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Double check out

Double check out

Postby theycantdothat » Tue Sep 30, 2014 7:11 am

The following seems to happen quite a lot: The tenant is checked out by the agent or the landlord who after an inspection agrees what the "damage" is. Later the landlord inspects (again if it was he who did the first check out) and finds more "damage". Can the tenant rely on the first result even if the second reflects the actual position more accurately?
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Re: Double check out

Postby dls » Tue Sep 30, 2014 7:38 am

It is about what is said as to each and the circumstances.

I would have thought that a section 146 notice (the nearest in statute) is a statement requiring certain repairs. That statement does not limit service of a subsequent notice raising additional issues.
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Re: Double check out

Postby theycantdothat » Tue Sep 30, 2014 8:07 am

Let's assume something like the following:

It is the last day of the tenancy and the agent and tenant go over the property together. A list of "dilapidations" is agreed. The tenant vacates. The agent and tenant subsequently engage in negotiations as to what damages the tenant should pay. The landlord inspects later and finds things not noted by the agent. Leaving aside any question as to whether the agent's report is likely to carry more weight because it was prepared by a professional and at the end of the tenancy and other similar considerations, can the landlord introduce his findings?
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Re: Double check out

Postby dls » Tue Sep 30, 2014 8:48 am

I cannot see why not.

The lease creates an obligation to pay for certain repairs. It is related to the obligation in the lease, not one derived from a notice.
How would you infer a represenation that nothing more would be forthcoming?
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Re: Double check out

Postby diy » Tue Sep 30, 2014 10:32 am

To me its down to if the additional items are omissions or disputed damages. e.g. the kettle was or was not there. If T disputes that the damages were caused by him then the check out notice would be his position. If however, they were of a kind that they cannot be disputed then its an omission and the original terms apply.

Might be sensible for T to negotiate damages in Final.
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Re: Double check out

Postby theycantdothat » Tue Sep 30, 2014 11:52 am

dls wrote:I cannot see why not.

The lease creates an obligation to pay for certain repairs. It is related to the obligation in the lease, not one derived from a notice.
How would you infer a represenation that nothing more would be forthcoming?


I can see that. However:

· If the tenant thinks that only a, b and c are he is at a disadvantage in arguing about d, e and f if they are raised later. He may perhaps have taken photos of the areas involving a, b and c but not d, e and f.

· If the the landlord or agent has agreed how any wants of repair etc are going to be assessed and that includes agreeing what they are at a given time, can that be changed?

· Apart from limitation, how is a tenant to know when the matter is finally settled?

· It is not unknown for a landlord to be plain deceitful. He meets the tenant at the property and, with a view to getting vacant possession without dispute, tells him that everything is shipshape and a cheque for the full deposit will be in the post. A short time later he tells the tenant he has to pay for a professional clean.
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Re: Double check out

Postby dls » Tue Sep 30, 2014 6:36 pm

The risks you identify are real.T is however told when he enters the lease what his responsibilities are. It is for him to make sure he has done so.

As well as taking photographs he might insist on a receipt for the last rent paid. If clear you have a start.
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Re: Double check out

Postby Smouldering Stoat » Tue Sep 30, 2014 6:51 pm

Well yes, but it is one thing for the tenant to discharge his responsibilities, but quite another for him to convince an adjudicator he has done so. The tenant faces a major disadvantage in that, once the tenancy is over, he has no access to the property. It is really quite common for the Landlord to go back in and "find" more damage than the tenant and agent had agreed (always assuming the tenant goes to the check out at all). TCDT is right that Landlords often succumb to the temptation to, ahem, maximise their claim at the tenant's expense.

Practically, however, the Landlord will effectively have two check out reports which are inconsistent. The tenant's argument, presumably, is that the doubt ought to be resolved in his favour.

My advice to every tenant would be to photograph the property to within an inch of its life before leaving.
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Re: Double check out

Postby theycantdothat » Wed Oct 01, 2014 8:00 am

We have rather wandered off into discussing what a tenant can do if presented with two check out reports. I am interested in establishing whether there is any argument that the parties are bound by what was agreed when the tenant moved out. It is unlikely that in most cases the landlord (in which I include agent) and the tenant actually agree specifically how they will proceed. What happens is that they agree there will be a check out. The landlord turns up and landlord and tenant go over the property together and note the dilapidations. The tenant vacates. Is there not implicit here an agreement that the joint inspection is definitive in establishing the dilapidations? If not, is that not tantamount to suggesting that the tenant must assume that the landlord is not doing a thorough job and will come back later to check more carefully? If we are suggesting that then what is the point of conducting the check out with the tenant present?
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Re: Double check out

Postby diy » Wed Oct 01, 2014 1:28 pm

Perhaps you should consider it to be more like a snagging list than final agreement. Why can't L add something missed? Why cant T rely on the first check-out as final? Surely the answer is in what is agreed in the terms. To me its just a process of agreeing items that are to be addressed.

Otherwise you might subject T to detailed survey taking many hours on the day that they want to get on with moving out.
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