Here is a question to the blog clinic from Dean who is a tenant.
I privately rent my house at the moment, and my land lord is trying to stop me from keeping my push bikes in the house over night. The value of the push bikes is far too great for me to want to do this.
I was just wondering whether my landlord has the right to dictate this to me? (May I add that no damage has been cause to the property because of keeping the push bikes in the house.)
I’m confused and I feel like I’m being punished in my own home. Can you please help with some advice?
The first thing you need to do is take a look at your tenancy agreement. Does it have any clauses which would apply to this situation? Some tenancy agreements do specify that the tenant cannot store bicycles inside.
If there is nothing in the agreement, particularly if the bikes are doing no damage, then you are not doing anything wrong. If your landlord keeps pestering you about it, this could be deemed harassment.
However if there is a clause in the tenancy agreement, then the question is – is it enforceable?
There is a limit to how much a landlord can dictate to a tenant what he does in what, as you say, is your own home. So depending on how it is worded, the clause may be unenforceable.
The main reason why landlords often prohibit bicycles being stored inside though, is that they can obstruct passageways and would prevent people getting out easily in case of fire.
If the purpose of the clause is to prevent this type of thing, it will be reasonable. So make sure, if you take the bikes inside, that they are not causing this type of obstruction.
Then of course bikes often CAN cause damage. The fact that your bikes have not caused any damage so far does not mean that they will not do so in the future.
If there is a valid clause in your tenancy, then if you breach it, the landlord’s main remedy is to claim the cost of any damage done to the property as a result, from your deposit when you leave.
Which, if they have not caused any damage, will not be a problem for you.
However, if you want to stay at the property long term, it may be wise to reach some kind of agreement with your landlord. As otherwise he may decide he does not want you to stay at the property beyond the current fixed term.
National property consultancy Carter Jonas has launched its refreshed brand as part of the firm’s strategy for continued growth and development.
Mark Granger, chief executive at Carter Jonas, said: “We are in a period of sustained growth and development. From a company with a turnover of £15million in 2009, we are now a multi-disciplinary property partnership with a turnover of £40million. Our business has evolved tremendously in the last five years and we needed the brand to reflect this.
“In December last year Carter Jonas relocated to new national headquarters at One Chapel Place, W1, which represented a significant milestone in its evolution. And in line with its national expansion strategy, the firm has continued to invest significantly across the business in order to improve the range of services for its clients.
“With improving economic conditions and market sentiment, we took this moment to review the existing brand to ensure it reflects both our collaborative and business minded culture, as well as our ambitious growth strategy. We are delighted with the results.”
Charged with rolling out this brand refresh will be Tom Foulkes, who has been appointed as head of marketing and communications. Tom joins the firm from leading development and infrastructure consultant Peter Brett Associates (PBA), where he was marketing director and global creative ambassador for the D&AD's White Pencils. Prior to PBA, he was marketing director at Arup; global head of marketing at Buro Happold; and spent eight years as head of retail marketing at Land Securities Group plc.
“I am delighted to be joining Carter Jonas at such a pivotal point in the firm’s expansion strategy,” said Foulkes, “The brand refresh is simply part of its evolution given the partnership’s excellent performance this year. Our focus however remains on communicating that we have trusted experts who deliver solid, long-term advice to enhance the future prosperity of our clients.”
The creative agency NextBigThing was awarded the design brief to create a more contemporary, more confident brand identity.
Glenn Harrison, creative director at NextBigThing, said: “Understanding their clients has been the cornerstone of Carter Jonas’ service for over 159 years, and their products and services have been developed to meet their diverse needs. Our brief was to honour this heritage, making it relevant for now and for the future.”
The brand refresh is being rolled out across the firm’s 29 offices from 8 September 2014.
To see the evolved brand in action, please visit: www.carterjonas.co.uk/brandrefresh
- carter jonas
- mark granger
Metropix, a supplier of floor plan based products to the residential property market, has today announced the findings of an annual survey that polled over 200 estate agency professionals regarding the value of floor plans when marketing properties for sale and rent.
The findings demonstrate the importance floor plans today play when marketing properties, with 84.8% confirming that offering floor plans helped their agency to secure new instructions, while a further 89% confirmed that including floor plans on portals encouraged buyers to view their agency’s properties.
When asked what their number one reason was for including floor plans, almost half (48%) said they believed they give a better representation of the property, while 44% were responding to consumer demand, suggesting that it is what buyers or prospective tenants want or ask for. A significant 94% confirmed it would have a negative impact on their business if they were to stop using floor plans.
Commenting on the findings, Brian Farrell, managing director of Metropix, said: “The survey was a way of not only gauging current perspectives regarding the value and usage of floor plans, but the feedback also helps us shape our future product development plans. We received some interesting insights, including confirmation that today 63.4% of our customers are choosing to use customised 2D floor plans, which includes their corporate colours or logo as a point of difference. We also identified that 44% of agents are now using floor plans on both their sales and lettings listings.”
When it comes to the type of floor plans that agents are using, 56.9% continue to use black and white 2D floor plans, while 21% prefer to use 3D plans on their property. 63.4% are opting to incorporate customised colours or logos to their 2D plans, which are available free of charge to Metropix subscribers, and help drive awareness of their agency through clearly displaying the agency’s branding on marketing materials, including floor plans.
Finally, when asked to rank in order of importance which details must be published on a property listing when marketing a property for sale, internal and external photos came out on top, closely followed by the inclusion of a floor plan and then the written property description, illustrating the importance of visual marketing tools, when marketing a property via online portals.
- floor plans
Paralegal: Housing and Community Care.
Based at our Head Office at Warley Chambers, Hayes, Middlesex
Founded in 2002, MTG has firmly established itself as one of the largest and most popular firms of solicitors in West London. Local businesses and individuals use our services because of our passion, our enthusiasm and our specialist knowledge of key legal issues. We have large Private and Legal Aid departments in two offices covering a large range of work including 5 Legal Aid contract areas.
MTG is seeking to hire two Paralegals, who have completed their LPC, for an initial Contract in its Housing and Community Care team, with a potential of obtaining a training contract upon performance review.
The role is for a junior fee earner to open and manage with Legal Help matters with administration duties.
Applicants are required to have minimum 1 year fee earning experience in housing or community care.
Salary: negotiable, dependent on experience.
In Nogueira v Westminster the Upper Tribunal had to deal with a rather odd decision of the First Tier Tribunal (called the “F-tT” in the report – an orthography I shall avoid).
To cut what must have been a long story short, the case was about major works to a large block. The freeholders had carried out major works. Somehow (the Upper Tribunal report is unclear) the case had reached the FTT for determination of the payability of the large service charge bill arising.
The FTT found that there were defects in the work that needed to be put right. That would imply that the work was not to a reasonable standard and hence service charges for the costs incurred in the works were unreasonable and unpayable, at least to some extent.
The FTT found instead that all the service charges were payable because the freeholders had given undertakings to the tribunal that they would carry out further remedial works. If the undertaking were not complied with, though the FTT, then the tenants could enforce them as an order of the tribunal.
Surely, you might think, the FTT can’t do that? Indeed not. In the Upper Tribunal the parties agreed that the FTT’s approach had not been acceptable. The Upper Tribunal, in the form of HHJ Huskinson agreed. While there was no need for him to decide the point (because it was agreed with the parties) he held that:
- the FTT has no inherent jurisdiction to grant injunctions and hence to accept undertakings
- there was no statutory basis for accepting an undertaking of this kind
- in any case the FTT had no power to enforce such an undertaking
- the undertakings offered before the FTT were “much too imprecise to be the proper subject of such an undertaking”
What an FTT could do, he thought, in a case where remedial work was required, was to find that one sum (£X say) was recoverable in full and that another sum (£Y say) would be reasonable if the works were done properly. That is not the same thing as accepting an undertaking.
I think this must be right. Section 27(3) of the Landlord and Tenant Act 1985 says that the FTT may determine what would be the payability of service charges if costs were incurred. It is therefore possible for the FTT to rule that a sum would be payable in hypothetical circumstances of this kind. Personally I would want to avoid hypothetical findings of that kind because when work is actually finally completed costs are rarely what was anticipated and outcomes not always intended.
I have been reading this amazing forum for quite a long time already and I am learning something every time I am here. I need fresh opinion and advice from property investors and landlords, because I am really not sure what should I do in my current situation. I would like to explain first few... Read more
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As many as 38% of landlords calling the Landlord Action legal helpline for advice on evicting a tenant have failed to place their tenants’ deposits in a government recognised scheme within the prescribed 30 days of receiving it, or have not even heard of the scheme which came into force back in 2007. Landlord Action... Read more
Whether or not a landlord can enter his tenant’s property to carry out inspections, repair work etc even if the tenant is unhappy about this, is a hotly debated issue.
In this post I examine the various options and situations that may arise, to try to provide some clarity.
Lets take a look at the law first.What the law says
It is an established rule that all tenants enjoy what is rather confusingly called ‘the covenant for quiet enjoyment’.
This does not mean that they are entitled to a noise free property or that they are entitled to enjoyment.
It means that they are entitled to live in the property without interference from the landlord or anyone acting on his behalf (such as his letting agent).
There is also another legal rule which says that “a landlord may not derogate from his grant“.
This means, effectively, that a landlord cannot grant a tenancy and then expect to be able to treat the property as if it was his.
So the law is (or should be) on the side of the tenant if he wants to keep his landlord out.
“But”, I hear you say, “landlords DO have a right to go into the property. It is theirs after all.”
Then there are times when they will have to go in – for example when carrying out the annual gas safety check or to do the quarterly inspection. What about that?Is it the landlords property or the tenants?
Lets take a look at the first issue first. Is it the landlords property?
Well it is and it isn’t. Confusingly it is possible for several people to ‘own’ the same property at the same time, in different ways. So for example:
- Fred can own the freeholder
- Leslie can own a long lease (from Fred)
- Tanya can own a six month AST (rented from Leslie)
- Nish (the neighbour) can own a right of way over the garden and
- Megabank Ltd can own a legal charge or mortgage on the property
So Fred and Leslie will ‘own’ the property in a way, but this will be subject to the rights of their tenants.
For example, with the AST, Tanya will have the right to use and live in the property. Leslie will have given this away in exchange for the right to receive rent and get the property back when the tenancy ends (known as the ‘reversion’).
In the same way that you cannot have your cake and eat it – you cannot rent out your property AND retain the right to go into it when you want.
Always excepting that a landlord can enter the property in a case of genuine emergency – such as a fire.What about legal rights of access?
But what about those circumstances when the landlord is given a statutory right to do something – such as s11(6) of the Landlord & Tenant Act 1985 which provides for landlords to be authorised to enter the property after giving not less than 24 hours written notice?
Or clauses in the tenancy agreement which provide for the landlord to have a right to enter, to (for example) carry out the annual gas safety check or show round tenants during the last month of the tenancy?
Lets start off by looking at the notice.The notice
Any right the landlord has to go in will be dependent (save in a case of genuine emergency) on the landlord giving the tenant written notice first.
Indeed, any clause which authorises the landlord to go in whenever he likes will be void under the Unfair Terms in Consumer Contracts Regulations 1999 – as it will be taking away a right which a tenant normally enjoys.
The general rule is that the notice must not be for less than 24 hours. However I would suggest that preferably the tenant be given considerably more than this. Ideally a couple of weeks. Then if the tenant wants to be present, he will have more time to arrange for this.
If you send the letter by post, you may also want to back this up with an email – just so the tenant can’t claim that the letter got lost in the post. And also of course because sometimes letters DO get lost in the post and you want the tenant to have a proper warning.
Its important that you and your tenant are on good relations, and being considerate about things like inspection visits (which many tenants feel are a bit of an intrusion into their home) is an important part of this.
Assuming the notice has been given – lets now look at some scenarios.Some scenarios
(For ‘landlord’ please read ‘landlord or his agent’).1. If the landlord gives notice and the tenant specifically confirms that they agree or that they have no objections.
In this case, unless the tenant retracts this, the landlord can use his keys and go in.
If he has no keys, then he will be dependent on the tenant letting him in. Note that there is no right per se for the landlord to hold (or demand to be provided with) a set of keys. It is assumed in these scenarios, that the landlord does hold keys.2. If the landlord gives notice and the tenant does not reply, but has not objected in the past when the landlord has gone in.
Here there will be a ‘course of dealing’ and the landlord will be entitled to assume that he can still use his keys to enter and do the inspection (or whatever).3. If the landlord gives notice and the tenant does not reply – where this is the first inspection visit.
Here, if the landlord has made it clear to the tenant at the start of the tenancy that they will want to gain access for inspections or if this is very clearly flagged up on the tenancy agreement, it is probably safe for the landlord to use his keys to go in.
However it might be prudent to try to contact the tenants first, maybe by phone or email, just to check.4. If the tenant gets in touch and says that he does not want the landlord to go in
Here the landlord should not enter. He should try to re-arrange the appointment. If the tenant is persistently obstructive he can:
- Write to the tenant and point out that he (i.e. the tenant) will be liable for any deterioration in the property due to the landlord being unable to carry out repairs and
- That if the tenant is injured by something damaged in the property, he will not be able to bring a claim against the landlord, as it is his fault the landlord was not able to get the damaged item repaired
- The landlord may also want to consider threatening to apply to the court for an injunction and/or serving a section 21 notice and evicting the tenant in due course
Again, the landlord will not be able to enter the property against the tenant’s wishes. The points made in 4 above will apply.
In addition the landlord may also be able to claim against the tenant for the costs of the wasted appointment.
Some tenancies will specifically provide for this, but it is arguable that in some situations it is chargeable anyway – if the landlord is able to show that this is a financial loss he has suffered as a result of the tenants’ breach of contract (i.e. by failing to allow access at the proper time) – and that the tenant was aware that this would happen.
For example the landlord will probably have to pay a call out fee to any workmen or gas installers attending to do work or carry out an inspection, whether or not they are allowed into the property.Reasons why the landlord should not go in against his tenant’s wishes
Even if the landlord were legally entitled to enter a property against his tenants expressed wishes (and although my view is that he is not entitled, it is possible that I could be wrong) there are some very good reasons why he should not do so.
For example if you are a landlord and your tenant was upset to find that you had used your keys to go in:
- This could trigger the start of a deterioration in landlord / tenant relations and your tenant may develop a hostile attitude towards you in future
- The tenant may claim that you have broken or stolen something which belongs to him – for example he could claim that a valuable watch or necklace has gone missing and seek to blame you and claim compensation. You may find it difficult to prove otherwise, if you were there on your own, against the tenant’s wishes.
- The tenant could complain about you to the Local Authority tenancy relations officer – if you are an HMO landlord requiring a license this could affect future license applications
- Your tenant may decide that he does not want to stay at the property beyond the end of the fixed term, putting you to the expense of finding a new tenant and the risk of a void.
These are all undesirable!Rooms in a shared house
The situation is slightly different if the tenant rents his own room and has the use, together with the other tenants, of the shared parts of the property. Such as kitchen, bathroom, lounge, hallway, passages etc.
Here the tenants’ rights to keep out the landlord will apply to his room. They will not necessarily apply to the shared parts – as he does not have ‘exclusive occupation’ of those areas.
So a landlord will be able to enter the shared parts to inspect, do repairs and show round new tenants, preferably with notice, but possibly even without it.
My view has always been that the landlord will have the right to enter the shared parts to carry out any ‘lawful’ activities but not otherwise.
So a tenant will be entitled to complain, maybe to his local TRO, if the landlord is constantly coming into the property for apparently no good reason but to spy on the tenants, but not if the landlord has come in to fix the taps or do an inspection visit with a new tenant. Whats your view?
I think that sums everything up, but if you disagree or think I have left something out please leave a comment below.
Note – if you are a landlord and your tenant is preventing you doing the annual gags safety check, you will find help and guidance in my Gas Access Kit
Winkworth has announced it’s opening a new office in Salisbury, adding to its expanding number of offices in the country, which now totals 35.
The office will be owned and operated by Matthew Hallett, who has a wealth of property experience having worked in agency for nearly 30 years both in London and the country.
The new office should prove to be very successful for the company, as data shows that there have been record levels of migration out of London, particularly to locations in the south with good commuter links, and the trend for relocation out of the city is set to continue. In certain locations in these regions, transaction levels have increased by as much as 19% compared to the previous year.
Dominic Agace, CEO of Winkworth, said: “The Salisbury office is in a fantastic location and helps to bridge the gap between our nearby offices of Devizes, Winchester and Romsey to give the Winkworth network wider reach to existing and new clients. We are extremely pleased to be continuing our expansion into this area of the country, following the recent opening of our office in Ramsbury, and believe that Winkworth is becoming a name synonymous with country property.”
Matthew Hallett, director of Winkworth Salisbury, said: “Having owned my own agency for many years I'm delighted to be opening an office in Salisbury with Winkworth. I believe that the values the agency and I share - especially as a resident of Salisbury myself with a great passion for country houses - will ensure that we’re able to offer bespoke marketing plans to suit individuals, expert local knowledge on the area and market conditions, as well as a unique perspective on property. I look forward to helping local residents and those looking to move to this great city and the surrounding area with all their property needs.”
- new office
Estate agent WA Ellis has released its latest commentary on the Prime Central London (PCL) residential sales market.
It says activity across all price ranges is ‘stable’ as research shows a reduction in transactions of just 3.5% from January to August 2013 compared with the same period in 2014.
It found that transactions between £2m and £5m increases by 11.7% this year; although sales above £5m went down by 5.5%.
Richard Barber, partner at WA Ellis, said: “Commentators regularly compare the market, both in terms of capital values and transaction levels with the glory days of 2007 where, pre-Lehman Brothers, we enjoyed a soaring market fuelled by domestic and foreign investment into Prime Central London.
“If we compare the current year’s activity (January to August 2014) with the same period in 2007, within our area of expertise (Chelsea, Knightsbridge, Mayfair, Belgravia and Kensington) we see a 35% diminution in activity. However, when one factors in the inflation that the capital has enjoyed over the last four years (18.5% in the last year alone according to Land Registry data), a more interesting picture emerges.
“Property transactions between £2m and £5m have increased by 17.5% and those in excess of £5,000,000 have increased by 72% on 2007. Whilst the media are reporting more bearish sentiments across the market and reduced levels of new buyer registration, we should not necessarily predict that the bubble is about to burst. Activity across all price ranges is very stable, and our research suggests that between January and August 2013 there were 1,288 transactions, and in the same period in 2014, 1,242 – a reduction of only 3.5%.
“Whilst the Damoclean sword of mansion tax continues to hover over the PCL market, the figures suggest that it has not as yet impacted. Indeed, sales between £2,000,000 and £5,000,000 have increased by 11.7% this year. However, sales of properties over £5,000,000 have diminished by 5.5%. The reduction in activity over £5,000,000 is perhaps indicative that the foreign investor may tolerate a tax of £15,000 per annum (based on the current ATED charges) but not the more punitive £35,000 charge per annum currently applied to properties held in company names with values in excess of £5,000,000.
“Whilst a combination of the strengthening pound, mansion tax, CGT for foreign investors and the Mortgage Market Review introducing tougher lending criteria for borrowers may dampen market sentiment, there is always a healthy appetite for the right product, and if vendors’ expectations are realistic, there is no reason why we should not enjoy a ‘normal’ market.”
- WA Ellis
- Mansion Tax
- Prime Central London
Sixty-eight per cent of high street estate agents are willing to consider introducing a range of tailored services for home movers in addition to providing the traditional services, according to a new survey.
The research was carried out by Move with Us who polled more than 100 independent estate agents across Britain.
Of the estate agents prepared to diversify their services, 88% revealed that they would offer a bundle of services, allowing homeowners to pick their preferred option and to have greater control over the services they receive. These include a combination of listing a property for sale on Rightmove and/or Zoopla only, taking professional photos, writing the property description as well as handling viewings and negotiations if required.
Seventy per cent of estate agents have seen competition increase in their local area with a rise in the number of new offices opening in the last three months. Move With Us says estate agents offering this added level of flexibility are more likely to remain competitive in the face of increased high street competition.
Robin King, director at Move with Us, said: “The property market is a long way behind many other industries in terms of providing customers with choice, flexibility and convenience.
“The market is evolving quickly and high street estate agents are starting to look at providing a range of marketing packages for home movers. This approach will provide home movers with greater benefits and attempt to keep moving costs down. They’ll receive flexibility and the security of face-to-face contact to support them through one of the biggest transactions of a lifetime.”
- Move with Us
- robin king
The average price of a property in the UK now stands at £186,270, 9.7% higher than a year ago, according to the latest Halifax house price index.
However, house price momentum has slowed since July when it saw a 10.2% year-on-year jump.
Halifax said there were “tentative signs” that a better balance between demand and supply might be emerging which, if sustained, would help to dampen the pace of price growth.
Mark Harris, chief executive of mortgage broker SPF Private Clients, said: “The combination of more property coming up for sale and the prospect of an interest rate rise at some point in the future is applying the brakes to the runaway market. However, with a number of lenders reducing their two- and five-year fixed-rate mortgages in the past couple of weeks there are still some excellent deals available for buyers who are concerned about rate rises and want to lock in. Assuming you can meet stricter lending criteria, it could be a great opportunity.”
Guy Meacock of buying agency Prime Purchase, said: “On balance the next few months will be the time to buy a home rather than sell. Vendors who want to exchange by Christmas are coming to market at an unfashionable time of year and may need to be more flexible on the price if they want to meet that deadline. Prices are already softening so there are good opportunities for buyers.”
Jonathan Samuels, chief executive of Dragonfly Property Finance, said less momentum and more moderation in house price growth is what the market needs.
"Increased supply on a consistent basis will further temper the rate of price growth and offer hope to prospective buyers. Growing consumer confidence, a strengthening jobs market and economy, and historically low mortgage rates have kept demand ticking over.
"But at the same time, a number of factors have combined to slow the market down slightly, from weak wage growth and the growing anticipation of higher interest rates to tougher mortgage criteria.
"As ever, there is no single narrative for the UK property market. In some areas of the country, prices are looking dangerously inflated, while in others the market is still relatively weak.
"Prospective buyers should remain on their guard and factor rate rises into the buying equation."
- house price growth
- house price index
When is a Secure Tenancy Agreement not a Secure Tenancy Agreement?
News has reached us of an interesting case in Bow County Court involving the right to succeed to a secure tenancy and the operation of s.103 of the Housing Act 1985: London Borough of Waltham Forest v Mahmood.
S.103 may be an unfamiliar provision to some so this is what it says:
(1) the terms of a secure tenancy which is a periodic tenancy may be varied by the landlord by a notice of variation served on the tenant
(2) before serving a notice of variation on the tenant the landlord shall serve on him a preliminary notice-
(a) informing the tenant of the landlord’s intention to serve a notice of variation,
(b) specifying the proposed variation and its effect, and
(c) inviting the tenant to comment on the proposed variation within such time, specified in the notice, as the landlord considers reasonable;
and the landlord shall consider any comments made by the tenant within the specified time
(3) Subsection (2) does not apply to a variation of the rent, or of payments in respect of service or facilities provided by the landlord or of payments in respect of rates
(4) The notice of variation shall specify—
(a) the variation effected by it, and
(b) the date on which it takes effect;
and the period between the date on which it is served and the date on which it takes effect must be at least four weeks or the rental period, whichever is the longer.
(5) The notice of variation, when served, shall be accompanied by such information as the landlord considers necessary to inform the tenant of the nature and effect of the variation.
Mr M was the son of the late Mrs M, who held a secure tenancy of a 3 bedroom flat with LBWF from 1982 until her death in September 2011. Towards the end of her life, Mrs M became increasingly infirm and dependent on a Social Services care package and family support.
At some point in the months prior to her death, Mr M moved in with his family to assist with this support and upon her death, he applied to succeed to the tenancy. The local authority refused his application on the grounds that he could not show 12 months continuous residence prior to his mother’s death. Notices to quit were served on the property and on the public trustee and possession proceedings began.
This is where it becomes interesting because Mrs M’s 1982 agreement allowed for a 6 month qualifying period for family members. Over the course of 2008 and 2009, LBWF planned to alter its terms and conditions (including bringing the succession provision into line with s.87 of the 1985 Act) and this process culminated in fresh T&Cs, which were intended to take effect from May 2009.
Mr M argued that the 1982 agreement was the effective agreement and that he was entitled to succeed to the tenancy by virtue of 6 months continuous residence. This required LBWF to prove that the preliminary notice and notice of variation were duly served on Mrs M. Over the course of the proceedings, it became apparent that LBWF were encountering some difficulty in locating those notices. Nothing could be found in connection with Mrs M and there was no trace of the specimen notice of variation. LBWF gave evidence that, following completion of the exercise in 2009, the documents had been placed in storage and an office move in 2013 was delaying discovery of the notices.
The case was effectively put on ice for approximately 12 months until it was heard by DJ Dixon at the beginning of September this year. The council did not produce any further evidence and they argued that the court could conclude on the balance of probabilities that a diligent exercise had been completed in a diligent manner and that the notices had been served on Mrs M (applying the principles in Entrust Pension Ltd v Prospect Hospice Ltd  EWHC 3640 at paras 39-40).
DJ Dixon disagreed. It was a matter of concern that the notices of variation had disappeared en masse and the only inference the court could reasonably draw from the fruitless search of the files was that the notices had never been served on Mrs M. The 1982 agreement therefore applied and, having found Mr M to have resided at the property from December 2010, the possession claim was dismissed.
This is clearly a case with significant ramifications not only for LBWF’s secure tenancies pre-dating May 2009 (of which there were roughly 13,000) but also for those other local authorities who may need to carry out due diligence into their variation procedures. It has perhaps been taken for granted during litigation that secure tenancies have been properly varied, particularly when following the correct procedure is not as critical to the outcome of a case as it was in this case. However, unless variation documents have been properly catalogued and recorded, councils will have to think twice before pleading that their tenants’ T&Cs have been successfully varied.