Legal News and comment

We draw your attention to this recent decision of the Upper Tribunal which has caused a stir amongst leasehold lawyers. It relates to service charges but there is also some argument as to its effect on short residential leases (eg ASTs).

In Beitov Properties Ltd v Elliston Martin [2012] UKUT 133 (LC) it has been decided that the wording of section 47 LTA 1987 means that where any written demand is given to the tenant the Landlord must put his or her actual address on the demand, not a care of address or agent’s address. A demand for service charges will be invalid without.

With regards to ASTs and rental arrears, for rent to be due section 48 LTA 1987 requires only an address for service, which can be a care of address or agent’s address but must be an address in England and Wales.

For good order written demands must contain the Landlord’s actual address. A section 8 notice is arguably a notice rather than a demand. However rather than get into protracted arguments at the point of proceedings for rental arrears, it would be prudent simply to adopt the practice of putting the Landlord’s name and actual address on the agreement and on any section 8 notices. Reference can also be made to the Agents address if appropriate.

According to the Tribunal “The purpose of the requirement in section 47 to include in any demand the name and address of the landlord, in my judgment, is to enable a tenant to know who his landlord is, and a name alone may not be sufficient for this purpose. To provide an address at which the landlord can be found assists in the process of identification”.

Belt and braces – you have been warned.

Filed under: England & Wales

Here is a question to the blog clinic from Stephen who is a landlord:

My tenant did a runner and left my property in a complete mess with belongings and litter strewn inside and out, filthy carpets and the gardens unkept for months. My agent sent me an email saying the tenant had left and the property was in good order with no problems.

When I found out the truth, I contacted the agent. The woman who answered my call admitted the property had not been inspected and that the agent had told her to say that.

Isn’t that a breach of our contract? Isn’t that what I pay them a monthly fee for?

This is a depressing story and I am sure that all the good agents (of whom there are many) will feel frustrated that here is yet another story about letting agents which is putting them in a bad light.  But obviously this type of thing happens, as it has happened to you!

Yes, it is a breach of their contract, although I suggest you go and have a look at your contract  and see what it says.

The question is, what can you do about it?  Any claim brought for compensation for breach of contract must be based on some identifiable loss that you have suffered because of the breach.

For example if the agents have paid the deposit back to the tenants, then that will be a loss you have suffered as that money should have been available to you to go towards clearing up the property.

However you cannot blame the agents for the tenants bad behaviour as such.  Only for any special loss suffered by you because you were not informed about it.

I suggest you use a different agent in future but no doubt you have already decided this!

Photo kindly provided by Sandra Savage Fisher of QuaLETy Ltd

[Edited 16/05/2012 to correct the s.47(2) point]

Beitov Properties Ltd v Elliston Martin [2012] UKUT 133 (LC) is, I suspect, going to cause some sleepless nights for managing agents of long leasehold properties (and, possibly, some other agents and landlords).

Section 47, Landlord and Tenant Act 1987 applies to all demands for rent (whether ground rent or “normal” rent), service charges and administration charges. It requires that all written demands for payment of such sums must “contain… the name and address of the landlord and… if that address is not in England and Wales, an address in England and Wales at which notices… may be served on the landlord by the tenant.” If this information is not provided, then the sums are not due “any part of the amount demanded which consists of a service charge” is not due (S.47(2)).

In the present case, the service charge demands had given the name of the landlord, but not his address. Rather, they gave the address of the managing agents. The LVT held that this was insufficient to comply with s.47 and, hence, the service charges were not due. They rejected an argument that it was good enough to give the details of the agent, holding that the requirement as to give the registered address or trading address (in the case of a company).

The Upper Tribunal dismissed an appeal. The wording of s.47 was clear. The requirement as to provide the name and address of the landlord, not of any other party. If that address was not in England or Wales, then an address in the jurisdiction had to be provided. Either way, the demand had to tell the tenant who the landlord was and where he could be found. In the case of an individual, this would be his place of residence or business. In the case of a company, it would be either the registered office or place of business. None of this had been complied with, so the appeal was dismissed.

The Upper Tribunal did (to my mind, rather unfairly) appear to criticise the LVT for taking such a technical point (“balls aching” as one learned member of the NL team called it). I’m not sure that’s fair. If it’s the law then it’s the law. The LVT can’t chose which laws to enforce and which to ignore. This appears to be a large commerical landlord, with access to professional advice. It’s surely not too much to ask that they get this bit right?

As to the wider consequences. First, I rather suspect this landlord (or, rather the agents) are urgently checking their demands again. But this is a wider issue. I know of many managing agents that take the same approach as in this case. I rather suspect it’ll be a while until this filters into the wider consciousness. Until then, this “balls aching” point is there to be taken.

 

The simple answer to this question is that for most circumstances you do not strictly need a written agreement however if you don’t this can have unintended consequences!

As regular followers of the blog will know the starting point for determining the terms and what you should do in a particular instance is the tenancy agreement. If no written agreement exists it will be a question of trying to recollect what was discussed and possibly looking at any letters or emails about the negotiations to determine the parties intentions. This can result in the terms being unclear particularly if a dispute has arisen.

Assuming we are discussing Assured shorthold tenancies, which are the majority of private letting agreements, as many of you will know this is now the default tenancy in most cases ( for exactly what is an assured shorthold tenancy see the Housing Act 1988 as amended). If you are taking a deposit you are now required to register such a deposit with an approved scheme of which there are three. As part of this process you are required to give certain prescribed information. If you do not do you will not have complied with the rules. Most standard agreements which can be purchased ( such as those we produce and are for sale in our shop on our website) incorporate this information. For this reason giving an agreement, practically, can be easier to ensure the information is given and nothing is missed.

If then you have a written agreement you can specify the exact terms. Whilst you cannot contract out of rules laid down by Parliament, such as the landlords responsibility to keep the property in repair, you can make sure everything is clear. This can be things as diverse as the length of term and break clauses through to restrictions on smoking or loud music (although you might want to have a look at the Office of Fair Trading (OFT) guidelines to check the likely enforceability of your clause). Such comprehensive agreements allow you to effectively manage your investment and to make sure that both sides are clear as to what to expect from the other. Having an effective list of rules of occupation can assist in helping any potential disputes being seen off as having a clear reference to point to.

Whilst sorting out the paperwork can sometimes appear to be a chore if and when you are faced with a dispute it is vital. As we have repeatedly blogged the courts will take the agreement as the starting point. If you have no agreement in writing often the courts will find it difficult to impose onerous terms on one or other party unless it can be shown unequivocally that this was agreed. Whilst relying on terms other than rent or operation of a break clause to evict can be difficult in our experience without a rewritten agreement it is almost impossible.

So take 5 minutes and make sure you have an agreement which is up to date and covers what you want and require.

Filed under: England & Wales Tagged: break clause, deposits, Housing Act 1988, Housing Act 2004, OFT, tenancy agreements, Unfair Terms

This is an important case on costs on settled Judicial Reviews. Following on Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 [Our report] and Lord Jackson’s view on JR costs, the Court of Appeal in M v London Borough of Croydon [2012] EWCA Civ 595 has given general guidance for awarding costs. The principles should also apply to the equally troublesome area of costs in settled s.204 Housing Act 1996 Homeless appeals.

The actual judicial review that gave rise to this hearing was an age assessment case which was conceded by the Local Authority following a second expert’s report. A consent order was agreed, but no agreement on costs. Submissions on paper resulted in a first instance order that:

‘Having considered the submissions on costs made by both parties and having regard to the principles referred to by the court in R (Boxall) v Waltham Forest LBC (2001) 4 CCLR 258 and to the caveat added by Hallett LJ in R (Scott) v Hackney LBC [2009] EWCA Civ 217 at 51 – to the effect that a judge must not be tempted too readily to adopt the default position of making no order for costs – I accept that this is the just outcome here. As has been submitted for the defendant this is not a case where the case was obvious from the outset. And in view of the dynamic development of this area of the law while the claim was live and the burdens on the defendant which are referred to in paragraph 12 of its submissions I do not consider the defendant’s conduct in the proceedings has been such as to justify an award of costs being made against it.’

The Claimant appealed, arguing that:
(i) The judge failed to address the appellant’s primary argument that costs should follow the event.
(ii) The judge misdirected himself in refusing to award costs because the outcome was not obvious from the outset.

Permission to appeal was given in light of Bahta.

I’ll turn to the specific points on this case at the end of this note, including the basis of the arguments. However, the primary interest is in what amounts to guidance set out by the Court of Appeal on costs in settled Judicial Reviews.

The Master of Rolls at paras 60 to 63, says:

60. Thus, in Administrative Court cases, just as in other civil litigation, particularly where a claim has been settled, there is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant’s claims. While in every case, the allocation of costs will depend on the specific facts, there are some points which can be made about these different types of case.

61. In case (i), it is hard to see why the claimant should not recover all his costs, unless there is some good reason to the contrary. Whether pursuant to judgment following a contested hearing, or by virtue of a settlement, the claimant can, at least absent special circumstances, say that he has been vindicated, and, as the successful party, that he should recover his costs. In the latter case, the defendants can no doubt say that they were realistic in settling, and should not be penalised in costs, but the answer to that point is that the defendants should, on that basis, have settled before the proceedings were issued: that is one of the main points of the pre-action protocols. Ultimately, it seems to me that Bahta was decided on this basis.

62. In case (ii), when deciding how to allocate liability for costs after a trial, the court will normally determine questions such as how reasonable the claimant was in pursuing the unsuccessful claim, how important it was compared with the successful claim, and how much the costs were increased as a result of the claimant pursuing the unsuccessful claim. Given that there will have been a hearing, the court will be in a reasonably good position to make findings on such questions. However, where there has been a settlement, the court will, at least normally, be in a significantly worse position to make findings on such issues than where the case has been fought out. In many such cases, the court will be able to form a view as to the appropriate costs order based on such issues; in other cases, it will be much more difficult. I would accept the argument that, where the parties have settled the claimant’s substantive claims on the basis that he succeeds in part, but only in part, there is often much to be said for concluding that there is no order for costs. That I think was the approach adopted in Scott. However, where there is not a clear winner, so much would depend on the particular facts. In some such cases, it may help to consider who would have won if the matter had proceeded to trial, as, if it is tolerably clear, it may, for instance support or undermine the contention that one of the two claims was stronger than the other. Boxall appears to have been such case.

63. In case (iii), the court is often unable to gauge whether there is a successful party in any respect, and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases, it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win.

And Stanley Burnton LJ states at paras 75 to 77:

75. The consequence of our decision should be a greater willingness on the part of the parties to judicial review proceedings, at first instance and on appeal, to agree not only the substantive provision of the order to be made by the Court, but also the issue of costs. Settlements in which the question of costs is left to be determined by the Court at a later date are common, and perhaps too common. Parties can no longer assume that the likely order is no order as to costs, even where one party or another has conceded the whole, or substantially the whole, of the other side’s case.

76. A successful negotiation of costs issues is likely to be cost effective, saving the costs of subsequent written submissions and saving the time of the judge who is required to determine costs. It is in both parties’ interests to address the question of comprehensive settlement as early as possible.

77. Where the parties are unable to agree costs, and they are left to be determined by the Court, it is important that both the work and costs involved in preparing the parties’ submissions on costs, and the material the judge is asked to consider, are proportionate to the amount at stake. No order for costs will be the default order when the judge cannot without disproportionate expenditure of judicial time, if at all, fairly and sensibly make an order in favour of either party. This is not to say that there are not cases where the merits can be determined and no order for costs can be seen to be the appropriate order; but in such cases that order is not a default order, but an order made on the merits.

In this particular case, with quite a complex history, the Defendant had argued that
i) the respondents settled on the assumption that there would be no order for costs.
ii) There had been a change in the perceived legal position as a result of the Supreme Court’s decision in R (A) v Croydon in November 2009.
ii) There was a substantial amount of evidence and the issue was diffcult, including the change in the weight to be given to Dr Birch’s views, following the judgment in R (A) v Croydon and R (WK) v Kent County Council [2009] EWHC 939 (Admin).

This being in effect a restatement of the Boxall based arguments that had been successful at first instance.

The Court of Appeal’s view was summed up by Stanley Burton LJ as follows:

The respondents’ maintenance of their position was entirely reasonable while the law was as it was generally thought to be before the decision of the Supreme Court in R (A) v Croydon. That decision led eventually to the order His Honour Judge McMullen QC of 26 July 2010. The respondents then had to reconsider their case, if they had not already done so. The appellant’s reliance on the evidence of Dr Birch may have been ill-advised, but ultimately it was his case, based on his account of his age, that prevailed. The respondent agreed not merely to re-assess his age, but that his age was as he contended it to be: i.e., they conceded the entirety of his claim.

Costs to the Claimant.

Comment
The judgment refers to Sir Rupert Jackson’s cost review, where he states

‘The Boxall approach made eminently good sense at the time that case was decided. However, now that there is an extremely sensible protocol in place for judicial review claims, I consider the Boxall approach needs modification, essentially for the reasons which have been urged upon me ….
. . . in any judicial review case where the claimant has complied with the protocol, if the defendant settles the claim after (rather than before) issue by conceding any material part of the relief sought, then the normal order should be that the defendant pays the claimant’s costs. A rule along these lines would not prevent the court from making a different order in those cases where particular circumstances warranted a different costs order.’

The Judgment also highlights the increasing number of cases settled save for costs, where the courts have had to deal with written submissions on costs. This increase was clearly something of which the Court of Appeal disapproved.

The result, being an extension of Bahta but falling perhaps just a little short of the Jackson proposals, is very useful for claimants. It makes clear that the usual Defendant arguments (e.g. that settlement was a practical or commercial decision, that it had nothing to do with the merits of the claim and that it was not at all clear that the Claimant would win), will not be sufficient to result in no order as to costs. The usual principles of civil litigation costs will apply. Boxall is effectively distinguished as being a case where the Claimant had only succeeded on a lesser part of the Claim.

The Defendant’s frequent tactic offer of a settlement on the basis of no order as to costs was always difficult for the Claimant’s solicitors to resist, given the client’s interests. However, this judgment now puts any settlement negotiations on the basis that the default position is that the Claimant should have their costs and that the Defendant will have to have a very strong reason to seek to depart from that.

The same principle should apply to s.204 appeals, as they are based on judicial review principles. There seems to be no good argument why a s.204 appeal should not have the ‘ordinary civil litigation principles’ apply equally.

Congratulations to Robert Latham and Hansen Palomares for the appellant on this result and for finally bringing some sanity to this costs issue.

If you have been reading the Landlord Law blog for a while you will probably have seen from time to time the rather erudite comments from specialist property litigator Simon Parrott.

In fact that is how I met Simon – through his insightful comments on the blog.

Sharman Law

Simon is a solicitor with Sharman Law Solicitors in Bedford where he heads up their property litigation team. His main specialisation is dealing with disputes involving property, particularly landlord and tenant disputes concerning residential and commercial properties.

As well as dealing with dispute cases, Simon regularly presents seminars on property matters for landlords and letting agents, and he brings a practical approach to demystifying and explaining the law. Sharman Law have an excellent newsletter service, which Landlord and letting agent readers may be interested in signing up to  here.

I had a feeling that Simon would be a very good person to help out with the agency law content on my Easy Law for Landlords  course, but I wasn’t sure whether he would be able to take part, knowing how busy he is.  So I was delighted when, not only did he agree with alacrity, but he also made suggestions for some excellent additional content on agency matters which we will be developing together for module 10 of the course.

Course content – agency law

Simon will be recording an interview with me shortly, on the practical aspects of agency law and how it relates to the property letting industry today, which will form part of the course content for module two.

He will also be taking two of the tutorials and will be around on the discussion forums from time to time to answer questions.

I am really excited that such a knowledgeable solicitor as Simon will be taking part in the course, and I know that this will add a huge benefit to course students.

However, Simon is not the only solicitor who will be helping me. Watch out for more news coming soon.

To find out more about the Easy Law for Landlords course >> click here.

Two interesting cases have been delivered by the ECHR in the last few weeks: Mago and others v Bosnia-Herzegovina and Yordanova v Bulgaria.

Mago

The applicants in Mago held tenancies for life of flats within Bosnia-Herzegovina (with the exception of Mrs Mago, whose husband was the tenant) and they were compelled for varying reasons to leave their  homes following the outbreak of the war in Bosnia-Herzegovina in 1992. Security of these flats could be lost in a limited range of circumstances, including where the flat was left unoccupied for a continuous six month period or more. Once the tenants left, their properties were treated as abandoned by the authorities.

After the end of the war, the applicants made claims for restitution of their former homes. The Statute under which they made these claims contained an exception for those who served in foreign armed forces after 19/5/92. The majority of the applicants were members of the Yugoslav People’s Army and their claims and appeals were dismissed because they fell foul of this exception. The applicants petitioned the ECHR alleging breaches of Art 1 Protocol 1, Article 8 and Article 14.

The Court held that there had been no violation in three of the complaints as the applicants in question had been provided with alternative flats in Serbia and Montenegro. Although the deprivation of property rights might in normal circumstances lead to a finding of a violation, the exceptional circumstances of the case and the fact that the loss of the accommodation was the result of war and the dissolution of the former Federal Republic of Yugoslavia meant that the Respondent was under no obligation to make reparations under Art 1 Protocol 1 (para 104)

In Mrs Mago’s case, the Court held that the exception had been incorrectly applied as she was entitled on her divorce from Mr Mago to inherit the rights to the flat. Mrs Mago was not involved with any foreign forces and the Court accordingly held there had been a breach of Art 1 Protocol 1. The two remaining applicants (Radovic and Krstevski) had been members of the VJ forces and the Court accepted the argument that membership of certain armed groups depended largely on one’s ethnic origin. The Court held that the measures depriving the applicants of the right to restitution had the effect of treating individuals differently on ethnicity grounds and there could be no justification for deprivation in these circumstances. The Court found a violation of Art 1 of Protocol 1.

The overall award ranged from EUR 58000 to 90000.

Yordanova

This claim was brought by members of the Bulgarian Roma community, who inhabited vacant land in a district of Sofia from the 1960s onwards and constructed tenements (without the permission of the authorities) for between 200 and 300 people. The State sold the land occupied by the community to a private investor in 2006 and the Courts ordered the community’s expulsion on the grounds that they had no proprietary interest in the land, despite the time they had already lived there with the State’s acquiesence.

Nevertheless, the eviction was delayed pending a decision whether they should be rehoused and the applicants in the meantime petitioned the ECHR on the grounds of breaches of Art 1 Protocol 1, Articles 3, 8 and 14.

In deciding under Art 8 whether the authorities were pursuing a legitimate aim, the Court rejected the applicants’ argument that the State was motivated by a racist agenda and it accepted that the buildings were unlawfully built, that they were structurally unsafe and sub-standard and that there were inadequate sanitary facilities.

The relevant question for the Court was whether expulsion was necessary in a democratic society. The Court noted that alternative methods of dealing with the risks to health and safety had not been properly explored (for example legitimation of the community’s occupation of the land, improving sanitation and providing adequate re-housing). The Respondent was also criticised for describing the risk of homelessness as “irrelevant” when the principle of proportionality required due consideration to be given to the consequences of removal (para.126).

Furthermore, the Court recognised (para. 129) that “Such social groups, regardless of the ethnic origin of their members, may need assistance in order to be able effectively to enjoy the same rights as the majority population…..In the context of Article 8, in cases such as the present one, the applicants’ specificity as a social group and their needs must be one of the relevant factors in the proportionality assessment that the national authorities are under a duty to undertake.”

This factor provides an important qualification to the principle that there is no duty under Article 8 to be provided with a home and that “an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases”.

Accordingly, the Court held there to be a violation of Article 8 and it declared that either the 2005 order be repealed or it be suspended pending implementation of Convention-compliant measures (the Court having recognised that Art 8 gave no right to occupy land unlawfully in perpetuity). No damages were awarded.

Footnote

The ECHR has recently posed questions to the parties in the controversial night-time care case of McDonald v UK, namely:

1. Did the withdrawal of the night-time care service interfere with the applicant’s right to respect for her private life under Article 8 of the Convention? If so, has there been a violation of Article 8 of the Convention (a) from 17 October 2008 to 4 November 2009; and (b) from 4 November 2009 onwards?

2. Was the respondent under a positive obligation under Article 8 of the Convention to provide the applicant with a service which enabled her to live with dignity? If so, in withdrawing the night-time care service was it in breach of this obligation?

We’ll stay alert for any developments in this one.

 

 

 

 

 

Just a brief note on this. As yet no transcript. This is another example of a fairly robust antisocial behaviour decision being upheld on appeal and it reinforces the well established principle that an appellant who is essentially attacking the discretion of the Judge below will find no sympathy in the Court of Appeal.

The background was that a long standing secure tenant had lived in her flat with her three children. Her youngest son aged 19 had been involved in some offending including use and possession of cannabis and had some connection with firearms and ammunition found near the premises. B&D sought possession for both rent arrears and antisocial behaviour. On the first consideration, the court granted an ASBO against the younger son and adjourned the possession claim. Then when the matter came back on, the younger son had been involved in further offending and had breached the ASBO. However, just before the returned hearing, the Tenant had arranged for him to reside elsewhere and while she conceded that the grounds for possession were made out, she asserted that her son would continue to live elsewhere thereby ceasing the nuisance and sought a suspended order. The Judge appears to have had none of this, finding that the Tenant’s actions were too little too late and that he had no confidence that she could do anything to control her son’s escalating conduct. He duly made an outright possession order. She appealed on the basis that the Judge had failed to properly consider either the measures she had put in place to deal with the problems and her own personal circumstances.

The appeal was dismissed. There had been no error of law and the appeal was an attack on the exercise of discretion by the Judge. The Court of Appeal commented that while the judgment did not expressly state that the Judge had taken account of the measures put in place by the Tenant, it was clear from the judgment overall that he had  a very clear grasp of the case and it was material that he had adjourned the first hearing having impressed upon the Tenant how serious he found the antisocial behaviour to be. There were no grounds to interfere with the judgment.

This is a good example of the ever shortening judicial fuse on antisocial behaviour and may signal that advisers need to be giving much starker warnings much earlier to clients in this position.

The 1st May 2012 saw the Protection of Freedoms Act being given Royal Assent. Whilst covering many areas this also introduced further regulation of wheel clamping and has, in effect, outlawed wheel clamping of vehicles on private land. The actual offence is set out in section 54 of the Act and provides that anyone found guilty of an offence under this Act would be liable for a fine.

For many Private Estates wheel clamping has been used as an effective tool to prevent unauthorized third parties parking without authority. Clearly they will need to look again at what steps are taken. The Act does make clear that the use of a fixed barrier would not be a an offence if the barrier was in place when the vehicle was parked whether in use or not. For many estates this is not a desirable option but other options are limited.

Clearly for any estates currently using wheel clamping they will need to liaise with their provider and see what if any alternative services they may offer such as imposition of fines etc. Sadly it seems that the actions of “cowboy” clampers have meant that this method of protecting rights has now been removed.

Filed under: England & Wales Tagged: legislation

Here is a question to the blog clinic from Paul who is an unhappy landlord:

We paid nearly £1000 for full mangement fees and rental guarantee to the estate agents to find a tenant.

One was found and wanted a 12 month contract which we agreed to, the tenant left our property 6 months early owing a potential £4900 in rent.

Have been advised by a solicitor all the rights are with the tenant so pursing them for money may not be an option grin and bear (they moved to London with a better job offer) the tenant agreed to pay any additional costs to get another tenant to take the agreement on and we were happy with that so we weren’t losing money.

He now has refused to pay this, the estate agent has been in touch with them and they refuse to pay anything bearing in mind he has a got a job on a very good wage.

So we said we will claim on the insurance the estate agent sold us, they said we cannot claim because the tenant has moved out “so what” we were sold this £200+vat that it would cover any rent arrears whatever the circumstances.

So now they want us to pay another £350 to find another tenant.

How can I pursue the tenant for the loss of rent and can I claim my money back for what I think is miss sold insurance.

It rather look from what you say as if the tenant paid rent up to the time he left, so the loss of rent you are referring to is future rent.

Subject to what was agreed with the tenant at the time he left, he will be liable for this but on a month by month basis.  You cannot claim the whole of the next six months rent from him up front just because he moved out early.

So what landlords often do is wait until the property is re-let and then claim the rent up to the date the new tenancy agreement is signed, from the tenant.  This is something which should be recoverable from the tenancy deposit.

If claiming from the deposit is not an option for some reason, then you can (subject always to what you or your agents agreed with the tenants at the time)  bring a claim in the Small Claims Court.  If your tenant has a good job he probably won’t want a CCJ registered against him.

It is impossible to advise properly on this without more information but I suspect you will be able to claim for unpaid rent up to the time the property is re-let and any expenses incurred by you finding a new tenant.  But you need to check carefully the terms of your tenancy agreement.

So far as the insurance claim is concerned, you need to check the terms of the policy carefully.

If the policy was inappropriate for you, then you may have a claim against the letting agents for professional negligence.  Also maybe if they encouraged you to act in a way which would make it impossible for you to claim under the policy (f this is in fact what happened).

De Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin)

This was a judicial review of RBK&C’s refusal to provide support under s.21 and s.29 National Assistance Act 1948 and indeed to carry out an assessment under s.47 of the National Health Service and Community Care Act 1990.

Mr De A is a Portuguese national. He lived in the UK from 1998 to 2001 and from 2008 to date. He worked during the first period and for a year after his return. Mr De A had contracted HIV and AIDS. His health deteriorated so that he was not able to work. His prognosis in October 2010 was that he had about a year to live. At the time of the first hearing in this case in November 2011, his prognosis was about 6 months.

Mr De A was evicted from his private accommodation. With the help of friends he was provided with food and accommodation in a hostel for a while, but this could not be sustained. Mr De A applied to RBK&C for assessment and assistance under the National Assistance Act 1948. His sole income was DLA, the DWP having decided he was ineligible for Income Support.

After a couple of assessments, RBK&C decided that he was not in need of care and assistance and in any event, he was ineligible by reason of para 5, Schedule 3 of National Asylum and Immigration Act 2002 as he “has the nationality of an EEA State other than the United Kingdom”.

Mr De A applied for judicial review.

ON the need for care and assistance RBK&C had found that Mr De A was, at the times of the assessments, able to look after himself and had no need for care and assistance. This despite medical reports and Mr De A’s own report being that he needed significant support with shopping, personal hygiene, laundry and meal preparation. IN the JR, RBK&C’s case was that

the evidence indicated that his needs fluctuated. As at the date of assessment, the Defendant [Mr De A] was able to live independently with minimal support, and therefore was not “in need of care and attention”. The fact that he might deteriorate at a later date did not trigger a duty under s.21(1)(a) at the present time.

The Court rejected this line of argument

65. In my judgment, the Defendant misdirected itself in the way it assessed the Claimant’s needs under s.21(1)(a). First, it is not a pre-requisite of eligibility under s.21(1)(a) that the person is incapable of performing a domestic task himself. Lady Hale gave the example of “household tasks which an old person ….can only perform with great difficulty”. In the Claimant’s case, it was sufficient that, because of his fragile condition, he reasonably required support with domestic tasks, such as shopping, cleaning, cooking etc.

66. Secondly, the nature of the Claimant’s illnesses meant that the level of his fatigue, weakness, pain and secondary infections fluctuated from time to time. It followed that his ability to look after himself also fluctuated, from day to day, from week to week and from month to month. This is not an unusual feature of long-term illnesses, and LAC 93 (10) paragraph 2(5) expressly approved the provision of accommodation for the purpose of caring for those who are ill. A fluctuating need does not necessarily take a person outside the scope of s.21(1)(a). In Mani for example, the claimant needed help with household tasks “on days when he is in pain” (at [2]), i.e. not all the time.

The principles in R (M) v Slough Borough Council [2008] UKHL 52 should be applied, both as to the threshold for s.21(1)(a), met “as soon as a person can be said to be in need of some care and attention, even to a relatively small degree” [Lord Neuberger in M] and considering current and prospective need:

Having regard to the principles set out in M in relation to current and prospective need (at [35], [55]), it will be a question of fact in each case whether a person’s condition is such that he should be treated as “in need of care and attention” even though the extent of his need for care and assistance fluctuates from time to time. For example, in R (Nassery) v Brent LBC [2011] EWCA Civ 539 the Court of Appeal upheld the Council’s assessment that, despite the claimant’s sporadic past episodes of mental disorder, he was not “in need of care and attention” at the time of its assessment. In this Claimant’s case, given the seriousness of his illnesses, his ongoing, debilitating physical symptoms, his frequent periods of acute illness requiring hospitalisation, and his very poor prognosis, I consider it was irrational for the Defendant to conclude that he was not “in need of care and assistance” when there was ample evidence that he had a continuing need for support in day-to-day living, albeit fluctuating in extent from time to time, depending upon his state of health.

On the issue of eligibility and human rights, it was common ground that Mr De A was ineligible for assistance under s.21(1)(a) NAA by reason of Schedule 3 to the National Asylum and Immigration Act 2002. The issue was how far it was necessary to provide assistance in order to avoid a breach of Mr De A’s convention rights, specifically Article 3 and Article 8.

RBK&C conceded that if a need for assistance was found then there would be a potential breach, following R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396. However, RBK&C maintained that such a breach could be averted by Mr De A’s return to Portugal, where he would be eligible for appropriate support services, relying on R (Kimani) v London Borough of Lambeth [2003] EWCA Civ 1159 and N v UK (2008) 47 EHRR 885.

RBK&C further argued that

in deciding the human rights issue, the court’s role was limited to determining “whether there is an error of law in the council’s human rights assessment on traditional judicial review principles” (skeleton argument, paragraph 5). It was for the Defendant to decide, under paragraph 3 of Schedule 3 to the NIAA 2002, whether the making of s.21(1)(a) arrangements was “necessary for the purpose of avoiding a breach of a person’s Convention rights”. The Court did not have the information required to make this judgment, nor was it entitled to substitute its judgment for that of the Defendant. It followed from this analysis that the issue had to be decided on the basis of the evidence available to the Defendant at the date it made its human rights assessment, in October 2011, not 6 months later.

The Court held that this was too restrictive an interpretation of the Court’s role:

As the Court is itself a public authority for the purposes of the Human Rights Act 1998, it is subject to the duty in s.6 not to act incompatibly with Convention rights. It must also ensure that other public authorities, such as the Defendant, do not act incompatibly with Convention rights. This is an essential part of the way in which the ECHR is enforced in domestic law.

Article 3 is an unqualified right. It was not proper that the Court should not defer to the judgement of the local authority, “if the Court is satisfied that the Defendant’s acts or omissions are exposing the Claimant to an imminent risk of suffering cruel, inhuman or degrading treatment, it must act to prevent such a breach of Article 3 from occurring”. And

When considering a qualified right, such as Article 8, the Court must consider the legitimate aims of the decision-maker and the proportionality of the interference with the right to family and private life. However, it should not adopt a traditional judicial review approach.

Huang v Secretary of State for the Home Department [2007] 2 A.C. 167 and Pinnock adopted.

On the evidence, Mr De A’s physical and psychological condition, his experimental treatment and the presence of his support network in England all strongly suggested a considerable degree of suffering if her were to return to Portugal at this stage. The available services in Portugal, and the time it would take to receive them, were not comparable and would involve delay.

Although Portugal is an EU country and signatory to the ECHR, with a health and welfare system, it is too late for this impoverished Claimant to access the immediate support which he needs on his return, because of his weakened physical condition; his vulnerable mental state; the absence of any friends or family in Portugal to assist him; and the ‘cumbersome’ and slow assessment procedures in Portugal (for exemption from health care charges, eligibility for financial benefits, and any type of accommodation). The Defendant’s offer of financial support for 4 weeks is insufficient, as the evidence is that it will take much longer than that for him to obtain the accommodation and benefits he needs, and so there is, in my view, a real risk that the Claimant will end up sleeping rough on the streets. As M said; “[t]he effect of what would essentially be a forced return of a sick man …would be to condemn this man to a very likely relapse, a hastened death, and a lonely end to what has been a brave struggle to live with dignity.”

Following D v United Kingdom (1997) 24 EHRR (and BB v France (see N v UK at D68), the case was exceptional because Mr De A was at the end of his life. It was not simply a matter of the lack of availability of treatment to prolong life, as in N v UK App. No. 26565/05. The case fell within the exceptional class described by Lady Hale in N v Secretary of State for the Home Department [2005] 2 AC 296 [at 69]:

“…the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity.”

Refusing to provide accommodation and support, but forcing Mr De A to return to Portugal would be a breach of Article 3, involving inhuman treatment.

Article 8 was also interfered with, but the interference was lawful under Schedule 3 to the NIAA 2002. The question was therefore whether the interference would be necessary and proportionate.

RBk&C argued that “it is exercising a legitimate aim, in the interests of “the economic well-being of the country” in seeking to minimise its expenditure on social services, and prioritising its scarce resources for the benefit of UK nationals”. R. (Clue) v Birmingham City Council [2011] 1 W.L.R. 99 in support.

Weighing against this was the likely limited time support would be required and the costs that RBK&C would incur in facilitating Mr De A’s move to Portugal. Any saving to the public purse would be minimal.

In addition, it was appropriate to weigh in the balance that Mr De A had entered the UK lawfully and worked here.

Held on Article 8:

In my judgment, the Claimant [Mr De A] is justified in submitting that any potential saving to the public purse will be minimal and does not reasonably justify a decision which will have such severe consequences for the Claimant. The Claimant’s terminal illness means that he faces an undignified and distressing end in Portugal, struggling to find any accommodation and means of support, and parted from his existing support network of friends and healthcare professionals.

Held overall:

a) the Defendant’s decision, of 27 October 2011, that the Claimant had no eligible needs requiring care and attention within the meaning of s.21 NAA 1948, was unlawful;

b) the Defendant’s decision, of 27 October 2011, that it was not necessary, within the meaning of paragraph 3 of Schedule 3 to the NAIA 2002, to make arrangements for the Claimant under s.21 NAA 1948 for the purpose of avoiding a breach of his Convention rights, was unlawful;

c) the Defendant’s refusal to make arrangements for the Claimant under s.21 NAA 1948 is incompatible with the Claimant’s rights under Article 3 and Article 8 of the ECHR, contrary to s.6(1) Human Rights Act 1998.

The 8th May you may ask? What happened to Monday?

Monday, you may remember was a Bank Holiday.  A real honest to goodness traditional bank holiday at that, with rain.

I decided to have a bit of a rest and not tackle the garden after all.  Getting into the spirit of the thing, I decided not to do a blog post either …

So that brings us (on the blog) to

Tuesday

How much do we need to pay to get this sitting tenant out?

A blog clinic question this one, about a landlord, a sitting tenant and buying out.  Take a look at what else it was about here …

Wednesday

Problems pending in the County Courts from now until August

Yes, you heard it here first peeps, the courts are going to be DIRE over the summer, and God help you if you have a trial pending in London.  You’ll be lucky if you get your hearing before Christmas.  Read more (if you can bear it) here ..

Thursday

Do you know which property type you have?

A quick exposition here folks, so if you think you may need to work this out quickly one day, maybe a post to book mark.  Take and look and see here …

Are these agents charges justified?

Another blog clinic question.  This post has a brilliant comment from letting agent Jamie which is much better than my answer so read it for that!  See it here…

Friday

Ben Reeve Lewis Friday Newsround # 57

Ben ‘comes out’ here and confesses his heavy metal past.  Purple spiky hair??  He also wants to know what we would do if we were Shapps.  Hmm.  If you WERE Shapps, you would think you were a jolly nice fellow and no doubt carry on doing just as you are. Read more here …

 

Further reading

• Property 118 come up with some more regulations for benighted landlords to comply with
• A somewhat depressing article in the Guardian on beds in sheds
• A fraudulent letting agent escapes jail in this news item

Catch up with the best news items on the web specially selected for you and placed on the Landlord Law facebook page

Picture – rain

Our attention was drawn to a decision in the Medway County Court, presumably because it considered a proportionality defence. I’m not sure there’s much to see there — one of the team said that he was not “remotely excited about it”.

But it caught my eye. To be fair, one cannot always tell from a short judgment of this kind exactly what happened, but it gives the impression that landlord and tenant law was, at best, misunderstood. So it seemed like a golden opportunity to set the record straight.

The defendant’s father and mother had lived in the property under an assured tenancy. Sadly, the father died. The mother succeeded under s.17 of the Housing Act 1988. Later on her son, the defendant, came to live with her and look after her. The mother died. The landlord eventually decided that the defendant would not be allowed to carry on living in the property and served a notice to quit which duly expired. They claimed possession on the basis that the son was a trespasser.

But why? Assured tenancies are not magic. They have some magical properties given to them by the Housing Act 1988 but underneath they are still perfectly normal tenancies which means they are an estate in land capable of being inherited.

This means that when the defendant’s mother died, her tenancy would pass under her will or intestacy. If the mother had not been a successor, the magic of s17 might have come in to play, but she was so it did not. From the facts of the case it seems overwhelmingly likely that the son was her heir. He would then inherit the tenancy and become the tenant.

As an aside there are some subtleties here which I am not about to delve in to, such as the nature of a heir’s rights under an intestacy and the role of the Public Trustee. Readers will be familiar with the and all the usual rules about giving notice after a tenant has died.

It seems likely that the defendant was a tenant of the property and, since he lived there, almost certainly an assured tenant. You cannot end an assured tenancy by giving notice to quit. It may be that the district judge inquired into this possibility and the matter was dealt with but not mentioned in the judgment, but it really ought to have been.

The right way to evict an heir in these circumstances is of course to use Ground 7 of Schedule 2.

[Ben Reeve Lewis is going a bit deaf, I SAID, BEN REEVE LEWIS IS GOING A BIT DEAF  ..]

I’m going deaf. Honestly. Every few years I had to have my ears syringed and was always amazed at the clarity that comes after the act. You can even hear the breeze rustling past your lug ‘oles and suddenly the volume of the TV where you turned it off last night is deafening.

I recently had them syringed again and was disappointed to notice little change.

Ben’s band

Between working in homelessness night shelters and becoming a homelessness case worker I had a 3 year sojourn out of housing and became a professional bass guitarist.  I’m the one in the white leather jacket who slowly morphs over the years into looking, as the Daily Mirror’s music reviewer said at the time, “Like a zombie Nazi”

It was a heavy metal outfit, not my favourite type of music but a pro job is a pro job. Trouble is I think that’s when I started to go deaf. Three years standing in front of a bank of towering Marshall stacks just trying to get over the sound of those bloody drums.

As a youth I would be chewed out by my parents for listening to The Clash, “Turn that racket down”.

On Saturday I got chewed out by Frazzy for having the radio in the kitchen too loud, I was listening to people talking quietly on ‘In Business’ on the radio. Is this how far I have come? Getting told to turn down Radio 4? All that’s left to me now are the Werthers originals, the spiky purple hair having long since retired.

Frugal innovation

But ‘In Business’ were running a fantastic piece about frugal innovation. No point me putting the link to the programme here it will be down by now but there is an article on it in Forbes Business Magazine last week

Frugal Innovation is also commonly known as ‘Jugaad’, a Hindi word meaning “Low cost fix-around” and is a new business model which looks at small scale local solutions that don’t require massive finance or input. Immediate localised solutions to pressing local problems, created by people in those communities who know best what needs to be done.

Cameron is a big fan and the Jugaad model is probably the inspiration for Localism.

I am enthusiastic about such front-line led ideas and an article title on 24 Dash titled, ‘What would you do if you were Grant Shapps?  connected with my thoughts on Frugal Innovation.

What would you do if you were Schapps??

Of course my immediate thought upon reading “What would you do if you were Grant Shapps?” was that I could load the pistol before passing it to him to leave him alone in the study.

But then as I day-dreamed about my footsteps faltering down the corridor at the sound of the single shot (maybe 2, you couldn’t trust him to do anything right) I realised that all that would happen is that Cameron would simply replace him with a clone. A smiling new Tory prefect, all earnestness and just the right side of middle age.

Nothing would change because for politicians, politics is their career. Housing is mine and we see different solutions. For any politician, solutions will only be workable where they fit into the grand design of running the country as a whole. For people involved in housing we can see the solutions as obvious as anything, just sitting there waiting to be picked up.

This was the basis of the answers to the question in 24 Dash’s article, effectively looking for Jugaad in housing.

The Answers

The 5 candidates responding to the question all displayed great awareness of how housing problems impact on communities and what to do about it.

Joanne Claridge of Stockport Homes talked of the false economy of cutting certain services that would normally be perceived as woolly, when she says:

“The evidence for wider multi-agency working is compelling as she cites that a typical family could cost in excess of £150,000 to support currently. “Getting in early and offering a keyworker service like Act Family costs as little as £16,000,”

Money well spent.

Trainee solicitor from Midland Heart housing association Hannah Boyd suggested creating separate housing courts to tackle specific problems with specialist staff and systems in place just for housing. This would she argues get around costly delays and adjournments and speed things up all round:-

“Constant adjournments and constant challenges and appeals is all using money that could be better spent in our communities. With a Housing Court, there’d be less people going to court and less legal action in the end.”

I heartily agree.

Bedroom tax

Staying with 24 Dash I read another excellent piece by Ross MacMillan  who sat in on an inter-organsiational meeting in Sheffield on how the various housing concerns around the table will deal with bedroom tax when it comes in next year.

Bear in mind that social housing in the North consists largely of family homes and moving people to smaller properties, which they don’t have, to avoid the reductions from universal credit is going to be a major headache for the landlords and their tenants.

Halton Housing Trust’s Nick Atkin pointed up part of the problem when he said:-

“If we weren’t to re-house anybody else off our waiting list – and just re-house those under-occupying – it would take us seven years,”

Obviously during those 7 years everyone would be losing around £14 per week per bedroom from their already minimal budget. Rent arrears accrue and the housing organisation runs into deep trouble along with the tenants.

Steve Hepworth, the Operational Director of North Lincolnshire Homes added:-

“We’ve got around 3,900 three-bedroom properties – and 1,049 of those households are on benefit and under-occupying. Within those, a lot of them are parents with children. So if they want to move it’s a two-bedroom home they require. We’ve only got 49 two-bedroom houses”

The bit that really points up the nonsense of this is when Ross states:

“Equally challenging is the families who have different sex children under nine? The Department for Work and Pension’s plans state that these children would have to share a room, and thus the family would have to move to a smaller home, then potentially move again as the eldest child turns 10. The estimated £1,000 cost of moving – which some landlords are funding – is more than the annual cost those families would contribute if they stayed and lost benefit”.

This is the hard, front-line end of broad brush stroke policies to introduce a bedroom tax. Nice headline grabbing policy for a country stripped to the bone, a population cutting back on food to meet the new SVR mortgage rates with little patience for those who receive state handouts. A policy that neatly pours scorn on those under-occupying without taking into account the logistics of how it will work in practice.

The polar opposite of Jugaad and enough stupidity to make you weep don’t you think?

Maybe losing my hearing by the day is becoming a blessing. I wont have to listen to all that rubbish that our government spouts.

And as if that isnt bad enough, with my impending deafness in mind I also read that the price of hearing aids has doubled recently. All over the country outraged deaf people are saying “HOW MUCH?????”

Don’t blame me, the joke was there, it would have been rude not to pick it up.

Ben Reeve Lewis

Ben’s runs Home Saving Expert, where he shares his secrets on defending people’s homes from mortgage repossession Visit his blog and get some help and advice on mortgage difficulties, catch up with him on Twitter and check out his free report “An Encouraging note on Dealing with your Mortgage Lender” and have it sent right to your inbox.

Picture : the clash

Here is a question to the blog clinic  from Bruce on behalf of a friend

My friend had a tenancy with a National Franchise. The initial Agreement was for 6 months and they insisted she renew every 6 months being unwilling to grant a longer period and charge £40 each time.

She found a council house and wanted to leave early but they insisted on charging her rent until a new tenant was found. Now she has moved out two months before the end they are insisting on charging her a release fee of £200 plus Vat.

In the paperwork they have sent her is a copy of a Particulars of the Deposit Scheme which she was asked to sign in 2010 showing it is lodged with the DPS scheme. This paper states it is giving her the statutory information they need to but there is no scheme rules attached or details of what to do if she disputes any deductions.

My questions would be this:

1. If they have not reprotected the Deposit each time she has renewed can they legally make any deductions from it?

2. If they have not provided the scheme rules at all let alone at each renewal is it a valid deposit?

3. If as it would appear they have not reprotected the last time how does she go about making a claim against the Agent for failing to protect the deposit correct;ly in accordance with the Housing Act?

4. Are they entitled to make a charge which is shown in the Agreement for a release fee of the full amount of £200 + vat when there is only two months remaining and it seems an excessive amount. If it is to cover the Landlords reletting cost surely it should be done on a sliding scale as he would have had to pay the full fee anyway in May. Is there anyone she can complain to about unfair charges?

Your help and comments would be appreciated.

My answers are as follows:

1. They may be able to, but this would be offset against the penalty which your friend is entitled to claim for non protection of the deposit

2. It sounds to me as if they have not complied with the deposit regulations – your friend is in a good position as they will now have no defence to a claim for the penalty

3. She would need to make a claim through the County Court.  I discuss the procedure on this old post here.  However now the regulations have changed your friend may be able to find a firm of solicitors willing to offer a no win no fee.

4. It sounds as if it could be an unfair term in the tenancy agreement.  She can complain to the Office of Fair Trading or any Trading Standards office.

Not all tenancies are the same.

There are a number of different types, which carry different rights and obligations.

So its a good idea to know which one you have.

Here is a quick guide:

If you first went into your property before 15 January 1989 then you will probably have what is called a ‘protected tenancy’. Your rent will be regulated under the ‘fair rent’ system (or you can apply for this) and your landlord will find it very hard to evict you if you do not want to go.

If you first went into your property between 15 January 1989 and 27 February 1997 you will normally have an assured tenancy. This is similar to a protected tenancy but there is no fair rent system and your landlord will find it easier to evict you if you are in arrears of rent.

However if your landlord served a special notice (called a section 20 notice) on you before you signed your tenancy agreement, you will probably have an assured shorthold tenancy. If so you will have less security of tenure, as after your fixed term ends you landlord will be able to evict you via the section 21 procedure (although you will get at least two months notice first).

If you moved in on or after 28 February 1997 you will almost certainly have an assured shorthold tenancy. Unless:

• You have moved from another property owned by the same landlord and have lived there since before 28 February 1997
• Your landlord served a notice on you saying your tenancy would be an assured tenancy
• The property is in the same building as your landlord lives in (unless this is a purpose built block of flats where you landlord lives in one flat and you live in another)
• It is a company let (ie the tenant is a limited company)
• The rent is under £250 pa (£1,000 in Greater London) or over £1000,000 pa
• You are a student and the property is rented from the college providing your course
• Your landlord is a local authority or
• A housing association or some other social landlord (probably)
• You are required to live there as part of your job
• You rent accommodation on a boat
• You have sublet the property to someone else
• The fixed term of your tenancy is seven years or more, or
• The property is used for business purposes or comes under the agricultural tenancy regime

You can find out more about the different occupation types (not all of those on the bullet list are tenancies) and what they mean for you, on my Landlord Law site (although this does not cover local authority or housing association tenancies) which you can find out more about >> here.

Landlords – if you are interested in the legal background to tenancies, check out my Easy Law for Landlords course where I will be going into a lot more detail about this sort of thing.

Any readers currently dealing with the courts ( e.g. possession hearings, bailiff appointments etc), be aware of proposed industrial action by court staff. A “work to rule” may be in operation and you may find the courts are slower than usual in dealing with matters between tomorrow and August with urgent cases being prioritised. You can read about it in the Law Gazette here and on the BBC news here. The land registry also anticipates that tomorrow ( 10th May 2012) “Waiting times may be longer than normal; however, we will of course endeavour to ensure that any disruption is kept to a minimum”.

Filed under: England & Wales

Now is probably not a good time to bring a claim for possession through the courts.

Bog standard claims will probably go through all right but I predict dire delays for cases where non standard hearings are required.

Strike action

My inbox has brought me two news items which will fill all those who use the courts with a deep foreboding.

The first of these is news that the Courts will be conducting a walk out on Thursday in protest over cuts to their pensions.  They will then work to rule from then on until August, refusing all overtime.

Or so they say.  Individual court workers strapped for cash may succumb.  But it does not look good.

Last year the courts relied heavily on workers doing overtime to get the extra work caused by the riots done.  And apparently 1,200 posts have been cut by HM Courts and Tribunals Service this year.  Delays look inevitable.

Priority, we are told, is to be given to urgent business if the strike goes ahead.  We all know what that means.  Repossession claims will be pushed to the back of the queue.

Olympic cuts

The other piece of news will be particularly grim news for London court goers, already suffering the longest delays.

Apparently the courts are going to scale back their work considerably during the Olympics (which looks set to be a really fun time for anyone who just wants to get on with their work).

Although this is largely due to fears that jurors and witnesses will be unable to reach the courts due to the massive traffic expected at that time, we are told that other work will also be scaled back.

Heigh ho!

My advice?  Make sure your paperwork is ABSOLUTELY PERFECT so there is no reason for the Judge to push your claim to the back of the queue.

Magnohard Ltd v Cadogan and others [2012] EWCA Civ 594 is yet another case dealing with whether a property can be a “house reasonably so called” and, hence, capable of being enfranchised under the Leasehold Reform Act 1967. There is quite a lot of law on this topic, although the leading case is probably Tandon v Trustees of Spurgeon Homes [1982] AC 755. In essence, if a proerpty can reasonably be considered to be a house, then it is for these purposes (even if it could, equally reasonably) be called something else. Hence properties which look like houses but now have some (possibly substantial) commercial units can be enfranchised. It is quite a fact-specific test, although, there is a bit of a debate going on about how and to what extent you should look at the development history, user covenants, etc, when making this assessment. The Supreme Court is having a go at that question in a few weeks (Hosebay v Day, I think, see our note here)

The building in question was built in 1888 and consisted of a basement, ground and five upper floors. It was originally built as (in effect) six flats, with a housekeeper’s flat and three small shops.  The question was whether this could reasonably be called a house. The judge held that it could not. It was, in truth, a block of flats with three shop units. It was not a house which had been divided into flats (which would have been capable of being enfranchised).

An appeal to the Court of Appeal was dismissed. It was important to remember that the question was whether it could “reasonably” be called a house. It was clear that a purpose built block of flats could not reasonably be called a house.  Depending on what happens in Hosebay, there may be a further appeal.

 

 

 

Most commercial and long residential leases contain provisions which enable the landlord to recover any legal costs that may be incurred, however due to the vast amount of case law surrounding this issue there is considerable uncertainty as to whether or not the landlord can recover these costs if they proceed through the Leasehold Valuation Tribunal (LVT).

In the case of Freeholders of 69 Marina v Oram & Ghoorun the freeholders of a block of flats undertook work on the common parts and sought to recover the service charges from the tenants. However two tenants disputed the amount and the freeholder applied to the LVT to recover the service charges and the costs of taking the matter before the LVT. No monies were received from the two tenants despite the LVT decision so the freeholders served notice under section 146 of the Law Property Act 1925 demanding payment and issued a claim at the county court. The tenants then made payment. The issue to then be decided was whether the tenants should be equally liable for the costs of enforcement of the legal costs or whether the costs should be applied to all the tenants collectively. The Court of Appeal interpreted the terms of the lease and it was held that the costs were to be recovered from the two tenants only.

The above decision of the Court of Appeal is one that courts will have to consider in future cases. It should be noted that this decision was made because the costs clause in the lease was unambiguous. The decision clearly indicates that each particular lease needs to be carefully considered and whilst many leases contain covenants with the wider wording such as Freeholders of 69 Marina, many other leases contain the narrower wording.

Filed under: England & Wales, FLW Article Tagged: Clarity, costs, Freeholder, Lease