Tenant claiming trespass and breach of peace

Landlord Discussion Legal
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Hi all,

Happy new year! I have a couple of questions regarding tricky tenants, which I hope you can advise on. Apologies for the long post!

These 2 tenants are on a 12 month fixed term contract since 1st May 2022 (standard Openrent AST, with 6 month break clause) for a 2 bed flat in SW London. Myself and my business partner are joint landlords. In December, they notified me about mould in the flat. I checked with freeholder, who is also the council, to rule out any structural issues, and I am currently investigating solutions such as installing ventilation systems etc, but as an interim solution, we offered to buy a new, supposedly very effective, dehumidifier. I asked the tenants about their availability and they said they were away for the Christmas / New Year year period, so my business partner had the dehumidifier delivered to her address and said she would drop it off to the flat over the Christmas break so it would be there by the time the tenants got back from their holidays. I notified the tenants about this on the 20th Dec and I did not hear anything back from them. On the 2nd Jan 2023, I received a phone call from one of the tenants telling me they were locked out and cannot get inside the flat. I was initially confused as the tenants have all the keys for all the locks to the flat (and this is documented in the inventory report). My business partner had locked both locks of the front door for security after she dropped off the dehumidifier, and here was the problem - the tenants told me they separated their keys, without telling us, and they only use one of the two locks of the front door. Of course, I came down to unlock the door as soon as I could, but I received a lot of verbal aggression (via multiple text messages) before I arrived about how the tenant has the legal right to choose what keys they use, and that this access to drop off the dehumidifier was technically a breach of tenants’ right to quiet enjoyment and that it is trespass because we did not notify them of the specific day for access or providing 24 hours notice. He literally wrote “what do you want slapping with first, breach of quiet enjoyment or breach of tenancy agreement via trespass. You do not get to dictate what keys I am using for a property I am renting. Basic L&T”, and even asked if he would be reimbursed for his drinks and meal he’s had to buy while he’s waiting for me to unlock the door. Of course, he was still having his dinner elsewhere when I arrived so I simply unlocked the door and left, since I was not sure if he would be as hostile in person and I really did not want to hang around and see.

This tenant is generally very aggressive in his communication, and has repeatedly threatened legal action in what would otherwise be straightforward interactions (e.g. “there is mould in the flat, do I need to remind you of your landlord repairing obligations”) I have kept my side of communication as polite as possible, which only seems to enrage him further. I cannot see this relationship improving, and I would rather have a void period than deal with this attitude. I am planning on issuing a Section 21 next month to terminate the tenancy at the end of their fixed term period (30th April is the last day of the initial term). I have checked the S21 validity flowchart and I am fairly confident it is valid. So my questions:

  1. I am worried the tenant will try to derail my S21 notice with the claim that we trespassed and breached their quiet enjoyment when my business partner dropped off the dehumidifier. The tenants were notified on the 20th Dec that we would be doing this while they were away for the Christmas period, otherwise if they were at home, we wouldn’t have bothered and would have simply ordered the dehumidifier to be delivered directly to the flat. Is there any basis to this claim of trespass and breach of quiet enjoyment? Consequences of this? Should I be lawyering up? I think it’s a stretch but these days, you never know!

  2. We are pro-actively trying to resolve the mould problem, and will likely install the ventilation system. We have already sought and received written permission from the freeholder, Wandsworth council, to install the vents that cut through the external walls of the building. Would the mould issue threaten the validity of the S21?

  3. Is there any legal basis to the claim that tenants get to choose which keys they use for the property? I couldn’t find anything online specifying this. Tbh I think the tenant is stupid for separating the keys and not using all the locks, and then trying to blame us for his mistake. Surely this would simply risk their contents insurance terms if they suffered a break in?

  4. Any other advice for when issuing the S21? Would you hand-deliver a copy of the S21 in addition to email, just to ensure they received it, or is that too much?

Thank you in advance!

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I have 2 door locks on some of my places and the tenants only use one. If i go into their place (with their permision) then I only lock using the one key ,as I found it Your mistake ,that one. About choosing what to lock >garbage ,They are trying it on Get rid asap

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Thanks for your comments Colin, yes definitely getting rid of these tenants asap. It’s not even the lock issue, I would have been totally fine with coming to unlock the door as mistakes do happen, but their attitude and rudeness is awful, and I know this place would easily rent so I’m quite happy to get rid. Obviously keen to ensure I do this in as a legally compliant way as possible!

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  1. I don’t think the tenant would get anywhere with a claim for harassment, breach of quiet enjoyment or trespass as there is no evidence of this and you have rights of access for inspection purposes. It also doesn’t affect s21.

  2. The mould and its cause need to be dealt with. Do you know the cause? It could be tenant lifestyle, such as drying clothes over radiators, not adequately heating or ventilating the property etc. However, you must try to establish the cause and I would suggest a damp survey. As the tenant notified you of the problem prior to the s21 then it could potentially be used to derail the notice on the basis of retaliatory eviction, but not necessarily as the conditions for this are very specific. You’ve provided them with a dehumidifier and I suggest you offer to help clean up the existing mould. The tenant would have to call in the EHO, who would have to send you an Improvement Notice. It might even be worth contacting the Council yourself to let them know that you’re dealing with the problem.

  3. Tenants do of course have a right to choose which keys to use unless you’ve made the use of both keys a contractual term. However, this was a simple error that you dealt with promptly and the tenant won’t get anywhere with their complaint or the a claim for a meal allowance!

  4. I’d hold off with the s21 until you have evidence of the cause of the mould, but then just send two copies by ordinary first class post from different post offices and get a receipt of postage from the counter.

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Something doesn’t quite add up here. The council is the freeholder. You never say how long the mould issue has been going on for, but the fact that you have got written permission from the council to cut holes in the side of this ex-council house suggests a few months as we all know councils aren’t that quick. Then when you finally get around to sorting out the problem (to their frustration as a dehumidifier really is not a big cost to buy) they are not around to take delivery. You then lock them out of their own home (inadvertently, but still they were locked out). If I were them I would be in a pretty similar mood as the tenant. They have mould, you prevaricated, rather than spend £200 on a dehumidifier you left them to stew for a few months until they are ready to explode, you locked them out, BOOM.

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Thank you David, that’s super helpful and reassuring. We have already had a damp assessment from Kenwood a few weeks ago but all their report did was essentially sell their product rather than establish the cause of damp. The only mention was just saying it is caused by condensation (as opposed to structural issue) but we already knew this. I did call them but they said they don’t go into further detail on the cause. If you know of any damp survey companies you can recommend, please do let me know. Thank you again!

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Thanks for the comment Graham. There’s not been any significant delay and I believe our responsiveness has been appropriate. The damp/mould issue only arose in late November when the tenants first notified me of the issue. I’ve checked with the other neighbours in the block, and they don’t have any problems so the issue definitely not structural, which the council / freeholder also said. There was no prevarication as you suggest - the biggest delay was getting damp specialists to come out to the property to assess as it’s their busiest time of the year. The written permission from the council was only requested in December and they replied with their consent the very next day, so I was as surprised as you are about how unusually quick they were being! Also we don’t have an issue with the dehumidifer cost, we actually went for a rather expensive model but the problem was that everywhere was sold out so we ordered it as soon as it was back in stock, but this coincided with the tenants being away. In hindsight, with the key/lock issue, I may add a clause in future ASTs for the tenant to at least carry all keys provided - the block has suffered from unauthorised people gaining access (council are aware) so this is actually in the tenants’ interest.

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the perfect landlord has not been born . I am sure other landlords have had similar problems you have my sympathy at least. Boom.

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If you have a report saying its caused by condensation, I would write to the tenant with the findings, give them information on how to combat it, help clear the existing mould then serve the s21, all withun the next few days.

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We used a company called Damp 2 Dry Solutions in Yorkshire, don’t know if they are nationwide though. They gave a good comprehensive report with recommendations.

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If theres 2 locks on the property thats what you use, I cannot understand this comment of they choose which key they use, where is that in law

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Its the other way around. There is no law compelling them to use both keys, therefore its their choice unless its a contractual obligation.

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