england-and-wales real-estate property landlord
Can I legally take liability from a previous tenant? What are the limitations of this?
<p>I have a question regarding tenancy laws in the UK.</p>
<p>I took over the tenancy for the place that my dad was living in as I needed somewhere to go in an emergency. I didn't have a deposit so my dad told the landlord to keep his deposit. The landlord didn't bother inspecting the property when my dad moved out, instead he asked me to sign a contract stating that I would take liability for the state of the property - I signed this since it was my dad's deposit anyway and I needed to move out ASAP.</p>
<p>One of the first things I noticed about the property was that the carpets are in disrepair. There are stains, frays and matted areas all over. It is impossible to keep feet or socks clean and the dirt from the carpets is enough to permanently stain socks. I started wearing flip-flops indoors as a hygienic solution.</p>
<p>Since the carpets are in disrepair, I sent an email to the landlord asking for him to replace the carpets. The landlord's response was that it must be a cleaning issue and therefore he will not be replacing the carpets.</p>
<p>My dad lived in the property for 5 years and did not once clean the carpets. I wouldn't be surprised if he barely used a vacuum cleaner in that time either. That being said, the landlord said that the carpets were &quot;like new&quot; when my dad moved in. I have been here for 8 months now. This means the carpets are likely around 6 years old.</p>
<p>My dad is disabled and was paying for rent with disabled benefits. My brother and his girlfriend lived with him for a few years and I lived with them all for about a year. This means there was probably substantial wear &amp; tear to consider on the carpets (which span the entire house except for the bathroom, which is lino).</p>
<p>In addition to all of the above, when I mentioned the carpets to the landlord during an inspection, he said &quot;We have already noted the carpets. We will replace them after you've left.&quot; This to me says both that they were aware they needed replacing <em>before</em> I signed the contract to transfer liability, and that they recognise that they need replacing.</p>
<p>My questions are as follow:</p>
<ol>
<li><p>Should the landlord not replace the carpets regardless of the situation, since they are presumably at the end of their lifespan and they have practically admitted that they need replacing?</p>
</li>
<li><p>Just how much liability have I taken over from my dad? Is it even possible for someone <em>without</em> a disability to take liability from someone <em>with</em> a disability?</p>
</li>
</ol>

<p>I'm going to take different view to @DaleM and say you cannot take liability for damage caused by a previous tenant, notwithstanding that you purported to agree to that.</p>
<p>I know you stated that you &quot;took over the tenancy&quot; but I'll start with the assumption that what you mean is that you signed a new tenancy agreement with the landlord (containing a clause agreeing to be liable for past damage), as this is by far the most common scenario in practice. I'll then examine the alternative scenario. I've asked in the comments for you to clarify how you entered into the tenancy agreement.</p>
<h2>New tenancy agreement</h2>
<p>In a new tenancy agreement, you <em>cannot</em> take liability from a previous tenant in <a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" rel="tag">england-and-wales</a>, due to the provisions of the <a href="https://www.legislation.gov.uk/ukpga/2019/4/contents" rel="nofollow noreferrer">Tenant Fees Act 2019</a>. I'm open to being convinced otherwise if anyone has an alternative interpretation of those provisions.</p>
<p>A landlord must not require a tenant to make a prohibited payment:</p>
<blockquote>
<p><strong>Section 1(1)</strong>: A landlord must not require a relevant person to make a prohibited payment to the landlord in connection with a tenancy
of housing in England.</p>
<p><strong>Section 1(9)</strong>: In this Act “relevant person” means — (a) a tenant, [...]</p>
</blockquote>
<p>The starting point is that <em>all</em> payments are prohibited. Exceptions to this are then listed in Schedule 1 of the Act. If it's in the Schedule, you can require payment; if it isn't, you can't.</p>
<blockquote>
<p><strong>Section 3(1):</strong> For the purposes of this Act a payment is a prohibited payment unless it is a permitted payment by virtue of
Schedule 1.</p>
</blockquote>
<p>Payment for damages relating to breach of contract is permitted:</p>
<blockquote>
<p><strong>Schedule 1, Paragraph 5</strong>: A payment of damages for breach of a tenancy agreement or an agreement between a letting agent and a
relevant person is a permitted payment.</p>
</blockquote>
<p>In a typical tenancy agreement, failure to return the property in the condition you found it (allowing for fair wear and tear) is a breach of contract. Hence, it is not prohibited for landlords to require their tenants to pay for damage to property.</p>
<p>The issue here is that <em>your dad</em> committed the breach under <em>his</em> tenancy agreement. Under your tenancy agreement there has been no breach. Therefore, requiring payment from your dad is permitted; requiring payment from you is not. Any clause which purports to do so is unenforceable on the tenant:</p>
<blockquote>
<p><strong>Section 4(1)</strong>: A term of a tenancy agreement which breaches section 1 is not binding on a relevant person.</p>
</blockquote>
<h2>Novated tenancy agreement</h2>
<p>It's possible that instead of signing a new tenancy agreement, you <a href="https://en.wikipedia.org/wiki/Novation" rel="nofollow noreferrer">novated</a> the old one. This means that <em>all three</em> parties (the landlord, your dad, you) agreed to substitute you for your dad as a party. It is not possible for only you and the landlord to agree to a novation. That's because the outgoing party gives up their rights as well as obligations; hence their consent is required.</p>
<p>Although this is commonly be described as &quot;stepping into the shoes&quot; of the outgoing party, strictly speaking this is not what happens. Rather, the old contract (between A and B) is extinguished and a new contract (between A and C) is formed on the same terms (or partially on the same terms, depending on what the novation states).</p>
<p>Under a novation, the default position is that pre-novation liabilities remain with the outgoing party. It's possible (and common) to expressly provide something different, which is what has purportedly happened in your case.</p>
<p>That raises an interesting question as to the effect of Schedule 1, Paragraph 5. In my view, while you can expressly provide that <em>liability</em> can transfer from B to C in a novated contract, you cannot provide that <em>breaches</em> can transfer. A breach is a factual occurance and it's nonsensical to rewrite history by saying that C committed a past breach which in fact B committed. Instead, what you can do is say that C agrees to be <em>liable</em> for that past breach. Saying otherwise would be incompatible with the principle that a novated contract is a new contract which extinguishes the old.</p>
<p>Accordingly, my view with regards to Schedule 1, Paragraph 5 is the same as if you had signed a new tenancy agreement (which is effectively what you have done with a novated tenancy agreement). You did not commit the breach, therefore asking you to accept liability for it under the novated contract is prohibited.</p>
<p>Note also that it is permitted to require payment of £50 or the landlord's <em>costs</em> in relation to the novation, whichever is greater. However, in my view this applies to only to the outgoing party, being &quot;the tenant&quot; who makes the payment &quot;in consideration&quot; of the novation of &quot;the tenancy&quot; which is done &quot;at the tenant's request&quot; (all of which implies we're talking about the existing tenancy, not the new one). The language would appear to exclude the possibility that the incoming party can legally be required to make the payment:</p>
<blockquote>
<p><strong>Schedule 1, Paragraph 6</strong>:</p>
<p>(1) A payment is a permitted payment if it is a payment — (a) to a
landlord in consideration of the variation, assignment or novation of
a tenancy at the tenant's request, [...]</p>
<p>(2) But if the amount of the payment exceeds the greater of — (a) £50,
or (b) the reasonable costs of the person to whom the payment is to be
made in respect of the variation, assignment or novation of the
tenancy, the amount of the excess is a prohibited payment.</p>
</blockquote>
<p>If I'm wrong <strong>and</strong> the landlord also released your dad from liability for damage to the carpet (which is not necessarily implied by the fact that you agreed to be liable), then it could perhaps be argued that such release is a &quot;cost&quot; for the purposes of sub-paragraph 1(b) above. However, I would counter-argue that it isn't really a &quot;cost&quot; since it was taken on voluntarily (the landlord could have simply had your dad remain liable which is the default position) and it isn't &quot;reasonable&quot; for the same reason.</p>

<h2>From the description this appears to be the tenant’s problem</h2>
<p>A carpet can be expected to last 5-15 years depending on quality and usage. Signs that it’s reaching the end of its life are wear, damage and tears.</p>
<p>But that’s not what you’re describing. You’re describing carpet that is dirty due to inadequate maintenance, and that’s the tenant’s responsibility. This is a direct result of your dad “did not once clean the carpets. I wouldn't be surprised if he barely used a vacuum cleaner in that time either.” Carpets should be vacuumed about once a week and steam cleaned every 12-18 months.</p>
<p>It’s your responsibility to clean the carpet if you can. If the tenants lack of maintenance has damaged the carpet beyond repair then that is not “fair wear and tear” and the tenant is responsible for its replacement. Or, at least, for a proportion of the cost commensurate with the reduction in life, say half.</p>
<h2>You have taken over whatever liability your dad had</h2>
<p>That’s not even slightly controversial. The landlord accepted you as a tenant only because you agreed to assume the liability of the previous tenant. That’s a valid and binding contract.</p>
<p>Why do you think disability has any role here?</p>
