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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 30015
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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FOR JOSHUA ONLY I need to understand the strength of my

Customer Question

FOR JOSHUA ONLYI need to understand the strength of my position given that the décor to the flats was seriously affected by the lessee’s tenant behaviour, namely:
o unauthorised painting,
o The lessee’s tenant physically and deliberately blocked up all ventilation sources with tape, leading to mould growth in areas such as window reveals and
o heavy smoking, the impact of which was compounded by the aforementioned blocked ventilationThe key clauses in the contract require that the lessee:7.3.1 To keep the Interior of the Property in good tenantable repair (fair wear and tear and damage by fire or other insured risks excepted)7.3.2 at the end of the Term to carry out any necessary repairs to reinstate the interior of the Property to their state of condition as evidenced by the annexed Inventory (fair wear and tear and damage by Insured Risks excepted) PROVIDED THAT:-7.3.4 at the end or sooner determination of the Term the Lessee shall not be required to redecorate the Interior of the Property or replace reinstate repair or clean any furniture floor coverings carpets and White Goods or any other items provided by the Lessor at the commencement of the Term7.3.5 at the end or sooner determination of the Term the Lessee may elect to make a payment to the Lessor of a sum reasonably estimated to be the cost of carrying out any repairs for which it is responsible under the terms of the Lease and if such payment is made the Lessee's obligation to carry out such repairs shall ceaseCircumstances giving rise to the dispute
The lessee suggests that the contract terms 7.3.4 means that they do not have to make good the décor and that this is down to wear and tear.The damage to the paintwork had three separate causes, of these the lessee has already accepted two, one as negligence on the part of their tenant, another as damage caused by the tenant.
a) Negligence: Condensation leading to mould growth, through a lack of ventilation caused by their tenants behaviour, neglect acknowledged by the lessee. The lessee also acknowledges there was a failure to act on the neglect.
b) Heavy smoking. With no ventilation, blocked by the tenants action and neglect, to the extent that even fixtures and fittings were badly tobacco stained.
c) A poorly executed and unauthorised paint job by the tenant (Listed as damage under ‘Rental Housing Online guidance and by agents we have spoken to). Not the least because the tenant also managed to paint over timber edgings and onto doors and light fittings. The lessee acknowledged responsibility for the paint on to woodwork and a subsequent offer of payment for that element was madeThe evidence on which we rely
The agreed terms
The physical damage, and the causes of same
The original inventory, photographic images before and after
The lessee’s acknowledgment of tenants action in the flat that contributed to the damage to the décor.
The lessee’s acknowledgment that they failed to take action to mitigate same
The lessee’s acknowledgment that the tenant had undertaken an unauthorised paint job and subsequent financial offer for that element to make good architraves , doors and skirtings splashed on by poor painting
The lessee’s acknowledgment that the flat is not tenantable without decorating certain elements
The lessee’s acknowledgment that this was a contract between ‘a landlord and an agent (the lessee) acting as a landlord’
The scope and cost of repair
Submitted: 20 days ago.
Category: Property Law
Expert:  Joshua replied 20 days ago.

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years’ experience. Please be aware that although I will endeavour to reply to you promptly, I am also in full time private practice and so I may not be available to respond immediately and it may also take me a few minutes to prepare a reply. The site will notify you as soon as I respond. I look forward to working with you to answer your question fully.

Thank you for the above. Again do you happen to have a copy of the agreement available to upload?

Customer: replied 20 days ago.
I do but the upload option is not giving me access to iBooks or pdfs. Do you have an e Mail address?
Expert:  Joshua replied 20 days ago.

Thank you. I do but I am not permitted to exchange personal contact information. The upload facility should provide you with an option to upload a PDF? alternatively, it is possible to contact customer services and email them a copy of the document for them to forward to me. This usually takes a number of hours but it is an alternative. otherwise, I am happy to deal with the above based on the extracts you provide - it just occurred to me that I may be missing something without sight of the actual document. please let me know how you prefer to proceed

https://www.justanswer.co.uk/help/contact-us

Customer: replied 19 days ago.
Hello Joshua, I will endeavour to get a copy through to you via customer services or by any means.
Expert:  Joshua replied 19 days ago.

Thank you.

Customer: replied 19 days ago.
Good morning Joshua, can you confirm that you received the contract I forwarded through ‘Just Answer’ support e mail?
Expert:  Joshua replied 19 days ago.

sadly I have not yet. For some reason these documents do sometimes take a while to come through. As I think I have mentioned, it is not critical that I have this document and accordingly, if you are a patient for a response, I can likely deal with the matter relatively comprehensively based on the extracts you have kindly provided. It was just a thought in terms of having the entire document in case there was anything missing which I otherwise would not know about, mentioned in the assumption it would be a simple matter for you to upload the document. Please let me know if you prefer to proceed on the basis of the extracts you have provided which it is quite possible the document will add little or nothing to.

Customer: replied 19 days ago.
Thankyou Joshua. In that case proceed with what you have
Regards Peter
Expert:  Joshua replied 18 days ago.

thank you. Based upon what you say, the tenant is conveniently choosing to read clause 7.3.4 in isolation of the remainder of the terms of the lease which of course it is not. Clause 7.3.4 does not operate as a blanket indemnity as the tenant appears to hope. Rather, it must be read in conjunction with clause 7.3.2 which provides that the tenant has an obligation to repair and reinstate any damage that has been caused safer wear and tear [PROVIDED THAT] in other words "subject that other than the obligations contained in clause 7.3.4", they will not have to redecorate but I do not see anything here that absolves them of the need to repair decor that has been damaged.

in addition, I would imagine there would be another clause in the agreement provided that no alterations should be carried out without your permission is landlord and the repainting of different colours of certain rooms would amount to an alteration which would be a breach of any such clause that exists in this respect which again would in my view give rise to an obligation to reinstate the original paint colours despite clause 7.3.4.

It is not entirely clear to me why it was agreed that 7.3.4 should be in the agreement as this would appear to give them some degree of latitude in respect at least to furniture, floor coverings and White Goods as the clause. it may be that there is some correspondence that adds context to why this clause was agreed which may help interpretation.

Customer: replied 18 days ago.
Joshua, thank you again. I will just try and load up that contract as a series of images, that may provide greater clarity
Expert:  Joshua replied 18 days ago.

Thank you. Would I be correct to assume the tenant prepared this lease for you to sign?

Customer: replied 18 days ago.
First for clarity, just so that I know we are both are in tune…..the ‘Tenant’ is the company who sub let the flat, to then rent it out to their tenant.In that sense they are our tenant. They put it a different way, ‘…the lease would be between yourself and us as the landlord also’. So yes this is a standard document that they have prepared.
Their ‘selling point’ at least verbally, to us the contract does state it quite clearly,
Is that they will return the flat in tenantable condition. It was far removed from this. I actually asked them in writing, ‘what would we have to do to let the flat again through them, I.e. to make it Tenantable ?’ They rather obligingly provided a long list…..surely that should form the basis of how the flat was handed back?The ‘tenant’ manage countless properties and rent them out on behalf of local authorities. The property was unfurnished. However there was a fitted kitchen an oven and a new fridge freezer.
Expert:  Joshua replied 18 days ago.

thank you for clarifying, but we are "in tune" on that point - I am more than familiar with contractual tenancies and their role and purpose in such scenarios. As you rightly so, when I refer to the tenant, I am referring to the tenant company that leased and in turn sub let. I assumed it had been prepared by them as what they appear to have done is taken a relatively standard contractual tenancy precedent and then added some additional provisions which no doubt they felt suited them. However the drafting is a little clumsy in my view.

somewhat extraordinary, I cannot see any restriction on internal alterations. The alteration causes limited to external alterations and accordingly, my comments in relation to the able to rely upon alteration clause most likely does not apply. The balance of the above remains. My view is you have an argument in relation to the decor damage on the above basis that damages should be repaired and restored. in respect of any doubts as regards ***** ***** this respect, you will also have the benefit of the "contra proferentem" which is a rule imposed by courts which interpret any doubts against the party that draft of the agreement.

In addition, to go alongside interpretation, you can present any evidence that was provided to you though of course if such evidence was only provided verbally, this is your word against theirs though you can still make a statement in this regard, I do not think it would be terribly difficult to convince a judge that it was not your intention to rent property which tenant then had the right to trash and return to you without liability. Few property owners would knowingly rent on those terms.

Customer: replied 18 days ago.
Joshua, thankyou again. Absolutely agree. Under NO circumstances would we have considered letting the flat where wholesale damage could be done and items stolenThe ‘tenant’ has already accepted the principle that interference or damage by their tenant is their responsibility. Initially there were about ten separate issues pertaining to damage of one sort or another to the flat. We have a written offer from them on six. Some of those are damage by the tenant, some through interference by the tenant.Did you see the other two questions that I raised as separate issues for you?
1) was relating to the kitchen
2) the other to the electrical system
Expert:  Joshua replied 18 days ago.

Sorry those have not shown up in my list - this is probably because you have not posted a reply back to them, but I will be going through all uncompleted questions shortly so will pick them up as part of that process and reply back to you on them so please do not trouble yourself to reply specifically.

Expert:  Joshua replied 17 days ago.

I hope the above is of some assistance but if you have any further questions, please revert to me.

Expert:  Joshua replied 15 days ago.

I trust the above was of assistance and that you do not have any follow up questions for now. If there is anything else I can help with please reply back to me though.

Expert:  Joshua replied 14 days ago.

Thank you again for visiting JustAnswer and see you again in the future I hope.