ThisIsMoney.co.uk Interviews Landlord and Tenant Lawyer Nollienne Alparaque who Reveals There are 29 Uninhabitable Property Factors
Recently the head of our landlord and tenant team at OTS Solicitors was interviewed by ThisIsMoney.co.uk.
In this article, Nollienne Alparaque talks about the experience of working with ThisIsMoney.co.uk and explains how she helps tenants and landlords with housing repair disputes and where a tenant has threatened or is withholding rent.
Online and London Landlord and Tenant Solicitors
For landlord and tenant legal advice call the experts at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Thisismoney.co.uk
Nollienne Alparaque says:
‘’ I was delighted to be asked to comment on a ThisIsMoney reader’s request for help and to feature in the Thisismoney.co.uk article. At OTS Solicitors we receive this sort of landlord and tenant inquiry all the time so it was great to assist in answering a similar query that will reach out to ‘Generation Rent’ as well as to professional and accidental landlords.
‘’Our landlord and tenant clients want answers when they ask a question, even when the question is rather technical or there is no easy answer. Answering landlord and tenant queries can sometimes be hard as the law is not always clear-cut. I always do my best to explain how landlord and tenant law will apply and then try and come up with a pragmatic solution. That’s because it is often uneconomical to rush off to court over a disrepair claim.’’
Thisismoney.co.uk reader question
The Thisismoney.co.uk reader question was about a tenant withholding rent from their landlord. You would say the answer is no, a tenant cannot withhold rent but the question must be put into context.
The reader’s question in full was:
‘’A few weeks before I moved into my new flat, the tenant there told me that there had been a fire in the shop below and the front door had been smashed in by the fire brigade.
We were told by the estate agent that it would be sorted by the time we moved. Lo and behold, on move in day, we had a piece of plywood covering the hole and two padlocks.
The landlord says he is waiting to hear from the block management team on what to do or pay out for insurance.
It's unclear at this point but in the meantime, we've had to live with a huge draught. It invalidates all of our home insurance and I feel incredibly unsafe.
The estate agent and landlord are dragging their feet and I am fed up.
I've not even been in the new flat a month and I really love the space and have no plans of moving. What rights do I have? Can I withhold rent?’’
Thisismoney.co.uk answer
Ed Magnus of ThisIsMoney gave a robust reply emphasising how unacceptable it was to leave the tenant and their belongings at risk and how the landlord, letting agent and block management were all hoping someone else would sort the problem out.
Straight away Nollienne Alparaque agreed with Ed Magnus as he rightly said the tenant was the innocent party in all of this as they had rented the property in the belief it would be safe and secure, with an operating and secure front door.
Sometimes people forget to look at the wider picture and get tied up in the legalities. The landlord did not think the replacement front door should be paid for by him. The landlord may be right. He might be able to get the block management to pay for the door or the insurance company. However, in the meantime, his tenant is living in a property that is not habitable as it is not secure. The tenant is extremely vulnerable to burglary or worse. How would you feel if the tenant was your son or daughter? You would be up in arms and telling them to book into a hotel until the door was fixed.
Many tenants would want to leave but this tenant just wanted the door fixed and wanted to know if they could withhold their rent until it was sorted out. The frustrating thing here is that the tenant should never been put in this position as ideally, a letting agent should tell a landlord that they need urgent landlord and tenant legal advice if they are not willing to stump up the cash for a new door and argue the point later with the management company or insurer. That’s because it isn’t just the tenant at risk in this situation – the landlord and the letting agent's reputations are on the line.
Take urgent landlord and tenant legal advice
This was a situation where both the landlord and the tenant needed urgent legal advice. The tenant had been in the property for a month without a secure front door and it should never have got to the position that they were contemplating withholding rent from their landlord in the hope this would prompt the landlord to replace the door.
If the tenant had consulted OTS Solicitors as soon as they moved in and discovered the absence of a proper door, we would have fired off a letter before action explaining the tenant’s rights, the breach of the tenancy agreement on the part of the landlord, the action required and the consequences of non-compliance.
Most landlords or letting agents presented with this type of prompt action realise that they cannot leave the tenant to ‘carry the can’ until the problem is fixed.
Sometimes a tenant will be reluctant to engage a Landlord and Tenant Solicitor to understand their disrepair legal rights and to get action. That’s understandable as they may be worried that the landlord may not agree to renew the agreement at the end of the tenancy agreement or might put up the rent or start a no-fault eviction once the initial tenancy period is ended - all because the tenant is labelled a ‘nuisance’ for asking for basic repairs. It is frustrating that some tenants can feel so powerless, as in this case, where the tenant loved the property and wanted to stay, albeit with a front door.
Check the tenancy agreement
The first thing to do is to check the wording of the tenancy agreement. Does it allow the tenant to withhold rent if they think the landlord has breached the tenancy agreement? Most agreements do not do so for obvious reasons. If they did unscrupulous tenants would be withholding rent for disputed disrepair claims.
The tenancy agreement may say that rent is not payable if the property is not fit for human habitation. The next question is what does that mean? The law on this point is covered by the Fitness for Human Habitation Act 2018.
The statute says 29 things could render a property unhabitable. Unsurprisingly, entry by intruders is on the list and not having a secure front door seems to fall within the 29.
The non-legal route
In this scenario, the tenant could approach the environmental health department at their local authority to get the council to force the landlord to act to replace the door. Whilst the council is under a duty to act there are no guarantees that they will do so quickly. If the council does get involved without delay then they will impose a deadline on the landlord to replace the door. Failure to abide by the deadline could result in council enforcement action.
Tenant compensation
Either council action or the threat of a housing claim could result in compensation for the tenant. After all, why should the tenant pay the full rent when the property is insecure and therefore uninhabitable? However, not paying the rent by withholding it is not the way forward unless the tenancy agreement gives the tenant the right to do this.
A tenant housing repair claim by Landlord and Tenant Solicitors could result in the court ordering compensation as well as ordering repairs to the property. When assessing compensation, the court will consider factors such as:
- The perceived harm to the tenant
- How long the problem went on for
- How serious the problem was
In addition to compensation, the landlord could be ordered to pay the tenant’s costs associated with their claim.
If the local authority gets involved and serves an improvement notice that the landlord does not comply with then a landlord can be fined up to £30,000 without having to apply to court. In addition, in worst-case scenarios, a landlord could face a banning order.
At OTS Solicitors our Landlord and Tenant Solicitors look at the best way to resolve a deposit dispute as efficiently and as swiftly as possible.
How OTS Solicitors can help you
At OTS Solicitors our landlord and tenant team can answer your questions and help you with:
- Disrepair disputes
- Landlord and tenant disputes
- Deposit disputes
- Non-payment of rent and withholding
- Section 8 notices for rent arrears
- Section 21 notices
- Possession proceedings
- Eviction orders
- Harassment claims by tenants
- Tenancy agreement advice so you understand the landlord and tenant obligations
- Advice on fixed-term and rolling tenancies
Online and London Landlord and Tenant Solicitors
For landlord and tenant legal advice call the experts at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
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