Jump to content
House Price Crash Forum
Timster

Adjudicator found against tenant for refused viewings

Recommended Posts

My Deposits has just awarded 2 weeks rent because I refused viewings. I've read in so many places the clause in the tenancy agreement was unenforceable (yet the adjudicator quoted it). Basically the landlord was a complete *** so I felt morally justified. I also refused to pay the last month's rent because the landlord didn't acknowledge my notice (as stipulated in the tenancy agreement). I just feel the adjudicator was being thoroughly lazy as they basically said "the remainder of the deposit goes to the landlord to compensate them for potential loss of earnings, I cannot adjudicate any further". Any advice from experienced members?

Share this post


Link to post
Share on other sites

Can you explain what you mean when you say the landlord didn't acknowledge your notice? Surely if your landlord is setting up viewings then they have acknowledged  you are moving out.

I think when it comes down to it, if there is unpaid rent that will always be taken from the deposit, but its surprising to hear them mention loss of earnings as a reason. I mentioned in another thread that I don't pay any Landlord/Letting agent fees once I am in the property, inevitably they take it from the deposit when I leave, but I always claim the money back from the deposit company and have always won (maybe 4 or 5 times now).

Have you read up on My Deposits adjudication process? They should have something up on there website which clearly states what they should base a decision on, so if the adjudicator has done this on a whim you might have a case.

Share this post


Link to post
Share on other sites

The landlord only "acknowledged" my follow up which was not enough notice so I didn't know if they would claim for a rogue month (so yes, the notice was acknowledged by the landlord's wish to show viewings, but I was still never clear if it was "in time").

The unpaid rent was taken from the deposit and in fact the scheme acknowledged this so there was about £500 remainder in contention. I didn't dispute the unpaid rent, just the remainder.

Their website says: "Unlike the formal legal system, schemes are not governed by ‘precedent’ in the same way as the Courts. Decisions are made by the Schemes on the principle of ‘balance of probability’. Decisions are made based on the submission of evidence from both parties." However, whatever they say, surely them quoting the tenancy clause without consideration to the enforceability of said clause is wrong?

Share this post


Link to post
Share on other sites

Two general points:

1. Just because the view that inspection clauses are unenforceable is widespread does not mean it is correct.

2. Legally, a breach of a term of a tenancy agreement by one party does not justify a breach by the other even if felt to be justified. It is important in a tenancy (or for that matter any) dispute not to do anything which may be seen to be abandoning the moral high ground.

As to the specific point of whether inspection clauses are unenforceable, I have expressed my views in several threads and started one (which for the moment I cannot seem to find) which sets out my views in full. Since my opinion is that there are circumstances in which a right of inspection can be exercised the adjudicator's decision does not surprise me. It is precisely what I have warned tenants against.

Share this post


Link to post
Share on other sites
17 minutes ago, Damocles said:

Two general points:

1. Just because the view that inspection clauses are unenforceable is widespread does not mean it is correct.

2. Legally, a breach of a term of a tenancy agreement by one party does not justify a breach by the other even if felt to be justified. It is important in a tenancy (or for that matter any) dispute not to do anything which may be seen to be abandoning the moral high ground.

As to the specific point of whether inspection clauses are unenforceable, I have expressed my views in several threads and started one (which for the moment I cannot seem to find) which sets out my views in full. Since my opinion is that there are circumstances in which a right of inspection can be exercised the adjudicator's decision does not surprise me. It is precisely what I have warned tenants against.

Non-legal view: I don't understand what loss the landlord suffered from not being allowed inspections - surely awards shouldn't happen if there are no damages?

Also, I wouldn't rely entirely on an adjudicator for ruling that a clause is unenforceable. I don't think we've ever seen any precedent on the matter. You could always take it to court, but you might end up losing more than £500.

Share this post


Link to post
Share on other sites

The "damages" according to the landlord were that no viewings created a void period (how this can be quantified is beyond me considering the number of variables). Me quoting entitlement to "quiet enjoyment of the property" didn't wash with the adjudicator. I will have to agree with Damocles (reluctantly :o) that even though I have read widespread that my statutory rights overrule this particular tenancy clause, it is obviously no guarantee I wouldn't lose part of my deposit.

Share this post


Link to post
Share on other sites

Obviously the ruling of an adjudicator is not binding - other than of course on the parties to the adjudication. However, the decision should alert tenants to the distinct possibility that if the issue arises in a deposit adjudication the adjudicator will find against them.

Since I was never a litigator I cannot comment confidently on the question of how damages should be assessed. I think that if it had a been a court case the landlord would certainly have not been entitled to damages if he had relet immediately. If there is a void the point is that even if the tenant co-operates there is no guarantee that a new tenant will be found and a void avoided. On the other hand, if the tenant had co-operated a tenant may have been found. I think a court would have wanted a landlord to present some evidence about how long it takes on average to find a new tenant. Clearly it cannot be the case that the tenant is liable for a void however long. I have posed the qestion here: http://swarblaw.co.uk/viewtopic.php?f=7&t=7131

Share this post


Link to post
Share on other sites
On 30/1/2017 at 11:35 AM, Timster said:

Thanks, am following the thread.

Unfortunately nothing really helpful emerged from it.

Whatever the position, the decision is a reminder that tenants who refuse access for inspection by prospective tenants run the risk of being hit in the pocket.

Share this post


Link to post
Share on other sites

I know it doesn't help now, but I was in a similar position and allowed viewings but told everyone what an ahole the landlord was and all the faults with the house that he had a void anyway. Still makes me smile.

Share this post


Link to post
Share on other sites

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.

Share this post


Link to post
Share on other sites
On 25/01/2017 at 3:21 PM, Timster said:

My Deposits has just awarded 2 weeks rent because I refused viewings. I've read in so many places the clause in the tenancy agreement was unenforceable (yet the adjudicator quoted it). Basically the landlord was a complete *** so I felt morally justified. I also refused to pay the last month's rent because the landlord didn't acknowledge my notice (as stipulated in the tenancy agreement). I just feel the adjudicator was being thoroughly lazy as they basically said "the remainder of the deposit goes to the landlord to compensate them for potential loss of earnings, I cannot adjudicate any further". Any advice from experienced members?

It's easy to take things on the internet literally.  In many ways, you've been proved right.  Your LL was unable to enforce viewings on you.  However, if you flat out refused viewings, then you were in breach of contract, and always at risk of losing a claim against you.  

An AST contract has some conflicting elements.  In this instance the tenant's right to to be left in peace conflicts with the contractual agreement to allow the LL to show the property to future tenants.  In future, remember there is a game to be played.  It is important to be reasonable, that is not the same as being acquiescent.  

The smart move is not to flat out refuse viewings, but make options for viewings practically useless to your LL.  For instance, it's reasonable that you are at home when your LL shows somebody around your home.  It's reasonable that you get a decent amount of notice.  

In practice, it is reasonable if you stipulate 2 or 3 small time windows in the week when you will endeavour to be at home.  They don't have to be at times convenient to your LL or their prospective tenants, only times convenient to you.  It's reasonable to ask your LL to give you 48 hours notice if he intends to use them.  Do everything by email, so there is a paper trail.

If you have been reasonable within the terms of your contract, then any adjudicator will struggle to find against you.

Share this post


Link to post
Share on other sites
On 6/5/2017 at 10:31 AM, lastlaugh said:

It's easy to take things on the internet literally

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.

On 6/5/2017 at 10:31 AM, lastlaugh said:

In many ways, you've been proved right.  Your LL was unable to enforce viewings on you.

Not exactly. Potentially (at least according to the adjudicator) the right could have been enforced.

On 6/5/2017 at 10:31 AM, lastlaugh said:

 It is important to be reasonable, that is not the same as being acquiescent.  

Absolutely!

On 6/5/2017 at 10:31 AM, lastlaugh said:

The smart move is not to flat out refuse viewings, but make options for viewings practically useless to your LL.

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.

Share this post


Link to post
Share on other sites
7 hours ago, Damocles said:

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.

Well, you lifted my quote out of context.  That's not helpful either.  And it's not helpful simply stating how wide the parameters are, without giving forum users any help with navigating them.

And quite reasonable proposals can still be of little value to your landlord.  Your landlord doesn't care if you are there, they want show prospective tenants round your home if and when it suits them, and they don't want to give you any notice.  Those are the parameters they value.  For the record, and at the risk of repeating myself, asking to be present when your landlord introduces untraceable strangers into your home and insisting on some degree of notice conforms with normal civilised behaviour.  These two things alone would make a landlord's life difficult.  

You are right that this issue is untested, but I'm confident no judge would expect a tenant to take leave from work to facilitate a landlord.  So either your landlord fits in around you to some extent, or they come round whenever they feel like it even when you are not there.  If you don't want them to come around whenever they feel like it, it's my advice to be proactive and start the negotiation by telling them about times when they can definitely come round.  At the very least, you will come across better in a future dispute than if you had simply issued a blanket refusal.

Share this post


Link to post
Share on other sites

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.

Share this post


Link to post
Share on other sites

If the EA is going to bring  unknown persons into your house, have you thought of asking for the risk assessment ( Health and Safety), the name and address of the persons and what steps the EA has taken to verify these. Also ask the LL for an undertaking to refund any items which are stolen or damaged as a result of the visit. If you have children, ask whether  the EA and the persons he will be bringing been CRB checked.

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Recently Browsing   0 members

    No registered users viewing this page.

  • The Prime Minister stated that there were three Brexit options available to the UK:   100 members have voted

    1. 1. Which of the Prime Minister's options would you choose?


      • Leave with the negotiated deal
      • Remain
      • Leave with no deal

    Please sign in or register to vote in this poll. View topic


×

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.