A London estate agent says he is worried at the prospect of a possible law change in the autumn removing the need for planning consent before letting out a residential property for less than 90 days.
The government is considering the move in September and central London agency Martin Bikhit of Kay & Co says that although the initiative may benefit the market across much of the country, it does not take account of the capital’s needs.
“It will cause a severe lack of longer term permanent residential accommodation. The number of people prepared to pay very high rents for short term lets will tend to push out would-be long term tenants and owner occupiers. Permitting short term rents will effectively blight properties, turning blocks into badly managed hotels and resulting in long term residents having to put up with anti-social noise, lack of security and loss of neighbourliness” he says.
Bikhit also warns that the move may create potential issues with prostitutes and housing benefit fraudsters, and an increase in unauthorised rubbish dumping.
Westminster council has recently written to the government saying that it wants local planning controls over this issue to be retained. It says the major impacts of short term letting will be felt in central London’s apartment blocks, flats, and estates, even if it may benefit rental markets outside of the capital.
- Kay & Co
- Short Lets
Newton Fallowell has merged with Hartleys to become the largest independent agency across the East Midlands with a combined network of 25 offices.
Now stretching across Leicestershire, Derbyshire, Staffordshire, Nottinghamshire and Lincolnshire, the two firms will nonetheless remain trading under their existing, different, brand names and will retain all staff at existing branches for the time being.
Under the deal, Gary Hartley - the former England rugby international who founded the four-branch Hartley chain in 1995 - will become an executive director of Newton Fallowell. Meanwhile Newton Fallowell, founded by chief executive Mark
Newton in 1999, has 21 branches and 150 staff.
The merger has grown out of a long standing friendship between Hartley and Newton, who worked together as chartered surveyors in the 1980s, before each setting up their respective businesses.
The Hartleys lettings business is not included in the agreement, and will continue to trade as a stand-alone business, with Gary Hartley remaining as senior partner.
- Newton Fallowell
- east midlands
The Guardian - a national newspaper perhaps best-known for spelling errors - has taken a swipe at agents’ details and language in a column giving seven tips to “how to talk like an estate agent”.
It claims agents communicate in a dialect renowned for its “strangulated syntax, peculiar vocabulary and breathtaking insouciance, dancing on a rhetorical knife-edge between salesmanship and fraudulence.”
Its seven tips are:
1. Euphemise relentlessly - “compact” instead of tiny, “in an imposing building” for a brutalist tower block, and “an opportunity to put your own stamp on" meaning a disgusting wreck.
2. Use the magic get-out clause - the paper says frequent use of “in our opinion" insulates agents from subsequent legal complaint.
3. Accentuate the positive - especially by using the words “benefits from...”
4. Try to sound formal - using pompous phrases like in the case of a flat that "offers ample space to maximise your lifestyle requirements".
5. If in doubt, add "-ed" - as in, a two-bedroomed flat, which to The Guardian sounds better than a plain old two-bedroom flat.
6 Be geographically optimistic - the paper claims this means cases where homes in locations termed as Muswell Hill actually extend way beyond the M25.
7. Finally, employ cliches that no one can possibly contradict - well, maybe the paper has a point here with the use of "ever popular" and "light and airy".
- estate agents
- The Guardian
The market may be slowing now but the number of first-time buyers in the first six months of the year reached their highest level since 2007.
There were an estimated 144,500 first-time buyers in the first six months of 2014, an increase of 25 per cent on the same period last year. For the third successive year the number of first-time buyers, in the first half of the year, has been over 100,000, representing the strongest performance, for this period, since the start of the downturn.
Figures from the Halifax show that almost two-thirds of all first-time buyer purchases since the New Year have been above the £125,000 stamp duty threshold - unsurprisingly, given recent house price increases, this is up from 51 per cent a year earlier.
The average first-time buyer’s deposit is now £31,129, up nine per cent on a year ago; in Greater London that typical FTB deposit soars to £76,435 whereas in the north west it is just £16,532.
The average deposit, as a proportion of the purchase price, has almost doubled from 10 per cent in 2007 to 19 per cent now.
The average age of a first-time buyer is 30, up from 28 in 2009. Regionally, the average age of a first-time buyer is highest in London, at 32. In northern England and Wales it is slightly lower at 28.
- housing market
- firsttime buyers
However it is mentioned from time to time, so I was happy to agree to do a brief review of this eminently authoritative book from Michael Barnes QC.
Probably the most important thing to say about this book is that it exists.
So if you are a lawyer either in practice or at one of the local authorities, here is an up to date and authoritative resource to help you with your job.
It is a lawyers book, not intended for a ‘lay audience’. Although elegantly written, it is not (unless you have some background in the subject matter) an easy read. Its purpose is to help those lawyers who work in this area have a detailed guide to the law, as is it is now, to help them.
The law of compulsory purchase is largely statutory and is contained in five main acts, all of which are discussed in some detail. There is also a large amount of relevant case law, which again is considered here.
There are two aspects to compulsory purchase, the law relating to the purchase of the land itself and the law relating to its valuation, so appropriate compensation can be paid to the land owner.
Both areas are covered in detail, so the lawyer working in this area need look no further for a comprehensive reference guide.
As you would expect, the book is not cheap. The recommended price is £95 but you can get it for £85.50 on Amazon.
In O’Brien v Bristol CC  EWHC 2423 (Admin) [heard at the RCJ instead of in the Bristol admin court? Not on Bailii yet but we have seen a transcript], a range of issues arose out of the council’s decision to seek and obtain a possession order of an unauthorised encampment below the M5 at Avonmouth. The real aim of this judicial review, though, was not the possession order, but the council’s decision not to allow the O’Brien’s and their four caravans to return to the temporary transit site, which had available pitches. The O’Briens had stayed at that temporary site for the allowable period (13 weeks) and had been entitled to overstay on the ground of exceptional circumstances for a period. They then moved off and ended up at the M5 site. The O’Briens had also made a homelessness application and been offered interim bricks and mortar accommodation. The council’s officer had considered whether to allow the O’Briens back on to the transit site but decided against it for what would have been an indefinite period and which would have set a precedent for allowing extended stays in breach of planning controls. The O’Briens’ were unsuccessful on the merits although Burnett J did give permission to bring the judicial review
There are a couple of interesting points of law amongst the quite hazy facts (and I can’t let it pass that the council officer doesn’t seem to have taken contemporaneous notes of his decisions). The first point of interest is that this case extends Codona v Mid-Bedfordshire DC  EWCA Civ 925 to a situation where the council did, in fact, have other authorised sites, albeit temporary, available to it. The second point is that, in Codona (which, of course predates Pinnock), Auld LJ had elided Wednesbury and Article 8. I’m not sure that this elision is really sustainable and it kind of permeates O’Brien too, despite Burnett J’s acceptance that they are analytically distinct questions. The problems of proportionality are, of course, legion and for recent interesting academic discussions, Julian Rivers’ pieces in the Modern Law Review and Cambridge Law Journal are well worth a read. In O’Brien, though, Burnett J. found that whichever test was advanced, the O’Brien’s were unsuccessful. The haziness on the facts can’t have helped them. The Article 8 defence to the possession claim of the M5 site seemed bound to fail, in essence because they had not stayed there long enough for it to be their “home” for Article 8 purposes and, in any event, as Burnett J. put it, “As the authorities demonstrate, in these circumstances a trespasser has a difficult task to demonstrate disproportionality” ().
The other interesting point comes right at the end of the judgment about interim relief pending an application for permission to appeal to the Court of Appeal. It was submitted, perhaps boldly, that the O’Briens be entitled to return to the transit site pending consideration of such an appeal for up to 14 or 21 days. That application was refused because it would in effect have given the O’Briens the relief they sought albeit for a limited period. In any event, the application to enforce the possession order would take a few days to sort out at least. Nice try by the barrister for the O’Briens, Joseph Markus.
One last point – this claim could have been resolved in the county court through the grounds being presented as usual defences to possession proceedings but, of course, legal aid is no longer available to defend that kind of claim (although the O’Briens did have the benefit of being represented, it seems, at the county Court by the inestimable Will Stone of the law centre – at least that law centre hasn’t shut its doors yet).
This week has been rather dominated by the prep work for my first premium webinar (on section 21 notices) which finally took place yesterday (Friday).
It was supposed to take place on Thursday, but unbeknown to me my headset had somehow broken so when I tried to do the webinar on the Thursday no-one could hear anything but electrical hissing and crackles.
So a swift visit to PC World to get a new headset and then a second try. Which went reasonably well.
The replay is now online for people who signed up to the webinar to view. If you were one, you should have got an email by now with a link and the password.
But what happened on the blog?Sunday
I found a little treasure store of TDS videos on tenancy deposits on You Tube and this is one of them. Enjoy it here …Monday
A bit of help and guidance for tenants if you have problems with your deposits. Find it here …Tuesday
A blog clinic question from a landlord enquiring if he can get his non paying tenant out before his court case ends. See what his options are here …Wednesday
A look at a report (released on the day of the Cabinet reshuffle) with some interesting statistics about the bedroom tax. Read more here …Thursday
The next instalment of the HMO series from David Smith and myself. This is the first part of a section on the management regulations which apply to ALL HMOs. Find out more here …Friday
Ben is angry. Find out why here …
- The Guardian considers whether community land trusts could be a solution to the housing crisis
- Research shows that fewer tenants are in arrears
- Two ‘beds in sheds’ landlords given big fines in Hounslow
to get the weekly roundups sent direct to your email in box every week – the easy way to keep up with whats happening on the blog.
There has been a lot of noise about the Lib Dem’s change of position/u turn on the bedroom tax announced on Wednesday. Out of that noise, it has been possible to glean a little detail about what Nick Clegg, Danny Alexander and the Lib Dem leadership are proposing as their position. In particular, this Channel 4 news interview with Danny Alexander repays watching. (Apart from the fact that it is a spectacular car crash, in which Danny Alexander tries and fails to cope with the point that everyone knew, before the bedroom tax was introduced, what the effects would be, so trying to rely on the ‘now we know’ DWP report as a scales from the eyes revelation is a bit, you know, pathetic).
(Interview is here if not displayed below)
- Nobody to face the bedroom tax unless they refuse an offer of a ‘suitable’ smaller property.
An exemption for disabled adults. But while Danny Alexander in the Mirror said “Disabled adults should be treated the same as disabled children, by permanently exempting them”, it turns out that Danny Alexander did not understand his government’s current policy. What the Lib Dems apparently mean is an exemption for people who need an extra bedroom for reasons of medical disability, but that is not the current position for disabled children, so who really knows?
That is it. (oh, except for a new duty on social landlords to “manage their stock more effectively so more people get put into the right home”. Because currently they just put people in willy nilly, caring not about bedrooms, their stock or policies).
The spin is that this would practically exempt almost everyone, unless until they were offered a suitable downsized place and refused it. And thus, the Lib Dems announce, being equivalent to the LHA provisions.
But for every housing professional, let alone housing lawyers, these proposals are enough to raise eyebrows.
Let us start with this ‘offer of a suitable smaller property’. An offer? By and large social landlords don’t make offers on downsizing transfers. People bid, with allocated priority, on choice based letting schemes, as a rule. So there is no ‘offer’ to be refused. Are we to have a whole new scheme of downsizing ‘offers’? Or limits on bidding and not accepting? That would be a big change for CBL schemes.
Even if there was an offer (and social landlords changed their transfer practices to include direct offers, with all the related costs in doing so), what does ‘suitable’ mean? Are we talking importing the Part VII Housing Act 1996 version of suitability? And with it the review and county court appeal process? Or would it be appeal to the FTT on the basis of suitability – I have to think surely not as that is an appeal to the FTT is on a benefit decision, not the landlord’s decision on suitability on an offer of a smaller property. If not akin to Part VII, what is the definition of suitable? And how can the landlord’s decision be reviewed or challenged? And can the benefit authority actually rely on the landlord’s decision as to a suitable downsizing offer in law? You can see the judicial reviews lining up…
And then a disability exemption, but on what terms? Given Danny Alexander’s utter ignorance of the current state of exemption in relation to disabled children, (For anyone not aware by now, like Danny Alexander only not in charge of Government policy, this is roughly Yes for children who cannot share a room by reason of disability - like Burnip/Gorry, but No for children who require an overnight carer – Rutherford, for example), what hope is there of a cogent definition of ‘needs an additional bedroom by reason of disability’. I suspect a whole fresh round of FTT appeals would promptly result, and probably judicial reviews too.
Then there are the wider repercussions, as if an entirely new administrative process for both landlords and benefit authorities wasn’t enough. Councils’ transfer and allocation policies would need to be revised to incorporate the new rules. A lengthy and expensive process.
Oh, and then there is this supposed new duty to manage allocation more effectively. Whatever that might mean beyond pure PR guff. Social landlords will have to deal with it, despite it being deeply unclear what the ‘duty’ would amount to and how enforced.
I don’t think this has been thought through, not one little bit, though clearly planned by the Lib Dems for weeks if not months. It is a hugely administratively expensive, legally dubious, challengeable set of tweaks to a failed policy.
As a face saver for supporting the policy in the first place, it would be very expensive indeed. And, as Danny Alexander keeps telling us, these are straitened times. Are the Lib Dems seriously asking us to pay to cover their embarrassment? Scrapping the bedroom tax would frankly be cheaper, and the better practical and legislative option.
And as a political move? Did they really not see coming the inevitable Labour votes on scrapping the bedroom tax, and the sheer public embarrassment of Lib Dems having to vote, yet again, for the current regulations? It was my first thought on seeing the Mirror headline.
Nevertheless, there is significance here. Whether it will have any effect in the current parliament is something to wait for, but now at least two of the main parties are against the bedroom tax as it stands. And who knows what the Lib Dems would vote for after the election.
Dunfermline Building Society v Ghana Commercial Finance Ltd & Ors (2014) QBD (Merc) 16 July 2014 [Not on Bailii. Lawtel note of extempore judgment.]
Regular readers will know of our interest in Mr Dharam Ghopee (or Gopee), our very favourite unlawful money lender to vulnerable individuals at hugely extortionate if unenforceable rates. It appears that as well as skating on extremely thin ice with the Mercantile Court (to the point where all possession cases, by all his companies, are stayed, struck out or set aside), Mr Ghopee has been pursuing other litigation against relatively bona fide lenders (presumably over possession and charges) on behalf of his companies.
And just as in the joined Mercantile Court acses, the distinction between Mr Ghopee (or Gopee) and his many and various companies is crumbling.
In this case, it appears Mr G had brought a claim as Ghana Commercial Finance Ltd (and maybe other companies under Mr G’s control). The claim had failed. In fact it had horribly failed, such that “the substantive proceedings had been hopeless on the merits and ought never to have been brought” and summary judgment for Defendant given. Dunfermline Building Society, the erstwhile defendant, brought proceedings for costs against Mr Ghopee (or Gopee) personally.
HHJ Mackie QC, (for yes this was heard in the Mercantile Court by HHJ Mackie QC, who by now knows Mr Ghopee’s operations intimately), was not impressed by Mr G’s arguments that he should not be personally liable as there was a clear distinction between him personally and the company (or companies), as the benefit of any litigation inured to the shareholders.
The Court held:
Ghopee was inextricably bound up with the claimant’s fortunes; it was impossible to ignore that Ghopee was connected with a number of companies in all of which he had played much the same role. The substantive proceedings had been hopeless on the merits and ought never to have been brought. In reality there was no distinction between Ghopee and the Claimant and if there was any distinction, it was not sufficient to merit not making the order sought in all the circumstances.
So, Mr Ghopee was found personally liable for the costs of this case. And his room for manoeuvre gets ever smaller…
In years to come, we may all wonder what all the fuss was about, but Tuesday’s judgement in R (Public Law Project) v the Secretary of State for Justice has provided some relief and not a little amusement to legal aid practitioners girding themselves for yet another grim landmark in the legal aid story: the residence test.
The test, to recap, is intended to exclude from a number of publicly funded services (including housing) those individuals who are not lawfully resident in the UK, Channel Islands, the Isle of Man or a British Overseas Territory and have not at any time been lawfully resident for a period of 12 consecutive months (unless the individual is less than 12 months old or is a category of asylum claimant).
The MoJ’s position on the test was that the government was entitled to implement it by means of delegated legislation (the LASPO Act 2012 (Amendment of Schedule 1) Order 2014), relying in particular on s.9(2)(b) of LASPO (‘The Lord Chancellor may by Order vary or omit services’ in Part 1 of Schedule 1 of the Act) and s.41(2)(b) (Orders ‘may make provision by reference to services provided for a particular class of individual’). Those who find themselves excluded from Part 1 could nevertheless make an application for exceptional funding under s.10 if they could demonstrate a breach of their ECHR or EU rights.
PLP’s challenge to the Order was that it was, firstly, outside the powers permitted to the LC under LASPO and secondly, that it was discriminatory.
Moses LJ gave the lead judgement of the Court and reminds us (at para.37) that Para.1 of Sched.1 of LASPO aims to identify those individuals who have the greatest need for civil legal services. No other criterion is to be found in the statute and the LC cannot vary or omit services which depart from this primary objective (para.40).
So here was the first problem for the MoJ: if legal aid was now only to be targeted at those with a ‘strong connection with the UK’ (Transforming Legal Aid: Next Steps 5/9/13), this was not the express purpose of LASPO. It would therefore be a contradiction to say that those with the greatest need could still be excluded from services because they were not resident in the UK. The statutory provisions on which the MoJ were relying were supplementary to the Act and could not contradict its purpose (e.g. if certain services were no longer needed, they could be omitted, definitions such as domestic violence could be updated and so on).
Moses LJ held that the Order was ultra vires and that the test could not be introduced by secondary legislation.
The Court also had no trouble in finding that the Order was discriminatory and it is worth setting out para.60 in its entirety (if only to explain the title of this post):
- It is and was beyond question that the introduction of such a test is discriminatory. The test is more likely to be satisfied by a United Kingdom national than a national of another member state (a reference to the habitual residence test in Patmalneice v SSWP  1 WLR 783 at paragraph 35). The Government has accepted that it will be “easier for UK citizens to satisfy than other nationals” and that it “falls within the ground of national origin as specified in Article 14″. Indeed, that is its declared purpose. “We have made it absolutely clear”, said the Parliamentary Under-Secretary of State, “that for the residence test it is important that they are our people – that they have some link to this country” (18 March 2014). That is the justification for the test that is proffered, that it is designed to restrict legal assistance to those with a closer connection to the United Kingdom than foreigners. The Lord Chancellor has said as much to the Joint Committee on Human Rights: “I am treating people differently because they are from this country and established in this country or they are not” (26 November 2013). Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgment, and unmindful of the independent advocate’s appreciation that it is usually more persuasive to attempt to kick the ball than your opponent’s shins, the Lord Chancellor has reiterated the rationale behind the introduction of the residence test, in the apparent belief that the Parliamentary Under-Secretary had not been as clear as he thought he had been :
“Most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway, and when it comes to challenging the action of our troops feelings are particularly strong…We are pushing ahead with proposals which would stop this kind of action and limit legal aid to those who are resident in the UK, and have been for at least a year. We have made some exceptions for certain cases involving particularly vulnerable people, such as refugees who arrive in the UK fleeing persecution elsewhere. But why should you pay the legal bill of people who have never even been to Britain?
And yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court to try to stop the proposals” (Daily Telegraph 20 April 2014, sixteen days after the argument had been concluded).
The question at this point was whether the discrimination was lawful and justified. Again the MoJ’s case foundered on the argument that the government was not under a duty to provide legal assistance to those who failed the residence test and that it was akin to a welfare benefit. Following Stec v UK and R (Carson) v SSWP, it was settled law that the allocation of state resources was a matter for Parliament and the government and not the Court.
But having already decided which category of cases reached the required threshold under Schedule 1 to justify taxpayers’ subsidy, it was the Court’s view that no comparison could be made with those individuals who did not meet the conditions of welfare benefit entitlement. Those who failed the residence test, to repeat, still fell into the category of those in the greatest need under LASPO.
Discrimination could not be justified by reference to cost saving (para.82) or public confidence in the justice system (para.84). As Moses LJ scathingly expresses it: “Feelings of hostility to the alien or foreigner are common…in the context of a provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.”
So whether viewed from the point of view of equal treatment under the common law or Art 14 coupled with Art.6, there was no lawful ground for discriminating between those in the greatest need for legal services under Schedule 1 of LASPO.
The MoJ has quickly indicated its intention to appeal the High Court’s decision and the Lords’ motion booked for later this month has been cancelled pending the appeal.
The LAA has invested a considerable amount of time in readiness for the test’s introduction on 4/8/2014, with online training modules and guidance for practitioners. In this respect, it was important for the Court to highlight one of the more insidious aspects of the test (e.g. at para 30), namely its potential to exclude those who would otherwise pass the test but for the onerous evidential requirements (a dossier of immigration documents, 12 months bank statements to demonstrate continuous residence etc.).
The MoJ conceded that the exceptional funding application form was too unwieldy for all applicants, let alone non-residents, so it is clear that some thought will be required before the residence test re-appears in another guise, whether in primary legislation or otherwise.