UK Landlord Forum / Life

Dear All,

I am having an issue with one of my tenants and I need some advice on that.

I have let my 5-bedroom HMO to student tenants for 11 months from 01 September 2015 to 31 July 2016. Since it is a single AST agreement, all the tenants are collectively responsible to pay the monthly rent, although they have evenly divided the monthly rent among themselves and pay it via 5 different standing orders every month. They have already paid their 10 months' rent, while the final month's rent is due on 1st of July 2016.

For day to day communication with the tenants for any issues and concerns on either side I have established a watsapp group and have included all the 5 tenants in it.

The house in question also has a basement which is inhabitable at the moment due to excessive condensation and mould, therefore I keep it locked so it remains inaccessible for the tenants. In March 2016 I contemplated upon the idea of doing some refurbishment work in the basement to make it habitable via damp proofing, installing a new staircase and an additional shower room. After taking quotation for the work from the builder, I approached the tenants through watsapp messaging to seek their permission to allow the refurbishment work while they are in the property. All of them unanimously gave me the permission to allow the work to happen in June 2016. Based on this consent I engaged the builder and booked him to start the work from Week Starting 20th of June. There were no further communications with the tenants after that.

Since the work is due to start from next week, yesterday I again communicated with the tenants on wattsapp group to remind them about the work and to give them the heads up for forthcoming works. After sending that message I received a phone call from the father (also the guarantor) of one of the tenants named J (name changed). He said that his son is currently not living in the property as he dropped off from the University months ago and since then he has been paying rent on behalf of his son only to fulfill the tenancy agreement. He further asserted that he will not allow the refurbishment unless I forgo his son's part of final month's (July) rent (£325). I explained to him that contractually his son along with the other tenants are collectively bound to pay the monthly rent for 11 months and his son along with his other housemates already gave me the permission in watsapp messages to carry out the work in June before the end of tenancy. I also assured him that since the work will be done in the basement there will be minimal disruption in rest of the house. In response to that he rejected the watsapp communication as a binding agreement by asserting that his son is not mature enough to see the underlying issue of disruption in the house as the builders will be accessing the house through a single entrance and if I carry out the work I'll be in breach of the c

As J is not even living in the property it is quite clear now that his Father is trying to avoid paying the rent and making the refurbishment an excuse for doing so. I have checked with my builders to see if the work can be postponed until August for which the answer was negative due to their other commitments.

With above in perspective my questions to you are as follow.

1. In my view I needed permission from the tenant not his Father (who is his guarantor) and therefore father shouldn't be speaking on his son's behalf. His Father cannot disregard the permission that his granted and the commitment he made. Is that correct?
2. If I carry out the refurbishment work and J doesn't pay his part of the rent as mentioned by his father, can I or should I deduct it from the holding deposit at the end of the tenancy?
3. Would the tenancy deposit agency allow me to deduct the deposit based upon the above described illustrations?
4. If I take the issue to the court, would watsapp messaging will be regarded as a plausible evidence to defend my position in the eyes of court?

Any suggestion over and top of the answers to the above questions will be appreciated.

Regards
Kam

You are correct that your contract is with the students who, as adults, are able to make their own legally binding decisions. A tenancy agreement would not normally require that guarantors are consulted on any variations. However, a court will look at the relative power of the parties to an agreement. Were the tenants fully briefed on the nature and extent of the works involved, and how easy would it have been for them to say no, without adverse consequences?

This building work sounds like it could be pretty disruptive and will certainly compromise your tenants' right to quiet enjoyment. What recompense did you offer your tenants to persuade them to agree to this disruption, or did you simply appeal to their better nature to help you out? (If it's the latter, then you're hardly acting in good faith by insisting on the letter of the law in this matter!)

It does sound a bit like you're trying to have your cake and eat it by expecting the full rent whilst simultaneously spending the final five weeks knocking seven bells out of the basement. I honestly have no idea what the courts would make of a material variation in the tenancy agreement arranged via Whatsapp, but I dare say it might be expensive finding out.

Dear Simon,

Many thanks for your thoughts.

I asked their permission by sending following message via watsapp.

Dear All,
I understand that there is excessive mould accumulating in the bathroom due to extreme condensation. This is understandable considering the fact that 5 people use that bathroom in daily basis causing it to be over utilised. I have a solution to this problem that I wanted to share with you all and get your views on it. I am considering installing an additional shower room in the basement, just so that it can give some relief to the main bathroom. This will involve installing a proper staircase to the cellar to make it safe and accessible.  Off Course there will be a slight inconvenience while the works will be carried out.   If it takes roughly 2-3 weeks to finish off the job, would it be acceptable to all of you while you are in the accommodation?
Please do let me know what you think.
Regards
Landlord

In response to this question they all said yes, as long as the work commences after their exams in June. I thanked them and there was no further communication on this topic as the permission was obtained without any argument or haggling. I then paid a deposit to the builder to start the work in the last week of June. If they at that time resisted or expressed any concerns I would have waited until the end of tenancy and would have lined up the builders to start the work in August.

Another notable point here is that out of 5 tenants there is only one in the house at the moment who has no objection against the work. The person whose father is opposing hasn't been living in the property for the last 6 months as he was dropped out of the university. J's father is asking me to either cancel/postpone the work or forgo the last month rent for his son. If I accept the latter then the other tenants may get the same idea and the loss will be quite substantial. My argument here is  that if the proposal was unacceptable then the tenants should have objected against it when they were asked in March,. Now when everything is arranged and my deposit is at stake, a guarantor is refusing to accept the permission that his son granted as a tenant.

If I go ahead with the work, he refuse to pay his rent and I deduct it from the tenancy deposit, what are the possible legal repercussions am I looking at? 

Regards

Which deposit scheme do you use? Your best bet might be to deduct it from the deposit and then use the free dispute resolution service if your tenants object.

Have you got the same tenants in next year or will it be a new lot?

Be wary of advice from a forum (especially my own)
Always do your own research

On the facts there doesnt appear to be a variation of contract.  The student have appeared to provide consent for you to enter the premises to begin construction work but you have not provided anything in return (legally referred to as consideration), you might claim the extra bathroom is incremental amenity of the premises but it doesn't appear there is any binding contract for next year's tenancy such that the current students would receive that (?) if you have not given them anything then there is no variation to contract and so the students are entitled to change their mind and refuse you entry. 

You need to read your tenancy agreement carefully.  Most likely it may have some obligation on the landlord to repair and maintain and the tenant to permit entry of workmen but this is not a case of repair.

The guarantor father is just trying his luck.  He has no right to stop paying or to refuse you to enter, but his son and his friends can refuse you - then you have no right to enter without permission (which appears to have been revoked).

How can you go ahead with the work if the students dont let the workmen in?  Without permission they will be tresspassing.  The building firm will then be liable for a civil claim in tort - they'd be nuts to enter.  Worse still if they were sued they would then come after you.   

If you want this to go ahead you need to (a) offer something (b) get it in writing -(whatsapp??!! seriously you got builders organised on the basis of a whatsapp msg?)

Did all 5 independently reply?  Affirmatively?  You cannot claim that not getting a 'no' is a 'yes' (thats a legal point).

You might also want to make sure the is not a Notices clause that requires any change in contract to be in writing and "signed by both Parties" as some contracts require.

As to your specific questions:
1. In my view I needed permission from the tenant not his Father (who is his guarantor) and therefore father shouldn't be speaking on his son's behalf. His Father cannot disregard the permission that his granted and the commitment he made. Is that correct?
The father cannot speak on behalf of the tenant unless authorised by the tenant to speak on his behalf.  The permission can be revoked.

2. If I carry out the refurbishment work and J doesn't pay his part of the rent as mentioned by his father, can I or should I deduct it from the holding deposit at the end of the tenancy?
If you manage to get past the tresspass issue and carry out the work then yes you can deduct from the desposit

3. Would the tenancy deposit agency allow me to deduct the deposit based upon the above described illustrations?
No they will allow the deduction on the basis of rent due not being paid not any of the shenanigans above

4. If I take the issue to the court, would watsapp messaging will be regarded as a plausible evidence to defend my position in the eyes of court?
Nope as there was no consideration there was no variation to the contract.  Whatsapp msg is irrelevant as even a verbal agreement is valid but will suport your claim of a permission being granted but then nothing can save it from being revoked.

Best of luck.

Best of luck