Here is a blog clinic question from Angela (not her real name):
I need some legal advice with a small claims court claim I have taken out against a tenant who has just moved out, leaving the property in a dirty and unkempt state. Am I allowed to charge mesne profits against the days during which the property is empty but I am sorting out the mess he has left behind?
Also, is it true that legally, a tenant cannot withhold rent, or any part of rent, if a Landlord has not fixed heating or hot water appliances in a property? I had a nightmare with the property, whereby first his shower went, then his boiler. I called out a total of 3 plumbers over the course of several months in a concerted effort to fix these appliances.
It took months because the tenant failed to report problems promptly when I thought we had things fixed and had paid plumbers bills in the meantime. We got the shower fixed on the third attempt (one plumber had put the part in back to front.)
The tenant then complained the boiler was only working intermittently. His gas bill shows the boiler usage was commensurate with an average use for that time of year (middle of winter). However, I still tried to get it to work by calling plumbers in, and have the bills and emails to prove this, but without success. One plumber sent me a bill for over £700 and eventually admitting incompetence settled for payment of £100 after I complained.
Eventually I told the tenant he could call someone in himself if he wished as I was unable to find anyone to fix it and also at that time he owed me over £8000 being 3 month’s rent plus bills and I had already incurred over £1000 in expenses trying to sort out the problem. Not only did he refuse to go down that route, he then later refused a 4th heating engineer access when I found someone else. What is the legal situation in this case?
A couple of points here.
To claim for lost rent a landlord will have to prove (1) that the property was left in a state which goes beyond fair wear and tear and (2) that as a result of the tenants breach of covenant (ie to look after the property) it has been vacant for longer than would otherwise have been the case.
In order to prove this, you would need to prove how long it would take to let the property if it had been left in a reasonable condition under current market conditions and that hte works you had to do extended this period. So such a claim is possible but is not a particularly easy one to prove if it is challenged.
A tenant can sometimes withhold rent, but this is only to cover the actual cost of getting repair work done when the landlord has failed to take action. There is a procedure they need to follow first though, which includes getting estimates and sending them to the landlord, and warning them what they are doing.
It sounds to me as if you have investigated all problems properly. If you have had several plumbers out to fix a problem and none of them have found it, that sounds to me rather like evidence that there was not actually a problem. I don’t think your tenant has any cause to complain particularly due to the fact that (1) they then refused to let one of your plumbers in to do work and (2) they were in arrears of rent.
What do other people think?