Claim against tenant - a few questions

[Reviewwworld]

Hello
The previous tenant vacated a few weeks ago and leading up to that point prohibited access for inspections and for new tenant viewings.

Unsurprisingly, once we gained access to the property we have itemised considerable damage well in excess of fair wear and tear.

After getting quotes to rectify everything, we presented a clear document to them contrasting independent check in Vs checkout photos and comments. There only response has been to refute the majority without a positive acknowledgment of any.

Given the total is in excess of the deposit, is it better to claim full amount via deposit dispute resolution and then the balance via courts or just whole thing via court?

Secondly, the damages are to a point we are unable to rent the property in its current state. Are we able to claim for loss of income/rent whilst these are being carried out?

Thanks in advance

[atticus]

You may well have grounds to claim all these things, but first things first: can the tenant pay?

[Reviewwworld]

Yes. At least in our favour, the vetting process was great and the ex tenants are of wealth. It's a high end property I rent out so only attracts the high earners, with the downside of smaller client base comes the upside of at least having means to cover damages incurred

[islandgirl]

I would take the deposit money (if awarded which it hopefully will be due to your clear eveidence) then sue for the difference.

[Reviewwworld]

Thank you. I think that makes sense as at least get some payment near term as the small claims court backlog remains significant and it could be over a year till we see the balance.

Are you also in agreement with regards to claim for loss of rent? It works out as 5 weeks from end of tenancy till the works are complete to a point it can be habitable ie not claiming all the time until a new tenant is found

[islandgirl]

I do not know for certain but doubt you can claim lost rent for the time it takes to do the works. You claim for the cost of putting it right but not the lost time.

[Reviewwworld]

Would be disappointed if I couldn't as why would it be treated to other loss of earnings. Their direct actions prevent the property being habitable by new tenants until the work is carried out.

Additionally by preventing an inspection in the month prior to the end of tenancy, as well as not notifying me of any issues, they have triggered a scenario whereby I can only start looking for contractors once their tenancy has ended

[islandgirl]

Still a no from me I'm afriad.

[efpom]

In order to get home on a claim for consequential loss on a contract, you must prove that the loss:

• Was caused by the other party’s breach of contract
• The loss is not too remote i.e. the loss was foreseeable at the time the contract was made - second limb of the rule in Hadley v Baxendale [1854] EWHC Exch J70.

If the rental contract places an obligation on the tenant to keep the dwelling in a good and tenantable condition (fair wear and tear excepted) and there is no exclusion clause which prevents a claim for consequential loss, and if the tenant breached that obligation then I think you do have a claim for loss of rent for the length of time it took for you to return the dwelling to a tenantable condition.

[Reviewwworld]

Thank you, will go over the contract once more but don't recall any exclusion clause. I suspect in much the same way "fair wear and tear" is a grey area, "tenantable" is also open to interpretation. My argument would be a combination of safety and appeal.

In the first instance, there is damage to cabinets that leaves them insecure from their mount and I would be comfortable being liable to a tenant using them and potentially the cabinets falling and causing injury.

On the appeal front, it's a high end property and the damage is widespread and sufficient enough to have a hugely detrimental impact on the appeal of the property until rectified

[efpom]

Careful - you seem to me to be mixing up direct loss i.e. the cost of putting right damage caused by the tenant and indirect or consequential loss, which here, is loss of rent for a void period, which was extended as a result of that damage, and compounded by the refusal of the tenant, in breach of contract, to allow inspection access, such that you could not arrange contractors to repair that damage, until you gained possession of the property.

[Reviewwworld]

Ah ok, got it, makes sense thank you

[islandgirl]

I hope Efpom is right and that you can claim though I disgaree in this case. However I believe an issue would be that there is no certainty the flat would let on day 1 of being vacated.

[Reviewwworld]

I definitely see your point but the argument to be made is that their actions prohibit it from being let i.e. there is no probability of it being let currently. But, acknowledge there is a counter argument that can question the balance of probability it would be let on day 1 should it be left in the contractually agreed condition.

[efpom]

I take the point.

If, for example, there was a normal 'void' period between a departing tenant ending his tenancy and an arrival tenant beginning his tenancy two weeks later, that would be a "normal" void period and is a cost of doing business by any landlord.

But here, the void period has been extended by the the tenant's breaches of contract. It is the time difference between the 'normal and 'extended' time which is the the "loss of rent" that is claimable from the departing tenant.

Further, if the arriving tenant was due to take occupation the day after the departing tenant left, and that arriving tenant could not take up occupation, because of the dilapidations caused by the departing tenant, and walked away to find somewhere else to live, th\at would be a "loss of opportunity" to rent and would be claimable as a consequential loss.