamount to a revolution in the housing industry and the times they are a-changing!

Those of you who follow my blog, will know that I have spent a considerable amount of time considering and responding to the numerous consultations that the Government has been conducting. No doubt further work will be required by the industry to work to get the right regulatory framework that also allows for a strong and competitive market, focused on service and quality.

However, if any of you thought that all the fuss is unnecessary and a waste of time, I would like to share with you a salutary lesson that shows that however well you run your business, a lot of your rivals are out there flouting and exploiting tenants and playing fast and loose with the law and the reputation of the sector.

Last week, I received an e-mail from a tenant, who reminded me that last Christmas I was in a central London pub and I overheard him and his friends vigorously complaining about how incredibly overpriced and bad, housing is in London. In the spirit of the season, I intervened and explained about the protections and laws that were in place and that the industry was working to make things better. I left him my card and thought nothing more about it.

The e-mail I received however, outlined a sorry tale that would make Dickens’ “A Christmas Carol” a pleasant read, and although this was not a formal complaint through our scheme, I felt obliged to respond to the missive and at least point the guy in the right direction to get help.

The picture painted, by the tenant, was a property that he and his flatmates had recently moved into. They were paying "top dollar” for the place and they had signed a two-year contract with a14-monthh break clause.

He went on to outline a catalogue of faults and disrepair in the property, including gaps in the floor boards where you could see the lights from the room below, both the showers in the property barely worked, the walls of the property were so thin, you could hear every noise, the property had cracked windows, doors that failed to close properly, it had little insulation and therefore although the heating worked, the property was always cold, the majority of bulbs in the property were blown when they moved in and the embedded lights were difficult to change and the new bulbs only lasted a couple of months.

How serious each of these issues is, in isolation, is a moot point. However, the tenants are feeling short-changed and the noise and cold are cumulatively detrimental to their experience of the property. I, of course, have seen worse conditions in some of the complaints I have dealt with, however it struck me that at least in the capital, this standard of property is typical and for that the highest rents are charged.

I, therefore, responded to the e-mail as follows (it should be noted that I kept the advice fairly generic and that I had only the tenant’s version of events and no concrete evidence to back up his allegations.


Dear Tenant,

 

Thank you for your e-mail. I am sorry that you are experiencing such unacceptable conditions in your flat.

Whilst I cannot give you any formal advice, I am happy to give you some pointers on what course of action you can take. Some of it applies to your agent and some to your landlord.

It should be noted you are bound by a contract and should not break this, without the express permission of the landlord or with sufficient proof that they have breached the contract. To do so would be abandonment and you would be responsible for loss of rent and the landlord’s expenses. You should also at this stage continue to pay your rent as again, not doing so would leave you in rent arrears and liable for eviction, with its associated costs and effect on your credit history.

Decide firstly, what you actually want. You may want to leave the property full stop, legally and without prejudice. You may want the property to be brought up to a habitable condition otherwise you want to be released from the contract. You may also want a reduction in rent for any period the contractual provision fell below the standard it should have.

 

You do however have a number of avenues you can pursue to try and resolve your objective. How you deploy them will be up to you.  

 

1.       Check that the agent/landlord has undertaken all due compliance before you moved in. By this, I mean they were meant to have undertaken a number of legal tasks before letting out the property.

Has it legally been protected?

The first obvious one is, as you paid a deposit, has it legally been protected in one of the three tenancy deposit schemes? To comply with the law, the person you handed over the deposit to, should have done this within 30 days of you paying it (not the start date of the tenancy, even if these are the same). They also are obliged, within the same timescale to provide you with a signed copy of a deposit certificate and what is called prescribed information. This legally required information that proves the landlord has protected the deposit, that this is correct and also they have provided you with detailed information on when and how you can dispute any deductions from the deposit.

Failure to do this means that you can take the landlord and/or their agent to court and they could face a penalty of three times the deposit as a fine.

Were you provided with the following documents prior or shortly after the commencement of the tenancy?

A copy of the energy performance certificate. This is a legal requirement, however in a shared house they only need one for the whole house and in such cases, the landlord may not have been obliged to provide you with your own certificate, however a valid rating should have been obtained before advertising. Failure to have a valid certificate could mean a fine for the landlord.

Did the agent/landlord provide you with a “How to Rent Guide”? This is another legal requirement and failure to have done so could mean a fine. Ironically had they provided this, then you may not have needed to ask a lot of the questions you have been forced to now.  https://www.gov.uk/government/publications/how-to-rent (Read this yourself now)

Does the property have all the appropriate safety requirements? You should have in place working smoke alarms, a valid gas safety certificate, and have proof that the electrics are to the required standard. Was a legionella risk assessment carried out?

Does the property require any form of licensing or local registration? For certain properties a High Multiple Occupancy Licence is required. The criteria for this are: it's at least 3 storeys high, at least 5 tenants live there, forming more than 1 household and you share toilet, bathroom or kitchen facilities with other tenants. However, in many local authorities, they operate other types of additional or selective licensing that have different, and possibly stricter, criteria and may require all rental properties to be registered.

Check the agent’s compliance

 

Currently, letting agents are not regulated, however, your agent may be a voluntary member of an association, namely ARLA Property Mark, NALS or UKALA.
If they are, you may be able to complain to their organisation if their conduct is lacking. However all agents should be a member of a redress scheme and the three schemes are ourselves The Property Redress Scheme, The Property Ombudsman or Ombudsman Services. They should have clearly indicated to you which one they were members of by either displaying a logo or declaring it on their website. They should also have a complaints criteria in place. Any fees they charged you should have been clearly advertised in their office or on their website.  

This checklist of compliance will indicate, how legitimate the landlord or agency is and whether your rental was conducted correctly. Breaches of this regulations are serious and you can report them to local trading standards and the consequences for them could be severe.

This does not mean your tenancy is invalid and you can walk away, however, these are powerful bargaining chips and may mean a mutual agreement can be reached to release you without penalty or to get things done.

The agent and landlord, however, may have ticked all the boxes and then you will need to look at other solutions.

 

2.       The landlord is obliged to keep the property in good order and deal with any repairs required. The essential repairs relate to heating, water, electricity etc. The landlord is not responsible to keep the property in good decorative order or be responsible for damage caused by tenants - however, any safety issues are their responsibility. Failure to undertake these repairs and in a reasonable timescale could mean you could seek a repair order and if appropriate withhold rent in lieu of repairs you may have to get done yourself.

However, this could be a long process depending on your local authority and could mean you have to go to court.

In the first instance, therefore, I would suggest you list all the issues and write to your agent/landlord to complain. Check your tenancy agreement for who you need to contact. For example, some agents only let out the property and then maybe collect the rent, others fully manage the property and the landlord is directly responsible. Other agents do provide a reporting service, where repair requirements are passed on to the landlord but they are not responsible for the work.

 

Find out what tasks your agents do

If your agency is let only or rent and collect they should provide you with contact details of your landlord on request if you do not have them. You may also have recourse to make a complaint against the agent for poor communication and service. In the event the agent does not provide a satisfactory response to any complaint, you can refer the complaint to their redress scheme.

At the moment, a complaint against the landlord may only be resolved in court. Do however make a full complaint to the landlord in writing.

In terms of light bulbs, check your tenancy agreement - it is often your responsibility to replace them. However, it should be noted that you should expect the property to be in the same state as it was advertised and when you viewed it.

If you believe the property was misrepresented or that you were given misleading information that, materially, led you to a decision to rent that you otherwise would not have made. In this instance, then you may have a case against the agent under Consumer Protection Regulation. For deceptive advertising, there is the Advertisement Standards Authority - this may be another avenue to explore.

I would also check to see if an inventory inspection was undertaken listing the condition of the property and this should have been provided to you to check and sign. If one was provided and does not match the condition of the property, then you should note the differences and ask for it to be amended. This document will be key to any dispute you may have over the deposit at the end of the tenancy. Ultimately the absence of an inventory or a poor one will prejudice a landlord as they will not be able to prove their case, however, it is needed for you to prove that the property was not in good order when you moved in. Do this immediately as sometimes agents or landlords put a time limit to make amends. List out all the issues and take digitally dated pictures.

 

3.       Keep full records of everything

 

E-mails, times and dates of telephone calls. You can record calls, but you should inform the person you are recording that you are doing so. Store or photograph any text messages and follow up any face to face conversations with any party.
 

Cooperate with the agent/landlord in arranging repair visits, but remember, they must give you adequate notice of visits and in all but emergency situations gain your permission to access the property.

 

4.       You may have to revert to legal methods

 

Finally, you may have to revert to legal methods and court if things do not improve. You can get an order to offset rent and to instruct your own repairs which would be at the expense of the landlord (usually in reduced rent.)  Only a court or the landlord can release you from your contract, however if after you have taken all the enforcement actions and you still want to stay in the property subject to the repairs, (location, amenities may be good and you would be happy if the repairs were done), then the landlord cannot evict you in a retaliatory action using the no-fault eviction process. Many tenants are afraid to get tough with the landlord as they are afraid of the consequences, however, the law does now partially protect them.

I appreciate that the overwhelming feeling you have at the moment is to get out of the property and it always surprises me that agents and landlords do not understand that the process of homemaking starts only a few hours after a tenant moves in and that positive or negative feeling will affect their whole experience of the property and their tenancy.

From your perspective, try and see if you can resolve this situation using some of the information above. There is lots more available online and from the free services of Shelter and Citizens Advice. Do act quickly and follow a strategy, especially where your legal obligations are concerned. You should try and resolve the matter amicably so do not fire all your cannons at once. Be prepared to accept having to remain in the property as an option and to if possible think positively about its good features. What are the essential things to change to make you start feeling at home? No rental property is perfect, however, if you have negative feelings about the property then you will continue to resent it and find more and more wrong with it. 

Sometimes due to this accumulated dissatisfaction, your grievance will be disproportion to the responsibility and liability of the landlord and redress available feels inadequate to this feeling. Remember after all you will have to live in the property whilst these matters are resolved so try and keep some proportionality in the short term, while things progress.   

I hope this is helpful and that you can get things resolved quickly and to your satisfaction.

 

Kind regards,

 

Sean Hooker

As you can see, there are a lot of rules and regulations that the landlord and agent need to comply with, however, whether these are enforced, enforceable or the tenant has the will or means to pursue it is debatable. Ultimately the tenant has still to do all the running and I appreciate, it is like tackling a resistant virus, you have to have a whole cocktail of remedies to tackle the issues and some of these can be as painful as the situation itself.

The tenants are now faced with trying to get as much sorted with their landlord and either sticking it out, walking away in default or unlawfully withholding rent. Whilst I cannot advise on what they choose to do, it may well be an option for them to take extreme measures and force the landlord to take them to court and justify their position. Either way, this is a sorry state of affairs for all concerned in the industry.

As usual, there is no Christmas fairy with a magic wand and the ghosts of the past, present and future will haunt the industry for some time to come unless we get a grip and take responsibility for the safety, quality, and reputation of this vital service.

Plenty of food for thought, whilst we enjoy the festive period and come back refreshed and ready to face the challenges of 2018.

So, from the team at PRS and myself, have a wonderful holiday season! 

 

 

 

 

 

 

 

 

 

 

Sean Hooker, Head of Redress