Here is a question to the blog clinic fast track from William (not his real name) who is a tenant:
My enquiry concerns tenants’ rights when the letting agent withholds information about planned construction work to take place during the tenancy period.
When my partner and I signed a 12-month tenancy for a London flat in July 2018, we had to insist on having a 6+2-month break clause, which wasn’t initially included. Three months into the tenancy, we understood why this was: between the fourth and twelfth months of the tenancy period, the entire estate our flat is part of would undergo cladding replacement – something that was known to the landlords, and presumably also the letting agents, since January 2018, according to paperwork provided to me by the housing development company. However, the agency had never mentioned the cladding replacement plans.
Through email correspondence prior to signing the tenancy agreement, my partner and I had expressed our desire to find a property that was in a quiet area. Moreover, the agency was made aware via email that I work from home as a writer, which they acknowledged and said was OK.
The noise level of the construction work has been an increasing problem, but we decided to put up with it for now, as we really like the flat. But with the scaffolding now having reached our floor, the noise is intolerable and doesn’t allow me to work in peace. And at least six more months of repair-work noise await us.
Since we found out about the cladding replacement, circa 3 months have passed. We have now mentioned to the agency we are considering our options, including activating the break clause. We have therefore asked about the costs we’d incur, as we’d be leaving the property four-to-five months before the end of the 12-month tenancy.
However, we’re not sure where we stand in terms of our rights as tenants, nor how we could proceed, considering we’re in this situation because the agency failed to inform us of key information. We would not have taken this flat had we known about the planned repair works.
Answer
There are a number of options available to you. Let’s take a look at them
Misrepresentation and unwinding the tenancy
There has long been a right for people to claim for ‘misrepresentation’ and there is now also a right for tenants to ‘unwind’ or end a tenancy through the courts if they have been induced to enter into it by some sort of unfair practice. Such as concealing a problem – in your case the fact that noisy cladding works were to be carried out.
Unfortunately for you though, you need to exercise these rights promptly or you will be deemed to have accepted or ‘affirmed’ the contract.
So far as the right to unwind the tenancy is concerned, for example, you need to apply to the court during the first 90 days of the tenancy (and ideally during the first 30 days when you can reclaim all monies paid). So this option is no longer available to you.
You will find a brief guide to misrepresentation from Which here.
Noise nuisance
Excessive noise levels in living accommodation is illegal and is one of the ‘hazards’ looked at by Council Environmental Health Officers when carrying out a ‘Housing Health and Safety Rating System’ assessment.
So complaining to your Council is one of the options available to you. There is now a useful noise app which you can use to record noise levels.
The main problem though is getting your Council to do anything about it as most do not have enough staff to deal with the housing issues in their area.
Still, I would recommend that you start recording the noise as of now with the noise app as it always helps to have evidence of these things.
The break clause
As it is obviously going to be impossible for you to end the cladding works, if the noise is intolerable, your best option will be to end the tenancy and move out.
You mention that your tenancy agreement has a six months break clause so I suggest you action this, it now being six months into the tenancy.
You don’t give the wording of the clause but note that it is important that you do exaactly what it says. For example, if it requires two months notice in writing you need to give two months notice in writing. So read it carefully.
Complaints to a Property Redress Scheme
The final thing to discuss is your right to complain about the agents to their Property Redress Scheme.
All letting agents must belong to one of the two schemes or they will be trading illegally. They must give the name and logo of the scheme they belong to on their headed paper emails, website and in their premises, so check which scheme is being used by your landlord’s agents.
There are two schemes:
- The Property Ombudsman (TPO), and
- The Property Redress Scheme
You can read our article about them here.
Note that you can only apply to the Property Redress Scheme after you have failed to resolve a dispute with the agents directly. You will find guidance on the procedures and the forms on the scheme’s website.
The Ombudsman has the power to award up to £25,000 compensation and I don’t see why you should not request some compensation from the agents. For example something towards the costs of moving.
The agents have clearly withheld information from you and acted in an unfair manner – particularly as you specifically told them you needed somewhere quiet as you are a writer. Which happily you will be able to prove as you have your email correspondence.
Conclusion
Whatever you do it is always best to have proper proof and paperwork. So I suggest you prepare a chronology showing what happened in the past and also from now on keep a diary. You can use this to record all meetings, conversations and telephone calls with the agents on this issue and also the noise levels which you will also be recording with the noise app.
This will be very useful for you if you need to make a complaint to your agents Property Redress Scheme.
Sadly there is no one who really enforces the regulations regarding excessive noise. My tenants moved into a new house in a phase 1 of the construction of a large estate. Although there was some expectation that some traffic would continue for a few months the reality was that the street became a major thoroughfare for construction traffic. In addition, the council enforced changes to the kerbs which introduced jack hammers which cause buildings to vibrate.
I took up the cause on behalf on my tenants, but Health and safety fobbed me off, the developer fobbed me off, the council said they had absolutely no responsibility in the matter, the ombudsman argued against me regarding the reasonable enjoyment my tenants should have expected. I wrote to the chairman of the developer and I lost count of the number of representations I made to organisations including the NHBC.
I can tell you that when money and jobs come into play, unless the complainant wants to put a large slice of their own money into the pot then they are wasting their time.
I would note that one of the letters received from the developer was absolutely clear that they would fight me all the way through the courts (until I had no money left) to get their way.
I often read articles knocking landlords. Sometimes a landlord will go the extra mile for their tenants but there is not a chance that they can resolve a problem.
Many thanks, Tessa. I’ve been keeping a written diary about the noise and kept short video recordings of myself inside the flat so that the noise can be heard and it’s clear that I’m inside the property at the time.
I don’t intent to complain to the local council because I believe this noise is inevitable for the nature of the work taking place. What I’ve explained to the letting agency is that my concern/complaint isn’t that the repair works and noise are occurring; it’s that they didn’t tell us it would occur during our tenancy, as we wouldn’t have accepted this flat had we known. I’ve asked the agency on three occasions why they withheld this information from us, but they simply don’t respond, and sidestep the issue.
Since writing to you, my partner and I have invoked the break clause in our contract and we’ll be vacating the flat in two months’ time, which all adheres to the provisions in our contract. In addition, as we’re the ones terminating the contract early, the contract stipulates that the terminating party is “responsible for balancing of the Agent’s fees or costs incurred”. This amount has been calculated at £936, based on a formula visible only on their website (the contract doesn’t specify a formula).
The agency has said we can pay this amount any time in the next two months (though the contract says nothing about when the fee should be paid). But I’m afraid that if we pay this not out of our deposit, but through additional money, the agency may try to keep a larger sum of our deposit (online reviews from people who previously rented through this agency allege the agency is unscrupulous when it comes to keeping deposits). So I’d be more comfortable allowing the agency to deduct the fee from our deposit instead, and should they unreasonably hold onto any further amount, then appeal to the deposit protection scheme. I simply don’t want to put any more of our money in their hands, except the rent.
Thanks so much for bringing the Property Redress Scheme to our attention! I will certainly read into this. The agency belongs to The Property Ombudsman – this is visible on their website only, but not included under their signature in their emails. In terms of failing to resolve our issue with the agents directly, they have not admitted to any wrong, failed to answer my questions regarding why they withheld information, and haven’t offered any compensation. I’m not sure if this qualifies as failure to find a resolution with them, but I will nonetheless read the redress scheme information you suggest, as the agency should be held accountable for its actions and negligence. Many thanks again.
I wouldn’t be too quick to agree to the agent’s fees item. This would be prohibited under the Tenant Fees bill (when it goes into law) but in the meantime, I think it is highly likely to be an unfair clause under the Consumer Rights Act 2015 https://landlordlawblog.co.uk/2017/04/26/tenancy-agreements-33-days-tips-day-16-unfair-terms/
After all – why you should have to pay the landlords letting agents fees? This puts you in a worse position than a tenant whose landlord does not use an agent – which is unfair. You should not have to pay more just because the landlord chooses to use a letting agent to manage the property.
If there is any dispute about the deposit, you may want to consider opting to have this resolved via the Courts as the Courts are more likely to make awards in your favour for example as regards unfair clauses, compensation for excess noise, misrepresentation (maybe) and the like.
Or at least you can threaten to claim for these items and the agents may give in as they probably won’t want to put it to the test.
Thanks Tessa. I’ll include the wording from the relevant article in our contract: “Where Landlord or Tenant terminates/breaks the tenancy earlier than the stated term, including usage of the early termination or abandoning the property, the party wanting to terminate the Contract will be responsible for balancing of the Agent’s fees or costs incurred.” From a lay perspective, this doesn’t seem unfair on the basis that it applies to both Landlord and Tenant equally, but I may be wrong…
Nonetheless, I see from the Day 16 blog you shared that, where a clause is imposing a penalty or charge to the tenant, that it be “reasonably incurred” — on this basis, I’m wondering if we’re still liable to pay this early termination fee, despite it being in the contract, as the reason we’re leaving the property is an outcome of not having been informed about the planned works prior to signing the tenancy agreement. I made this clear to the agency in writing when we handed in our notice. We acted in good faith, but the agency and landlords appear to have exploited this. So I’m wondering if it could argued that it is unreasonable for the agency to apply this article in this particular case.
Additionally, I recently learnt that early termination fees don’t appear to be the norm among agencies, as other agents we’ve met recently to view other properties say they do not charge these, and they are surprised that any agency would do.
That’s life. Buildings require maintenance and repair.
Routine works are carried out at reasonable hours.
An owner occupier would have to put up with it, why should a tenant have any more (or less) rights? Otherwise it just pushes up rents for everyone.
I’d be interested to see any actual case law regarding this.
Yes, of course repairs and maintenance are necessary, and indeed are done during daytime hours when most people are not at home. I’m not contesting this. But to clarify, the issue in our case is that information about plans to carry out major repairs, which had been known about well in advance, was withheld from us, when this information would’ve been crucial in our decision to take the flat or not. Is this not information prospective tenants should really be told about? After all, tenants have free will in deciding where to live; so, prior to signing a tenancy, if it’s known that noisy repairs or maintenance are anticipated, they can reject a property and choose one which better suits their needs – or indeed even decide it’s not a problem for them. They cannot make an informed decision if information is withheld from them. In our case, that information about the works was withheld from us makes us feel cheated, as we would have certainly rejected the flat had we known about the works.
The agency probably withheld the information from us because it’s doubtful anyone would rent a place they knew would be covered in scaffolding for two thirds of their tenancy. Such work negatively affects quiet enjoyment of the property because of the noise involved, obstructs light through the windows, and can feel like an invasion of privacy. And this impact is heightened if the tenant spends most of their time at home. I appreciate that while someone who does not work from home might not be as affected by the works because they’re not home during the day, in my case I do work from home and I am very affected by the works.
When viewing properties, we had only considered ones which we knew were in a quiet area and had good sound insulation between neighbours – we were very diligent and careful in picking a property that suited our circumstances. So to learn, three months into our tenancy, that major repairs would be taking place during the remaining nine months of the tenancy felt very unfair.