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tdlawyer
tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience:  11 years experience of general practice.
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I have been In a property for a month, when I moved into the

Resolved Question:

I have been In a property for a month, when I moved into the property the boiler did not work, there was a leak from the outside above the balcony bay door that spanned in excess of a metre, that leaks heavily every time it rains, the washing machine and oven did not work and there was mould in the bathroom and bedroom, the reason for the oven not working was a fuse switch being held together by sellotape and not being connected properly. I've stopped the direct debit as the the mould in the bedroom and the leak have still not been repaired. Am I liable for rent and can I get a full refund due to breach of contract.
Submitted: 3 years ago.
Category: Law
Expert:  tdlawyer replied 3 years ago.

tdlawyer :

Hello, welcome to the website. My name is***** can assist you with this.

tdlawyer :

Does the tenancy agreement contain a claim that prevents "set-off" (i.e. the set off of one debt against the other, in this case, the damages claim you might have against the rent)?

Customer:

Have you got any idea where I would find such a clause in the agreement

tdlawyer :

Usually towards the end, but there is guarantee about that.

Customer:

Okay I'm looking through now, ant idea of the potential sub headings

tdlawyer :

It could be anything ... but usually, it says "Set Off".

tdlawyer :

Let me tell you position with/without, then you can look carefully through it later, okay?

Customer:

Yes that would be good thanks

Customer:

Are you still there?

tdlawyer :

Okay then. If the mould is pretty bad (and you being on here asking probably means it is), then it might make the property unfit for human habitation. If this is the case, it's likely to be a breach by the landlord of the tenancy agreement. As such, this means that you would be entitled to contact the council, and get them to take enforcement action.

tdlawyer :

They have the power to prosecute landlords for this type of thing.

tdlawyer :

Then, you may have a claim to offset against the rent (if there is no offset provision). The difficulty is working out what a reasonable amount of damages is for the purposes of a counterclaim.

tdlawyer :

But in principle, you can do this if there is no offset clause. If there is a no-set off provision, it means you have to continue to pay the rent and bring a claim separately.

tdlawyer :

Now, I assume this is an AST, correct?

Customer:

Ast?

tdlawyer :

Assured Shorthold Tenancy?

Customer:

Yes

tdlawyer :

Okay. Basically, I appreciate your question was about rent, but I think I should mention that a s.21 notice can be served on you (with notice) to require you to vacate at the end of the fixed term. There is no defence to that notice.

tdlawyer :

So the landlord could eventually force you to leave the property anyway.

tdlawyer :

The position of rent is a separate matter of course, but I thought I would just round off and mention that too.

Customer:

I no longer want to be here, from reading the tenancy agreement it states, the property has to be water tight from the date of commencement and all electric fixtures/appliances have to be tested, this was not done as it's leaking right now and the fuse held together by the sellotape, was the reason for the oven not working. Is this not enough for Me to request a full refund under breach of contact - and would this not make the tenancy void as the agreed term had never been met?

tdlawyer :

How long have you been there for?

tdlawyer :

Oh, 1 month?

Customer:

2 days until a calendar month

tdlawyer :

Okay. Were you told before you signed that it would be water-tight and no leaks, and that there would be no issues of the kind you now have?

Customer:

Yes I actually called up to check as I've seen bad reviews online after putting down my deposit. It actually states word for word '4.3 To ensure that the premises are water tight on the Commencement Date and all installations, systems and appliances are clean and in proper working order. On the tenancy agreement

tdlawyer :

Okay, then you might be able to claim recession. This is where you end the agreement because you have been mis-sold the tenancy agreement.

tdlawyer :

IF you choose to do this, you need to move out and make it clear you're doing this. You cannot stay, as the idea is you end the contract and go back to the position of not being in one.

Customer:

Would I be entitled to a full refund in that case as I've spent £1700 moving in

Customer:

And how would I go about that?

tdlawyer :

You might be entitled to a refund yes, especially if your damages claim for the state of the property etc. equals or exceeds the amount of rent so far paid. The courts will say you shouldn't profit from litigation, and to that end, normally, if you had to pay rent elsewhere, you'd have lived somewhere rent free. But, in this instance, you potential have a damages claim too, and you're entitled to pursue that.

Customer:

At the present moment I haven't paid any rent except the months rent upfront, as my rent is not due until Monday, what would you say my best course of action is from this point? And is there any way of me getting a refund without going to court as i do not want to pay court costs and without the original money I'm not in a position to move as I relocated from another city so would need to rent another place

tdlawyer :

I would encourage you to go and get a solicitor to write to the landlord to put this articulately and make the landlord realise you're serious about what you say you're intending to do. Sometime, landlords try and bully tenants, but this isn't likely if you have professional help. The only way of getting a refund without going to court realistically is to reach an agreement, or go through the deposit adjudication schemes where you deposit is protected. (If there is a deposit protected!)

Customer:

I understand this is advice and not binding, just want to know what you think would be the best course of access

tdlawyer :

It's really difficult for me to say. It depend on the evidence, the agreement and how bad the problems are.

tdlawyer :

You only have to show your claim on the balance of probabilities though, i.e. more likely than not you're right. It's not like a criminal court.

Customer:

I've take photographic evidence of everything and got written confirmation that these issue are real and were reported at the earliest point available. Is me withholding rent acceptable due to the repairs still not being completed?

tdlawyer :

This goes back to what I was saying earlier.

tdlawyer :

About the damages claim you might have and the set-off etc.

Customer:

And the agreement states the above word for word with 3 other points that have not been adhered to from the date of commencement. With that said to I need to get the solicitor to write to the landlord or agent.

tdlawyer :

They can write to both.

Customer:

I'm not clear on what you meant regarding the offset. I don't want to appear idiotic, would you be able to expand on that in a simpler way?

tdlawyer :

I'll try :)

Customer:

And I don't have the landlords details as I went through the agents and they won't allow for contact with the landlord

tdlawyer :

If you have a claim for breach of contract, e.g. you're entitled for damages for inconvenience/stress etc., then you're entitled to money for that claim.

Customer:

Okay would they be liable for the court costs aswel

tdlawyer :

What you want to do, is to "off-set". This means deducting the money due to you from him for breach, from the rent he says you owe to him. So, if the rent if £1,000 and you have a claim against him for £700, then you would only have to pay £300 for rent that month.

tdlawyer :

This is called "set-off" or "offsetting".

tdlawyer :


What you want to do, is to "off-set". This means deducting the money due to you from him for breach, from the rent he says you owe to him. So, if the rent if £1,000 and you have a claim against him for £700, then you would only have to pay £300 for rent that month.






1:19 PM



This is called "set-off" or "offsetting".



tdlawyer :

If the agreement say you can't do this (in a "no set-off" clause), then you can't do it, and yo must pay rent as normal.

tdlawyer :

Do you understand?

Customer:

And where would I find the rate to calculate such an offset?

Customer:

Oh okay I understand now, will there be one of the two mention in the agreement or is it a case of if it's not mentioned then it's up to us coming to an agreement?

tdlawyer :

If it's not mentioned, then you can offset.

tdlawyer :

There is no sure-fire way to work out the amount offset, this is the problem.

tdlawyer :

You don't know what damages the court might award.

tdlawyer :

It's really tricky.

tdlawyer :

But if you're talking about figures for less than £10k, as you are here, it'll all be on the small claims court system anyway, so even if you lose, you're not likely to be liable for legal costs etc, anyway.

Customer:

Thank you for the information it is greatly appreciated ill speak with the agencies and see what they have to say regarding off setting against the rent, would that be a good idea?

tdlawyer :

You can speak with them, but I expect they might favour the landlord, he sends regular business their way!

tdlawyer :

The best thing, get a solicitor or somebody at the CAB to have a look for you.

Customer:

Thank you appreciated.

tdlawyer :

Can I ask whether you're happy with the service today?

tdlawyer :

Can I ask whether you're happy with the service today please?

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