Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
Sorry for the sort delay in reverting to you. Could you bear with me for a few moments while I review our previous exchange?
Thanks. May I ask when the tenancy began and for what period you have agreed to refund rent please?
The tenancy began 27th Nov last year. As per the tenancy contract I have to pay a daily pro-rata rate for the period that the property was not habitable which has come to approx £2000
Thanks. Is there any way in which the losses could have been reduced had they condemned the boiler earlier - i.e. presumably you would have been delayed in being able to let the property had they done so and lost potential rent in that way?
Was the reason for the system being condemned evidence and unchanged between the issue of the certificate and the point it was condemned - i.e. it was not a fault that developed since the issuing of the certificate?
British gas issued the safety certificate on Nov 23 and the tenancy started on the 27th based on the gas certificate stating there were no issues. Therefore I had committed myself to a tenancy agreement because (not wholly) BG had said there were no issues with the boiler. There were no changes to the flue in the intervening period - simply, the initial check did not include an inspection of the flue which it should have done.
Thanks you. it is possible to hold British Gas liable for any consequential losses that you suffer as a result of their negligence if you can demonstrate that they were negligent in issuing a gas safety certificate. however, there is a requirement that you mitigate your losses in respect of any claim you make against them.
in order to sustain a claim therefore, you would need to be able to demonstrate that any losses you claim were both consequential to their negligent issuing of a certificate and have been avoided so far as possible by you
translating this into the circumstances, if one considers that British Gas had hypothetically issued a gas safety certificate prior to the commencement of the tenancy, then you would not be able to rent the property out straight away but rather would have had to attend to rectifying the boiler before the tenancy began. This would necessarily have meant that you would have been delayed in being able to charge any rent for the property. Accordingly, would be necessary to demonstrate that you have suffered greater losses as a consequence of British Gas's issuing of certificate incorrectly than those which you have suffered at the correctly issued a certificate.
if you can demonstrate that you have suffered greater losses as a consequence of the above, then there is a potential claim available to you
I have reduced the losses by going to the builder and having them replace the boiler free of charge. I obtained quotes for the work and it would have been £3500. So the loss of use by my tenants plus the cost of the replacement would have come to £5500. Im not sure that relates to what you have just written.
Would you have been able to complete the work faster had it not been for the tenants being in place?
the property was empty
it is rented by a company that sub lets it to corporate clients
it might have been a little quicker if I had gone directly to a plumber and not to the builder but then the overall cost would have been higher
Thanks. BG cannot be held liable for the repair costs of the boiler unless those costs increased as a result of their negligence - i.e. a minor fault developed into a major fault in the intervening time. I do not think this is the case from what you say. If this is correct then the only remaining element for which there is a potential claim is the rent. as a starting point, you would appear to have the basis of a claim for lost rent however the requirement that you mitigate your losses in this respect steps in. This requires consideration to be given to what would've happened if British Gas had condemned the boiler at the point they carried out their safety inspection. This would have meant that you could not have rented out the property until the boiler had been prepared and would have lost potential rent as a result.
accordingly, I believe your claim would be limited to any period representing the difference between the amount of time it would reasonably have taken to fix the boiler had you been able to do so prior to the tenancy commencing and the period of time it has taken to fix the boiler after the tenancy commenced. If it is taken no longer because of the existing tenancy, regrettably, I cannot see that there would be a claim available for lost rent. If you can demonstrate that it has taXXXXX XXXXXer as a consequence of the tenancy however then that would be a potential claim available for that period of additional time it is taken in terms of lost rent
Is there anything above I can clarify for you?
So BG are not in anyway liable for incorrectly issuing a certificate which if they had not done I might not have rented it out at all but used it myself? Because they issued it I committed myself to the tenancy and now have to refund £2000. If this is the case should I try claiming against the builder as previously discussed?
Could you clarify what you would have done with the property had they not issued the certificate in a little more detail?
I would probably have lived in it. I actually bought it for school reasons - which I know is not total legit.
Because you did not live in it, did you incur rental expenses in living elsewhere or do you own another house you live in presently?
I own another place
Would you have rented the other property out instead and lived in the condemned boiler property until it was resolved?
I would have lived in it from time to time as its in a convenient location and at some point I would have fixed the boiler. But twas there was not danger to life (the fault was very marginal) then I wouldn't have worried about the boiler for a while. Then next year I would have lived in it more permanently as hopefully my son would have got into a schol
What would you have done with your other property? Would you have rented that out or not? I am trying to establish what your financial loss could be.
I wouldn't have rented it. It doesn't look like I have a straightforward claim against BG or the builder which I find bizarre. I don't want to get involved in a long drawn out process so I guess I will just have to take the hit
I guess somebody has to die before people are held liable these days!
the difficulty here is that you would need to be able to establish a financial loss as a direct consequence of British Gas's failure to identify the issue earlier. in respect of the existing tenancy, the problem you will run into is that whether the issue was identified before the tenancy or after the tenancy began, there would have been for what you say, the same period approximately in which the property could not have been rented therefore your loss of rent is arguably the same either way, be it a delay in being able to commence a tenancy or as is the case here, a necessary refund of rent period in question. if you could demonstrate that he would have acted in a different manner had British Gas correctly identified the issue prior to the start of the tenancy whereby for example you would have lived in the property and rent out your the property, you may have a potential claim in respect of lost rent your other property which you would argue you would have rented out in the circumstances whilst you were living in the problem property
if however, you would not have rented out your other property had British Gas identified the issue before the commencement of the existing tenancy then once again, it is not possible to identify financial loss other than potentially some minor expenses you may be able to identify you have incurred as a result. if you are able to argue that you would have rented out your name property and lived in the condemned property then you could sustain a potential claim in respect of lost rent for the period in question on your main property but this of course depends upon how willing and able you are to sustain such an argument
is there anything above I can clarify for you any further?
No thats everything. Thanks for your help