Two bites of the apple- limitation in professional negligence cases
For any landlord, the cantankerous tenant can be a nagging unwelcome problem. There is a juxtaposition between complicity in a ‘quick fix’ and slaloming through landlord and tenant laws to solve what can quickly become a time consuming and stressful issue. Whether the property is commercial or residential, the procedure for ousting a tenant can be intricate and unforgiving if shortcutted. Written tenancy agreement or not, rent arrears, concerns of disrepair or in the event of more unusual tenant behaviour, landlords and their letting agents all too often get it wrong. Naturally, this results in financial consequences and like so many recurring legal issues, it all could have been avoided at an earlier stage.
In the Queen’s Bench decision on Vice v Investing Solutions Ltd, handed down on 5 September 2014 and going unreported, the Court considered a rather unusual set of circumstances but came to a familiar conclusion. The result was the granting of a mandatory injunction for a tenant to be allowed access to his property in accordance with his lease.
Of course to reach such a conclusion, a tenant would have to be excluded from his property in the first place. Whether it be the landlord, the letting agent, or a fellow tenant (or in this case a combination) the Courts pay heed to tenancy agreements when there is one.
In this particular matter, the applicant tenant applied to continue an injunction ordering the respondent letting agent to permit him access to his property. The applicant tenant had shared the property with another individual. The letting agent had arranged both tenancies.
After the second tenant had moved into the property, he alleged that the first had committed criminal damage against his car, which was formerly owned by the letting agent. The magistrates' court granted the applicant tenant bail on the condition that he live and sleep at the property.
The issues between the two tenants continued and one prevented the other from entering the property. The applicant tenant obtained an injunction ordering the letting agent to permit him access to it. It was later alleged that the injunction was not being complied with and that he was being excluded from the property. There was also a sub-plot in which it was alleged that the second tenant worked for the letting agent as a handyman and an employee.
The Court granted the applicant continuing injunctive relief pending trial, ordering the property’s letting agent to permit the first tenant access to the property. The Court ruled that he had a right of access and peaceful enjoyment under the tenancy agreement. Whether the second tenant was an employee or a tenant was a matter for trial.
Even in this somewhat irregular set of circumstances with criminal issues in the foreground, the fact that there was a tenancy took precedence. Landlords and their letting agents should be extremely cautious when excluding tenants from their property. It’s not simply a question of pragmatics like throwing their belongings out or changing the locks. If there are any issues whatsoever, legal advice at an early stage is the prudent course. It saves time and money in the long run and there is almost always a solution available, even if it’s not immediate.
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