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  • Buy-to-Let

    Tenant threatening to break AST break clause

    **UPDATE**

    As an update on Fri. we just assigned the management to the agent and will await the outcome where they will assist in the finalising the T&C for finishing the AST as per terms.

    **End Update**

    The current tenants(couple) have been in the flat since Sep 18.  They reported a number of issues which were dealt promptly.

    Then early this month they reported mould build up in one corner.  When I went to asses the issue I found condensation was to blame.  Then found out the tenants do not follow the basic steps to control or minimise the condensation build up to the state it causes mould.  Some of them are.. not opening the heating and sleeping in bed with electric blanket, drying clothes with dryer. I wanted to get the mould treated so offered to do so but I couldn't enter the property, once the wife was ill so couldn't get away from the flat, the other day I was denied because it rained.

    To cut the story short this week I wanted to employ someone to treat the mould this week but by Tue. 27th, the tenant decided they wanted to break the 6mth+2mth break clause and asking to not only pay them the remaining period back but also the agents fees.

    We denied this and asked to allow us in to get the mould treated.

    Husband has now decided to get his bosses Lawyer to advice them, don't know what the lawyer specialises in but I do hope he will give them sound advice telling them to allow us in as a first step.

    As an extra testimony the agent has emailed me saying that tenant told them I am good landlord and deal with issues promptly.  The tenant has also emailed me with that statement.

    In the mean time any advice from you would be helpful.

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    You have a contract that governs the arrangement. That should be it. Are they allowed to break early? No. But you said they are exercising it so that is in line with the contract.

    For them to claim some form of damages they need to prove loss. There is no loss other than deposit for non-payment of the period of rent (as they wont pay).

    So can they go after you for some other reason? The only ones I can think of (and I am not a lawyer) are unfair contract terms but I don't this would stand up in court if they had legal advice or its a standard AST. The other one would be health and safety. If you dealt with issues promptly and had all the paperwork in order (gas certs, etc) I think it is hard to prove you breached this. They are responsible for how they live in the property not you but the flat has to be safe. I have a one bed flat and let it to a young family and drying baby clothes all day long caused mould. I advised them to open windows/vents, treated the mould and put in a dehumidifier. I suspect that as landlord you would have ensure property was safe to occupy but that you can charge the tenant for additional costs caused by them in doing so.

    Of course this assumes you registered the deposit or you cannot enforce the lease.

    Your agent should advise you. Personally these things go away when the lawyer requests payment in advance - it focuses the mind!

    Best of luck!

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    Tax advisor and mortgage broker

    stuart@johnsonsca.com

    02039077022

    Given the prevalence of condensation/mould - maybe ASTs should have additional section flagging causes and remedies - which prospective tenants then sign and agree to.

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    I never understood why rental properties tend to suffer from condensation far worse than owner-occupier properties.

    A few years ago I had a tenant with a young child. She called me to say the property was 'riddled with damp'.

    On inspection, it turned out to be a tiny bit of mold caused by the tenant pushing a fabric sofa tight against an outside wall and never opening any windows whilst drying clothes on all the radiators. Once I explain to her what was happening the problem went away! I should point out that this was a relatively new build property.

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    Had same thing Dom - attending at lunchtime to look at mould in bathroom - to find tenant is boiling monster saucepan of potatoes on hob with no lid - steam going everywhere. Tenant insisted that she and mother had tried everything to get rid of mould - every thing except a smidgeon of common sense!

    Another tenant doing 2/3 loads of washing on a Friday and leaving dripping items on every available hanging place while away for weekend (ie almost every weekend) and voila place looks like it has been sprayed with slurry.

    There is another related issue for low income tenants who are angling to get social housing - and who are cute enough to see that they get more priority if there is an acute medical issue around their current housing - and in practice with one tenant "the mould is bad for my asthma - but I cannot stop chain smoking cos it's a habit I am stuck with"!!!!

    In 99.9% of cases the issue effectively needs a reinstall of OS in brain...

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    Hi All,

    Thanks for your responses.

    I forgot to add the 6mth Br. clause also included the 6mth advance payment of this 3mths is remaining.

    Yes I agree mould is HHSRS issue.  I never backed from resolving the issue.  After finding out the issue was their life style that is causing more condensation build up.  

    Just like you I tried to resolve it quickly, within a week of them reporting it but I couldn't, including already purchasing the de-humidifier. But these guys are on fuel-poverty from their own submission, operating a De-Hum is cost too many


    I tried to advice them and their response was it is not their fault. And yes I have pointed out the T&C in the AST which is extensive on all part written.

    I know from observing that it is also circulation issue so I already had decided that I will install a vent in the wood frame windows there are.

    I had already talked to the agent. BTW I am managing not the agent. They still are approachable hence sending me the email.

    I think the bosses Lawyer will give them free first advice. Yes you are right they might back off after the price is revealed, knowing their fuel use budget they are under.

    "why rental properties tend to suffer from condensation"

    It maybe because some tenants don't regard this as their home and take us for MUG.

    I have had the same Studio flat on rent since 2011 and only had mould problem this year.

    They must be washing humungous amount and not closing the lid while cooking.


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    Your email is not entirely clear. You are suggesting the tenants want to exercise their break clause. If there is one in the agreement then they can use it but they must comply with its terms. If there is no such clause then they cannot and they will have to stay to the end of the fixed term. If they want to leave early then they will have to agree with you how that happens. In this case you can charge them your costs and expenses. If they just walk away then you will have to decide what to do. You can leave the property empty and then sue for each month's rent as it falls due or take back the property promptly and then look to take some of your costs from their deposit while you re-let. But if you take back the property then you cannot claim for rent after you take it over.

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    David Smith
    Landlord & Tenant Solicitor
    Anthony Gold Solicitors

    Find me on LinkedIn: uk.linkedin.com/in/dsnsmith

    All opinions are my own and do not reflect those of my firm. No comment made should be taken as legal advice and you should consult a solicitor or other legal professional for advice on your specific situation.

    Hi David,

    Thank you for your advice.

    Sorry I should have expanded on my statement.

    This is studio flat with a kitchen in the same room,

    There is a 12month AST with 6 months break clause in the contract and they have paid 6 months rent in advance.   After the 6 months the tenants have to give 2 months notice period to leave.  They have been there for 3 months now as they moved in the beginning of September.   They are now asking for the remaining 3 months rent back in addition to the agents fees they paid to the letting agent. The DPS protects tenants deposit so that part is safe.  Also the agent assures us the rest is up to date  - like GSC, EPC etc. We did the inventory check in as well.

    The tenant reported the mould problem earlier this month.  Within a week I assessed the mould and wanted to deal with the issue but I was denied the opportunity to do so.  I made an appointment to go to the property but as his wife was ill I could not go ahead with the mould treatment as she could not leave the property.  At that point there was only one corner in the flat that had mould.  When I assessed it on that day I advised them verbally how to control the condensation (the do's and dont's). They admitted that they do not open the central heating to save on bills and they use an electric blanket in the bed instead. They dry clothes by using a hair dryer in the room and not in the bathroom as suggested on some websites who advise against condensation.  Cooking in the studio flat also generates steam. I tried once more  to go to the property via an arranged appointment with them when on the same day the husband asked me not to come as it was raining. Since then I have sent emails to say I will get a professional to apply the mould treatment and asked for a date to attend. Suddenly the tenants just said we don't want to live here as it is affecting our health and asked for a refund as above and also threatened to stay in a hotel.  I sent a final email yesterday pointing out the attempts I had made and ended again by asking when i could attend with the professional and the reply I got via text is they have seen the email and the husband will talk to his boss's lawyer.

    I also observed last week that there is a circulation problem so I decided to get a vent installed in the window (the flat has single glazed window with wooden frame ) and have already purchased a dehumidifier.  They totally deny any responsibility.

    My hunch is that they have found another property to live in and just want to leave.

    My question is if I have made all the attempts that I have without success and they decide to leave will I be okay as long as I have all the correspondence in writing? In this circumstance it must be seen as unreasonable to ask for a refund?

    Also if they decide to abandon the property and chase me for a refund as well as hotel costs I surely can't be liable in these circumstances?

    I haven't had such an issue before and am just highly confused why they would tell the agent and myself what a good landlord I have been by fixing issues straight away and now just wanting to leave and all in the space of 3 months of moving in.

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    Unfortunately this is something close to my heart due to previous problems I had with a very difficult tenant whose best friend was a housing litigation solicitor!  You have got a problem under HHSRS and case law suggests you have a potential liability if you have not done something to address the problem.  In short, you need to show that you have taken the problem seriously and tried to do something about it.  From experience, my advice would be:

    1.  Document EVERYTHING and send to the tenant by email or recorded delivery, not phone calls or notes through the door.

    2.  State clearly that you have tried to address the problem but have been refused access by the tenant, giving times of appointments they have failed to meet.  If arranging future visits ideally give 7 days notice (not 2 days as some people say) and offer alternative dates / timings to the tenant to allow them to choose convenient times.

    3.  Go with the tradesman or have someone with you as witness to the event.

    4.  Give the tenant advice sheets on condensation control to allow them to take remedial action themselves and to address the issue if possible (both the NLA and ARLA have great worksheets you can email over).

    5.  Once you have gained access complete the works promptly and get the tenant to sign the job completion sheet to say they are happy with the result.

    6.  If the tenant refuses access then remind them of their obligations under the lease to act in a tenant like manner (similar clauses in most ast's).  If they have left, then the matter is closed, except for the small issue of liability on either side.

    7.  If you have acted reasonably and in good faith then you have no problem- but you must be able to prove you have done so.  If you have not acted to remediate the problem you may have an issue under HHSRS and a liability to compensate them for the POTENTIAL health problems that may suffer / have suffered. 

    If the latter, my recommendation would be to pay them the money they ask for now as any court action will cost you a lot more than 6 months rent and some agency fees - something I learnt to my own cost when defending a claim of this type.

    I won't bore you with the extended details but in my own case we believed we had a watertight defence to the very dodgy tenant's spurious claim.  Despite this we did not get the case thrown out at the first County Court hearing and the thing was escalated to a full court hearing, with case management conference (CMC) before this.  As the tenant was on benefits and had a solicitor friend acting for her, having somehow played the system to get legal aid for their claim, we folded at the CMC stage when presented with a potential bill of £22,000 legal fees to take it forward.  We were 99% sure of winning the case but would get no money from the tenant as they would declare bankrupt leaving us to pay the costs. 

    Be aware, the system is heavily skewed towards protecting the tenant's "rights".  Get your paperwork watertight (and keep all records for at least 3 years) and you will be OK.  Get it wrong and be prepared to pay.

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    Andrew McCausland

    Managing Director Hamilton Square Estates Ltd

    Proprietor Wirral Property Group

    Sourcing and renovating investment property since 1994

    Hi Andrew,

    Thank you for your input.  More than what I anticipated.  I have already done the LL Accreditation and HMO where they mentioned about HHSRS and they mentioned the 28 odd different types of points that could be possible tick and each cross will land around £30k.  This will wipe any large investor LL like yourself, let alone someone like me with only one Studio flat.

    My side to this scenario is I have been proactive in resolving the issue. The reason it has taken more than three weeks to come to this is them denying access to us.  I have rented it since 2011 never an issue until this year suddenly.

    But you are right the system goes with the tenants rights.

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    From the tenants' side it seems confusing that they had access to cash to cover 6 months rent plus agency fees - yet imply they are in fuel poverty by refusing to use heating.

    With 2 adults in situ and no kids I assume both are working full time - hence even on min wage would have plenty of spare cash to cover heating and other bills?

    The studio itself has single glazing so that needs updating to D/G - as well as a humidistat fan installed in main room to automatically get rid of excess moisture to outside atmosphere.

    Those fans cost almost nil to operate as they only switch on as long as needed to expel excess humid air. Tenants however will routinely switch off such fans as they are usually unwilling in winter months to have their expensive warm air hoovered up and expelled to atmosphere.

    By the sound of it any tenants in your studio should never be drying washing indoors but should be using launderette with dryer facility - as I assume there is no outside drying space.

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