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About Damocles

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  1. Has a contract been signed by either you and/or the landlord/agent?
  2. I agree that some landlords and agents treat tenants as third class citizens and ride roughshod over them. I can understand the view that inspections are of no benefit if they are not followed up by carrying out repairs revealed by the inspection. If that happens ask why they are bothering to inspect. Remember aslo that you can complain to your local council if the landlord is not carrying out repairs.
  3. There are no hard and fast rules about how often is excessive when it comes to inspecting the condition of the property. You say you derive no benefit from the inspections, but bear in mind that it is in the interest of both landlord and tenant to ensure that the property is kept in good repair. It is better to have a landlord/agent inspecting at reasonable regular intervals than not at all. Personally, I would not regard twice a year as excessive. I have tried to find what the RICS recommend as good practice, but Googling has not thrown anything up. I did though find that the law in Australia considers once every three months acceptable. The Landlord Law Blog https://landlordlawblog.co.uk/2017/06/21/tenancy-agreements-33-days-tips-day-24-inspections/ considers every three months to be about right. Mortgage valutations are in a different category and a tenant can decline to allow them if not provided for in the terms of the tenancy. It is annoying when agents adopt a peremptory tone. Agents should realise it can be counter-productive.
  4. Rank amateur drafting! I'll ignore clause 4.1. On its own, clause 4..2.1 is clear enough, and the implication is (without any date being given before which the notice must expire) that the notice can expire at any time. There is also nothing to prevent the notice being served at any time during the first 8 months. Clause 4.2.2 confuses the issue. What is a period of the tenancy? I suspect what is meant is rental period, but it does not say that. A fixed term tenancy does not have distinct tenancy periods, but is composed of as many "periods" as you care to specify. Only periodic tenancies have tenancy periods - hence their name. Even if it is held that period here means rental period, the clause seeks to qualify clause 4.2.1. If you want to specify the earliest date on which the notice can take effect you really should put it all in one clause and make the position free from doubt. There is in my view a strong case that this clause can be ignored. Even if it cannot be ignored, where does the agent get his ten months from?
  5. There will always be cases where it is clear a provision will be unenforceable e.g. an agreement by a tenant in a lease of residential property for seven years or less to repair the exterior. However, as I say, even if the case is clear, you do not want to get into an argument or risk a judge getting it wrong. The sad truth is that agents get away with stuff they should not get way with because people let them. As suggested, this is partly due to tenants not realising they are being stitched up, but also to a failure to stand up to agents. People are just too deferential to men in suits!
  6. If I have not offered any suggestions as to what is reasonable it is because we have no guidance. It is the sort of question where we cannot really guess what a judge or adjudicator will think. I think we are in fact thinking along the same lines. A blanket refusal is unwise and going some way to allowing inspections has to be recommended. The basic point is that reserving a right for viewings is not intrinsically unreasonable. A judge is therefore likely to ask a tenant whose tenancy agreement allows viewings and who has refused them, why he thinks he does not have to comply with what he agreed to.
  7. Timster said "I've read in so many places the clause in the tenancy agreement was unenforceable". The internet is littered with unqualified pronouncements. Those like me saying that actually it is not that simple and recommending caution are few and far between. Not exactly. Potentially (at least according to the adjudicator) the right could have been enforced. Absolutely! Not sure that is the best advice. If your proposals are of no value how are you being reasonable? As I said above, in the absence of guidance from the courts, we cannot be certain what is reasonable, but it has to be something between a constant stream of visitors and only allowing them after 11 p.m.
  8. Never sign a contract with a clause in it you do not like. Period. Even if it is unenforceable (and are you sure it is unenforceable?) you do not want to be getting into arguments. Apart from that you cannot be sure that an adjudicator (or even a county court judge) will get the law right. If an agent says something is their policy and cannot be changed, you respond by saying that your unchangeable policy is not to be browbeaten into signing unreasonable contracts.
  9. Tenants could certainly do with a union. They sort of have one with Shelter. The problem is the perennial one of getting people who need help to organise themselves. The problem with any discussion on what rights of entry landlords have is that "quiet enjoyment" is not fully understood. Its purpose is to ensure that a landlord does not interfere with the tenant's use and occupation of the property. It is not absolute. It comes into operation by an obligation which, in the absence of agreement, the law implies into a tenancy. This means it takes effect subject to the other terms of the lease. Where the terms conflict the law tries its best to give effect to both. On the one hand it will not allow the landlord to do anything which significantly undermines the tenant's right to exclusive occupation, and on the other will not allow the tenant to prevent the landlord from exercising reasonably the rights he has reserved. What is important here is not so much what the right is, but how the landlord exercises it. A right for the landlord on 24 hours notice to inspect the state of repair of the property has to be exercised reasonably. The intervals between inspections have to be reasonable. Of course the right reserved has to be such that its exercise does not amount to a derogation from grant, that is undermines the nature of a tenancy. There is no doubt that the law allows landlords to exercise rights of access to carry out repairs and to inspect to see if repairs are needed so long as they act reasonably. Few would argue that that is unreasonable since it is in the interest of both landlord and tenant that the property is kept in repair. Inspections by prospective tenants, buyers or lenders are trickier. I am not aware of any guidance by the courts. One can advance arguments for both sides, but whatever I or anyone else's views may be tenants need to accept that an absolute refusal may be considered unreasonable by an adjudicator or judge. Accordingly, my advice to tenants whose tenancy agreements require them to allow inspections by prospective tenants, buyers or lenders is to negotiate an acceptable compromise if they want to retain some measure of control.
  10. The Agent with the consent of the Landlord and the Tenant may deduct monies from the Deposit It look like answers to my questions are not needed. Assuming there is nothing else relevant in the agreement, the above is clear. No deduction may be made without your consent. Tell the agents you do not consent and that they must therefore return the deposit without delay since it is your money. This is a classic case of shooting yourself in the foot drafting and you are the beneficiary.
  11. We need to know what the tenancy agreement says about: the tenant's repairing obligations the tenant's obligations on quitting the premises what the deposit is for
  12. If a property is sold subject to a tenancy the tenancy continues and on the same terms - the new landlord steps into the shoes of the old. Where the property is residential, the new landlord is obliged to notify the tenant of the change. Failure to do so within the prescribed time limit is a criminal offence. See section 3 of the Landlord and Tenant Act 1985.
  13. Whilst it is quite true that the landlord cannot "just come and take the property off her [daughter] for playing music or not clearing the gutters" or indeed for any other reason and needs a court order, it is not the case that the words quoted have no effect at all. First, they are needed because of section 7(6)(b) of the Housing Act 1988. Secondly, they apply if the tenant ceases to occupy the property because the Protection from Eviction Act 1977 only applies where there is someone in residence. If posts on legal forums are anything to go by, it is not unusual for agents to agree to something and then not provide for it in the tenancy agreement. In this respect, and indeed in any event, it is important to read the tenancy agreement before signing it. Unfortunately many if not most people do not read legal documents which are more than a page long. If you do read the agreement and it does not reflect what is agreed do not sign it. Do not rely on bland assurances that it will all be all right because the agreement is standard or the agent is not allowed to amend it or whatever else he comes up with.
  14. Thank you for the vote of confidence. A letting where an agent is involved is not a three-way agreement between landlord, tenant and agent. The tenant has no contractual relationship with the agent. He is not concerned with the terms on which the agent is engaged by the landlord. There cannot be any comeback on the tenant if he complies with the landlord's request to deal directly with him. There is more likely to be a comeback if he does not comply. It is certainly a good idea to sort the deposit out if held by the agent. The agent must comply with the joint instruction of landlord and tenant as to its disposal.
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