Property Disputes: Your Questions Answered

QUESTION:
I have served a Section 25 Notice under the Landlord and Tenant Act 1954on my tenant.   The expiry date contained in the Notice has now passed but there have been several extensions of that date.  We are now four months beyond the original expiry date contained in the Notice. 

I have been told that an application for interim rent must be made no more than six months after the termination of the tenancy.  What I am not clear on is whether that six months starts to run from the termination date stated in the Section 25 Notice or whether it runs from the extended termination date  agreed  between  the  parties.   Given  that  four  months  have  now passed since the date contained in my Section 25 Notice, do I need to bethinking about making an interim rent application shortly?

ANSWER:
Because  you  have  agreed  with  the  tenant  to  extend  the  expiry  date contained in the Notice, the tenancy has not yet come to an end. The six month time period has therefore not yet started to run.  You can ignore the date contained in the Notice. Your claim for interim rent should be made six months from the agreed extension date.   

QUESTION:
I am a landlord of several residential properties.  I have managing agents who look after the properties and deal with the collection and protection of deposits.  I have recently found out that my agents have been receiving deposits but not placing them in tenancy deposit schemes as required.  A former  tenant  has  now  brought  proceedings  against  me  claiming  a payment of three times the amount of the deposit.  I have never physically received the deposit or handled the money myself.  This has always been dealt with by the agents.  Do I therefore have a defence to this claim?

ANSWER:
Technically,  the  tenant  can  bring  the  claim  against  either  you  as  the Landlord or against the agents themselves.  Section 212(9) of the Housing Act 2004 includes within the definition of “Landlord” any person acting on the landlord’s behalf in relation to the tenancy.  The short answer therefore is that  the tenant  is  able to bring a claim against  you as the landlord notwithstanding that you had no direct involvement with the handling of the  deposit.   However,  you  will  be  entitled  to  join  the  agents  to  the proceedings and to bring a claim against  the agents for breaching  the duties owed to you.  You will be the middle man in this action and seeking an indemnity from the agents.

QUESTION:
I am a property agent acting for a freehold management company.  I am in the process of issuing service charge demands to the leaseholders.  The leases state that  the leaseholders  are to pay a “fair  proportion of  the expense  of  all  communal  services”.    The  leases  also  state  that  the definition  of  “fair  proportion”  is  to  be  determined  by  the  freeholder’s surveyor  and that  his determination shall  be final  and binding.   To my mind,  this  seems  to  prevent  the  leaseholders  from  objecting  to  the proportions that we consider to be fair.  Is that right?

ANSWER:
I am afraid that this is not right.  In Windermere Marina Village Limited v Wild, the Upper Tribunal (Lands Chamber) held that any clause that tries to prevent a tenant from making an application to the Leasehold Valuation Tribunal (now the First Tier Tribunal (Property Chamber)) to challenge the level of any service charges is void and of no effect.  The impact of such a clause being held to be void can be disastrous. The landlord will lose all control over the apportionment of the service charges. The Tribunal will been titled  to  consider  the  issue  of  apportionment  afresh.   Many  leases contain these void provisions that purport to give a landlord the absolute and final say in determining what is a fair proportion.  Landlords need to be aware that if this is ever challenged, the entire clause will be struck out as void.