UK Landlord Forum / Life

I have encountered an odd situation - my tenants moved out almost 2 months ago - they exercised a six month break clause and left on their terms. Two weeks after they left, they emailed me to say that they enjoyed living in the flat, and especially so after having their child. I subsequently returned the deposit with no dispute after having to make a small deduction for some works...And all of a sudden, yesterday, they email me asking for a retrospective rent reduction because the lift in the block was broken during the last six months of their tenancy, and if I don't pay them, they want to take me to court!

The lift is the original lift from 1928 and is now being replaced by the buildings' management agent and none of the flat owner have control of repairs, etc. The flat is a Victorian period flat that is prone to wear and tear, and a one month outage is a reasonable period, but the flat is on the second floor and there is a very wide, well lit stairwell that encircles the lift shaft that all the residents now use. And in the 2 years and 11 months they (under 3 separate 1 yr ASTs with a 6-month break clause) have lived there, the lift has had problems, but they never alerted me to it or had stated problems effecting them in any three of the ASTs. Also, it's almost 100 years old and since it had had outages in the past, why did they keep renewing?

There is nothing in the AST contract that mentions a working lift as being contingent on the payment of the agreed rent. And to give my tenants flexibility, I put in a six month break so when the lift broke, it was in the latter period when they could have exercised the break clause and I would have happily waived the notice period so they would only have had to suffer a month at most with no lift.

What I find strange is that they never flagged to me during the tenancy that they wanted a rent reduction - under any of the 3 ASTs. Can anyone advise me on what my exposure is here? Should I ignore the email?

Did they give you notice that the lift was broken? Did you know anyway by some other means?

Paying the rent means the rent is agreed. Otherwise you'd state "paid under protest" or something like that. Seems like someone trying it on. I'd probably not ignore it, I'd prefer to disabuse them of this notion before receiving anything to do with Court.

I would send them a sharp response,laying out the points you make.Furthermore,if they even had a case,would it not be against the owners of the block?

Quote from: heavykarma on September 01, 2018, 04:10:31 PM
Furthermore,if they even had a case,would it not be against the owners of the block?

No, it'll be against the immediate landlord for disrepair IF there is even a case.

Evidently thy're not fans of The Big Bang Theory!

Even if they have a case, which I doubt, how much did they lose out by having to walk up a couple of flights of stairs once or twice a day? (I live in a three storey house and I do it all the time, mainly because I keep forgetting what I came upstairs for.) Admittedly, may have been a bit inconvenient if they had a perambulator but, that aside, I dare say they benefited overall from the additional exercise.

Thank you all for the feedback.

I will write back to them in the next week or two once I get the verified dates from the management company.i

Just purely from being nosey, have they proposed a % or £ amount?

They claim that over the three 1 year AST's, the lift was broken for 12 months, but have not kept a diary of dates and would like 10% for 12 months. This is totally absurd considering that the final AST they didn't see to completion as they stayed 11 months. And if they were so upset with the lift outages in the previous 2 years, they should not have signed a further two ASTs.

It also turns out that they want to charge me for the additional cost of moving as they claim that the movers charged them more for having to use the stairs. Again, this is nonsense as the lift is a passenger lift; not a goods lift, as per the rules of the building. So had they used the lift to move large, heavy pieces of furniture that the passenger lift is not deigned to haul, they would have breached the rules of the building and thereby would be in breach of contract with me. I see this as an admission that they have misused the passenger lift in the past to bring up heavy items so their actions could have been a direct and contributing factor to the accelerated demise of the lift, and it breaking it in the first place.

Quote from: Pori78 on September 02, 2018, 02:21:29 PM
It's important to note that the tenants could have exercised the break clause from mid-December onwards and they would have been out by mid-Feb, and I would have waived the full two months it so they could have been out by mid-Jan!

That's irrelevant as far as liability. The landlord have an implied duty "to keep in repair the structure and exterior of the dwelling-house". The standard of repair is to be determined having regard "to the age, character and prospective life of the dwelling-house and the locality in which it is situated".

A landlord has a reasonable time to effect repairs. That you have no control of repair since it's in a common part for which you are not in possession make things more complicated, but it does help in that it's necessary for the tenant to give notice of the disrepair.

You're probably okay. Old lift, expect to break down now and then. No notice of breakage until February 2018 when you found out at an EGM where discussion and plans were made by management company to replace. You may be liable for a small amount of damage for disrepair towards the end that the lift were still dead after a few months, but I certainly wouldn't be accepting what they are suggesting.

Re.Simon's comments-maybe you could put in a counter claim,charging for the "personal trainer" who gave then a daily workout.Seriously,I thought I had heard everything.This is just too absurd.Tempting to say don't even dignify this nonsense with a response,but maybe just to get it off your chest.

Purely out of interest (I don't do flats), does anyone know what the law says about common areas, and lifts in particular? I dare say there's some dusty old precedent in the case law somewhere.

Quote from: Simon Pambin on September 03, 2018, 08:54:30 AM
Purely out of interest (I don't do flats), does anyone know what the law says about common areas, and lifts in particular? I dare say there's some dusty old precedent in the case law somewhere.

The repairing obligations still apply, from s11(1A) of the Landlord and Tenant Act 1985.

If the landlord is in possession of the common areas, then the obligations apply without notice. The disrepair is something the landlord should know about without having been told. If they're not in possession, but merely have an interest, such as a leaseholder letting out a flat in a block that's managed by freeholder, then the tenant need to give notice. Not so dusty, see Edward v Kumarasamy in the Supreme Court from 2016.

If the disrepair is something the landlord does not have rights to directly repair (i.e. the single flat owner in block), then "it shall be a defence for the lessor to prove that he used all reasonable endeavours to obtain, but was unable to obtain, such rights as would be adequate to enable him to carry out the works or repairs."

Thanks for that. It seems pretty clear that the landlord is not liable for a defect of which he had not been made aware - and I should think so too!

Is there a case confirming that a lift is part of the "structure and exterior of the dwelling-house" or is that dependent on the rights granted in the head-lease and/or sub-lease?

It also reminds me why I don't do flats. 

Lifts are definitely part of a landlord's repairing obligations, whether that be directly from the 1985 Act as amended, or older common law (Liverpool City Council v Irwin [1976] UKHL 1 et al.) on the basis that it's part of the common area that are essential for use by the tenants for the enjoyment of the demised property. Rationale along the line of stairs/lifts being essential for the lessee to get to and from the property, if you let the place out it would be implied into the agreement that the tenant can actually enjoy the property they're renting by being able to get to and from the place.

As far as the 1985 Act, I think that lifts would be caught by (1B), so a landlord wouldn't be able to contract out the obligations.

QuoteNothing in subsection (1A) shall be construed as requiring the lessor to carry out any works or repairs unless the disrepair (or failure to maintain in working order) is such as to affect the lessee's enjoyment of the dwelling-house or of any common parts, as defined in section 60(1) of the Landlord and Tenant Act, which the lessee, as such, is entitled to use.

I own an apartment, which I now let out - I used to live in it. It is modern and has 2 lifts. It wasn't even unknown for both lifts to be out of action. It happened to me twice - it happened more but the two times were just chance when I happened to want to use them. I had to ascend 26 flights of stairs - it nearly killed me the first time. The second time I waited in the lobby for 45 minutes, first... then decided to start. When I got to floor 10 the Concierge shouted up the stairwell to me - "Hippo, they're back on..." - so I darted out and was thankful.

It also reminds me why I don't do flats (but I do, damn!). The was uproar with the Management Company because they had thought as there was 2 lifts the service level agreement they could have with the Kona repair folk could be reduced. Also, the experiences with lifts enabled the sinking fund to be properly bolstered for the future when you can see they'll need replacing. Even something like this doesn't seem to be designed with an expected lifetime that's measured in many decades... the lift referred to in this post has probably served its time very, very well. Hopefully it gets some TLC.

Thanks KTC, Simon, this has clarified a great deal.

The management agent has confirmed that it's reasonable for a 90+ year old lift to the out of service for 2 months as all the replacement parts get fabricated in Holland.

I went through all the correspondence I have from them (emails and texts), and in the 2 years and 11 months on 3 separate AST contracts: not once did the ex-tenants notify me of disrepair, ask for a rent reduction or pay a rent installment "in protest".

Quote from: Pori78 on September 06, 2018, 04:27:18 PM
They're asking 10% retrospective reduction, what would be a reasonable offer? 5%, 3%, 2%?

Nothing. Reply stating that they never mentioned anything was wrong during the tenancy, that they clearly didn't suffer any inconvenience since you have their email saying they "enjoyed living in the flat" etc.

Wait and see what if any their response to that is.

Quote from: Pori78 on September 06, 2018, 04:27:18 PMThe management agent has confirmed that it's reasonable for a 90+ year old lift to the out of service for 2 months as all the replacement parts get fabricated in Holland.

We all need to be careful with statements that include "reasonable" as a form of justification.

Because - if your Managing Agents believe it's reasonable for a 90 year old lift to suffer a 2 month outage because the replacement parts are fabricated in Holland, then it's perfectly reasonable (sic) for a paying Tenant (who possibly selected that property because of its lift) to reasonably have an expectation that it's reasonable (as the Managing Agent clearly knows the lift is 90 years old and clearly knows the replacement parts are fabricated in Holland) for certain selected spare parts to be held, ready for quick replacement when it fails.

Reasonable from one side can be unreasonable from another. You shouldn't depend solely on the point of view that supports yours. However, I certainly agree that 0% is a fair level of compensation for the scenario described. It just feels reasonable.

To me this does smack of tenants wanting all the rights with none of the responsibilities. Either that or they are trying it on.

I agree with KTC - knock back and stand your ground. I see nothing unreasonable in your actions.

They made no complaint while living there,suffered no injury due to climbing the stairs-indeed got a good aerobic workout-and said they had loved their time there.2 flights of stairs-what wimps.Why on earth would you consider giving them even the time of day? If you do cave in,please don't post about it on here,I might burst a blood vessel in my brain. 

Quote from: heavykarma on September 07, 2018, 09:00:47 AM
They made no complaint while living there,suffered no injury due to climbing the stairs-indeed got a good aerobic workout-and said they had loved their time there.2 flights of stairs-what wimps.Why on earth would you consider giving them even the time of day? If you do cave in,please don't post about it on here,I might burst a blood vessel in my brain.

I'm not caving in, but I am nipping this in the bud before I get a court summons or something.

If I were you, I'd reply as KTC has suggested. Their case is very weak and it'll cost them if they decide to go legal. If you write back rejecting their claim they'll either

a) Accept it, in which case you're sorted.

b) Try again, in which case you can either stick with your position or offer them £50 to bog off and never bother you again.

c) Start a claim via the Small Claims procedure, in which case you can either pay up in full at that point, admit a part of the claim, or dispute it and have your day in court if they don't back down at that point.

The update is that ex-tenants have come back and admitted that they never alerted me to a single lift outage, ever. But they have now said that they are "open to negotiation", but I'm sticking to my guns as this is just ridiculous.

The contract states that it is the responsibility of the tenant to alert me to disrepair of the fixtures, fitting, pipes, etc at the premises, so by not alerting me to the common part, are they in breach of contract? Alternatively, does anyone know whether the tenants would be in breach of the housing act by not disclosing to me disrepair of the common part to me?

The landlord cannot contract out their obligations on disrepair under the 1985 Act unless a court agrees in advance. So, whatever the contract says about their need to alert you of disrepair, once you became aware of it at the EGM, the obligation came in. Obviously see previous posts about regards to age, character and prospective life etc. The Act doesn't impose any obligations on the tenant, it's solely obligations on the landlord, which may not apply depending on the action of the tenant but that's it.

Now assuming that the contractual obligations on them to alert you to disrepair is enforceable, any compensation you would be entitle to would relate solely to any damages you suffered due to the breach of contract. As far as I can tell, you haven't suffered any damages from not knowing that the lift was broken. So, no damages, no compensation for any breach.

Just stick to you didn't tell me, no inconvenience suffered etc. and see what happens.