[Timster]

I signed a 12 month lease to rent a flat. The lease started a few days ago. However, I'm disappointed because the advert said it had a power shower (verbally corroborated by the letting agent when shown around), but now after visiting the property on day 1 of the tenancy, I discover it doesn't. There were a couple of other pre-conditions that were not met that I had in writing e.g. a professional clean which was either poor or didn't happen (the letting agent has admitted so far as to say "we had used a new contractor and it didn't work out"). I have refused to move in until all these issues are resolved. However, the landlord is very reluctant to honour the power shower installation and reckoned I should have verified this personally before signing the lease (and gave expected rhetoric about how no-one before me has complained before).

So desperate as I am to have reasonable pressure, I have offered to pay half of the costs to install a unit. He is now saying he'll look into using a company he knows that can check if it's possible and maybe agree to splitting the cost. However, the stipulation being I move in first before such an event occurs. This to me translates: move in first and then I won't do anything.

I offered to surrender the tenancy on condition of money I had paid would be refunded. This was on day 1. The offer was ignored. Ultimately, this is what I want because in my haste to secure a flat I didn't do my homework, but I fear that won't happen. All the above I have in emails and the link to the advert on RightMove still exists (the landlord does not dispute the wording of the advert). What are my options and how likely of succeeding?

I realise posting on a forum is a risky way to do things, but I'd rather start here than pay a solicitor £££s to tell me "sorry, nothing you can do".

[Flopsy]

Tim, Very sorry to read what has happened to you.

I'd have to find some of my old personal papers and see if I can find the notes of how I resolved similar problems when I did take legal advice.
I have posted here before about my experience of moving into flats after being misled or after not having thoroughly checked things out. Appreciate that you were told one things verbally and it turns out to be false. In my experience lettings agents will lie through their teeth to get money and for us to sign an agreement. What I don't know is the legal position after you have signed the lease but not moved in.

I suspect that the fact you have not moved in makes no difference as the lease has been signed.However I did have a similar experience, didn't move in and I was able to get a refund from the letting agent. Just can't remember what the legal advice was. In my case I had signed a lease and put on the paperwork that this was signed with the understanding that the current furiture was removed. It was a small flat, over-furnished and I had my own. When I inspected the flat on moving day not only was all the furniture there but the belongings of the occupier. I had to cancel the move, lost money on the moving company fees and find something else quickly. I negotiated with the estate agent to get my bond and first months rent back in the end but it was a battle of wits and only ended when I started legal action. I cut my losses and ran.

My guess is that the legal position is for you to pay the rent and tackle the LL to put in a power shower as a seperate issue. Personally I think this is unreasonable. Some things are important and our acceptance of a rental agreement is based on this. The law however seems to be along the lines that the LL needs to be given time and special cirumstances to recify any faults. That fact that these faults are enough for us not to want to live in the accomodation provided doesn't seem to have been addressed fairly. Hope that others will have better experience or have had better legal advice.

When I took legal advice about the lack of cleaning the remedy that I was told to seek by a lawyer was either to pay for the cleaning myself and then persue the LL for the costs OR to say that I would not be responsible for the end clean. I've chosen to do the latter and the small claims court supported me when my LL took action to with-hold my bond.

This post has been edited by Flopsy: 05 March 2013 - 08:56 AM

[pyracantha]

Why would you offer to pay half the shower installation costs?

It is not your responsibility to check the shower is as advertised, however you should always remember caveat emptor. Could you not tell when you looked around the property? I expect the LL will say RightMove messed up the text and it's not their fault.

If the shower situation is that important to you I'd go to CAB and do everything you can do to get out of your contract. What costs do you have upfront? If you've handed over a deposit and one month's rent in advance I doubt very much the LL will bother to do anything - hence your offer being ignored - they have your money. You refusing to move in till this is sorted is unlikely to motivate your landlord but may help if/when this goes legal. Save the RightMove listing - not the link, as the text could be changed.

I suspect the communications between you and the LL so far are a good indication of how things would be in the future.

[Timster]

Flopsy - thank you for your quick and detailed reply. That would be very altruistic of you if you were to look up papers relating to your experience. It's much appreciated. Yes, I never seem to get used to the fact letting agents tend to be habitual liars. Smile to your face, get money, then middle finger. To me this is a deal breaker, but I fear I'm too late having signed the lease.

Pyracantha - My offer to the landlord was a desperate measure on my part to get him to agree to installing the shower. When he said I should have checked, I replied that in an ideal world I would have, but if it wasn't for the fact there was so many things to consider, so little time that I relied on what I saw, what I read and what the agent told me. That to me I said should have been reasonable if everyone was honest. Good call on saving the listing, I hadn't discovered that option until you said it and had only snapshotted with print screen (which I knew I could be accused of altering).

[Damocles]

Flopsy, on 05 March 2013 - 08:41 AM, said:

I suspect that the fact you have not moved in makes no difference as the lease has been signed.

In fact it may make a considerable difference assuming that the tenancy agreement is not a deed.

If not granted by deed, a tenancy for three years or less does not start until it takes effect in possession. That means we can distinguish between a binding agreement for a tenancy and the actual tenancy. Subject to what I say in the next paragraph, once a tenancy has started a breach of agreement by the landlord or misrepresentation will not allow the tenant to end the tenancy. However, if the tenancy has not started then the normal rules applicable to contracts apply and if the breach is sufficiently serious the "tenant" can repudiate the agreement.

An exception to the rule that a tenant may not repudiate a tenancy is if the tenant acts very early. This allows a tenant who goes into possession and finds that he did not get what he bargained for to walk away.

Since in this case the OP objected at the outset there is no need to consider whether his entering the property amounted to going into possession. The sole question is whether the misrepresentation/breach is sufficient to allow repudiation. I fear it may not be. If the property was unfit for occupation or significant works agreed had not been carried out it would be more clear cut. Whilst the lack of a power shower and the failure to clean are not trifling (assuming in the latter case that the state of the property is reasonable) they are probably do not warrant repudiation.

"Let the buyer (or in this case tenant) beware" is not an absolute principle. Where a landlord or agent makes a representation a proposed tenant is entitled to rely on it. The landlord/agent's attitude here does rather suggest that the OP should have known they cannot be trusted.

The OP's best bet may be to go the agent and say: "Either you refund to me all I have paid and confirm the agreement is at an end, or I take up occupation and sue for compensation."

[Timster]

Damocles, on 05 March 2013 - 11:21 AM, said:

The OP's best bet may be to go the agent and say: "Either you refund to me all I have paid and confirm the agreement is at an end, or I take up occupation and sue for compensation."

Thanks Damocles. I think this was my 'next move'. Although the LL used the LA for finding me as a tenant, who would I be suing if it went that way? The LL or LA? The LL is managing the property. I've had initial correspondence with the LA, but since I started to get more into the dispute, the LL was corresponding with me. Also, I was thinking of offering a sweetner of say equivalent to 1 week's rent to encourage him to opt ending the agreement and refund me deposit etc. This was more a hedge against the effort of going through a small claims court than any expectation of limited success. Cheers!

[Damocles]

Threaten to sue both.

[Flopsy]

I had a look through my old letters (still on the computer) and the one I wrote to the Letting Agent was worded in such a way that I was rejecting the tenancy due to the LL not keeping their side of the bargain. Sorry couldn't find any of the notes written after talking to a lawyer.

Damocles had some very interesting and pertinent things to say about not moving in and the difference which I was not aware of.

For me it came down to this battle of wills between the LA and myself. I hand delivered a letter to the EA/LL, sent registered onesand threatened to sue for the money I had lost with the non-move (plus for my first months rent and deposit). When the EA paid the rent and despoit back he tried to get me to sign a document to say that this was a "full and final payment" which I refused to do. I was just too sick and tired to take any legal action after that.

Good luck.

[Timster]

Damocles, on 05 March 2013 - 11:21 AM, said:

The OP's best bet may be to go the agent and say: "Either you refund to me all I have paid and confirm the agreement is at an end, or I take up occupation and sue for compensation."

One thing about this Damocles - if I say I will take up occupation and sue assuming I don't get what I want, isn't this acknowledging I recognise a tenancy has been created and weaken my case? Or is suing for compensation just the cost of installing a power shower unit?

Thanks

[Damocles]

Timster, on 11 March 2013 - 12:51 PM, said:

One thing about this Damocles - if I say I will take up occupation and sue assuming I don't get what I want, isn't this acknowledging I recognise a tenancy has been created and weaken my case?

No.

Either there is a tenancy or there is not. What you have to say about the position is neither here nor there.

Either it is raining or it is not. If you say it is raining when it is not does not mean it is raining.

[porca misèria]

Damocles, on 11 March 2013 - 06:06 PM, said:

No.

Either there is a tenancy or there is not. What you have to say about the position is neither here nor there.

Either it is raining or it is not. If you say it is raining when it is not does not mean it is raining.

Is that why you see so many umbrellas up when the ground is wet after a shower?

[Timster]

OK, the landlord is being "nice" trying to offer suggestions to remedy this without committing to anything, but nothing more. I guess I have no choice but to move in. Damocles / anyone - can I sue to have this agreement voided? Or is it just going to be for the cost of the power shower? Having just met my neighbour (who was complaining within 5 minutes of me testing the TV at normal volume), it just adds to another reason for me not to be moving here, but I don't want to lose my deposit etc.

[Timster]

Flopsy, on 07 March 2013 - 04:44 AM, said:

I had a look through my old letters (still on the computer) and the one I wrote to the Letting Agent was worded in such a way that I was rejecting the tenancy due to the LL not keeping their side of the bargain. Sorry couldn't find any of the notes written after talking to a lawyer.

Damocles had some very interesting and pertinent things to say about not moving in and the difference which I was not aware of.

For me it came down to this battle of wills between the LA and myself. I hand delivered a letter to the EA/LL, sent registered onesand threatened to sue for the money I had lost with the non-move (plus for my first months rent and deposit). When the EA paid the rent and despoit back he tried to get me to sign a document to say that this was a "full and final payment" which I refused to do. I was just too sick and tired to take any legal action after that.

Good luck.

By the way, thanks Flopsy. Much appreciated. I've now gone to two separate solicitors both of whom have said the case isn't complex enough for them to take on (eh?). Basically, the best chance is to compromise with the landlord.

[Damocles]

It is often the case that the law may be on your side, but that going to court is not the best option. I think that what the solicitors are really saying is that you stand to pay out more in legal fees even if you win than you stand to lose. Accordingly the advice to go for a compromise is a sensible one. You also need to bear in mind that, whilst justice in the county court is by no means a lottery, you cannot expect a busy county court judge to give all the aspects the same consideration as a high court judge.

[Flopsy]

Sorry to hear that Tim!

Do you have any legal expenses cover to access to a legal advice line through (for example) any insurance? I found that useful when dealing with these problems. That was unable to company replaced it was legal type clerks rather than qualified lawyers. Alternatively a charity like Shelter may be able to give you the name of a lawyer.

If you do end up in the small claims court, my experience was that it was a good, overall experience with understanding judges.

It may be an idea to put to the LL a proposition of how you would like to progress this and then make a decision. It may be that he is as eager as yourself to resolve this one way or another.

Good luck.