I live in a block of flats where we manage the maintenance and upkeep of the building in house. However, one of the flats has had a really bad leak and they are on the ground floor and its leaking into the garage. This flat is tenanted, and so the estate agent is managing it... Read more
I’m thinking about getting a flat with the sole intent of handing it over to a managing agent for the use of a short term serviced apartment. Will I be able to get a normal buy to let mortgage for this? Thanks Craig
I’m looking at buying a two bedroomed Victorian terraced house in NN1. My plan is to refurbish but nothing major as it has central heating, double glazing etc but currently unlettable due to kitchen condition. It needs re-plastering, decorating, carpets etc and a new kitchen. I will then let as a small unlicensed 4 bed... Read more
The post Planning permission for C3 to C4 in Article 4 conservation area appeared first on Property118.com.
Bradford Council are forcing me to put an LD3 interlinked fire detection system in a 2 bed back to back house. I believe this is unnecessary. I have checked LACORS and RLA guidance and think the council is just trying to push this through. As far as I can tell the requirement only comes in... Read more
This week our favourite journalist at The Telegraph (Nicole Blackmore) wrote an article entitled “Should mortgage lenders be allowed to change mortgage terms” What an outrageous question you might think. However, it’s not Nicole’s question, it is a question posed by the FCA! Mark Smith from Cotswold Barristers commented … “This is the line that... Read more
The post FCA think it might be OK for lenders to ignore contractual terms appeared first on Property118.com.
Most people working in residential letting will know about Landlord Action and its founder Paul Shamplina.
In this months podcast, Paul talks about his background in litigation and bailiff work, his firm Landlord Action, the eviction process and the Courts.
For example he tells us that it is so hard to get through to the Courts nowadays on the phone that he employs a full time member of staff – just to ring them up!
Paul also gives some really excellent advice for landlords – you may want to have a pen and paper with you when you listen. Here is a link to the agent check website he recommends.
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The Upper Tribunal has again found itself considering the issue of Rent Repayment Orders and has provided some further enlightenment on its position after the case of Parker v Waller (which we wrote about here).
Mr Fallon had been convicted of operating a property without an HMO licence and fined a, very modest, £585 with assorted costs and a contribution to the victims fund. Three of his five occupiers then made separate applications to the FTT(PC) (or “futpuc” if you prefer NL’s pronunciation) for RROs and the FTT then made an award to each applicant for 100% of the rent paid in the last 12 months.
Mr Fallon appealed on 9 grounds. The FTT allowed a limited appeal on some but the UT gave a further permission to appeal on all grounds. The UT heard the matter by way of a review with the possibility of returning the matter to the FTT for a rehearing.
The UT lumped the various grounds of appeal together and found for Mr Fallon on 2 bases. First it found that the FTT had failed to exercise its discretion properly or at all and second, in any exercise of its discretion the FTT had failed to determine what payment was reasonable in the circumstances.
Taking the most important issue first. The FTT had mentioned discretion at several points in its decision. However, it then went on to state that it had “no hesitation” in returning the full sums paid to the Applicants. The UT saw this as the FTT applying “the test incorrectly and proceeded on the basis that a repayment of the maximum amount of rent paid should be made unless there were reasons for not doing so”. This was precisely the same error that was fallen into in the case of Parker v Waller and so the decision of the UT is not terribly surprising here although it is vitally important.
All the other issues relate to the precise manner in which the figure should have been assessed and whether the FTT took the appropriate matters into account.
On utility payments the FTT had again not followed Parker v Waller. The FTT had held that utilities that were being paid out of the rent receipts were not deductible before assessing the RRO as they were part of the “usual outgoings and expenditure” that all landlords were subject to. The UT stated that this was incorrect as the seriousness of the situation did not justify a departure from the position set out in Parker.
The FTT had not considered the issue of conduct. They had taken the view that “ignorance of the law is no defence” but this was wrong. The very low fine given by the magistrates (£585 as against a maximum of £20,000) was a clear indication of the lack of seriousness of the offence and this should have been considered as should Mr Fallon’s position as a non-professional landlord who was only letting this single property. The UT mentioned that this had been his family home before the letting, whether this was a relevant factor in conduct or was a separate factor to consider is not clear.
The other conduct issues which the UT drew attention to were the short period of the offence, the relatively good condition of the property, the fact that the tenants had not indicated any dissatisfaction with the property, that two of the tenants had not sought RROs at all, and that the rent was relatively low with all bills being taken from it.
The FTT had also failed to take into account the very low profit margin enjoyed by Mr Fallon.
Finally, the UT again called attention to the double penalty arising from a fine by the magistrates followed by an RRO. This was a factor which had to be considered and which the FTT had again not considered.
For these reasons the RROs were set aside.
The most important issue that arises from this appeal is one that a number of FTTs have had trouble with. That is where and how do they begin to assess the amount to be paid under an RRO. This case again makes clear that the starting point is not to be “everything paid by the occupiers”. By extension it is also not “zero” or, indeed, any figure in between. The UT here endorsed the statement in Parker v Waller that the FTT “must take an overall view of the circumstances determining what amount would be reasonable”. In other words there is no starting point, it is a fresh consideration to be arrived at having considered the circumstances. I expect that this lesson will still be one that FTTs will find hard to learn (because it is not an easy thing to do!) and it may well lead to further appeals.
The other matters are mainly repeats of Parker as well. However, some further complexion is added to the consideration by the manner in which the UT approached the decision. It is quite clear that the full matrix of facts must be considered. It is also important to consider the seriousness of the offence and the effects on the occupiers along with the profit made by the landlord and, it seems from this decision, the profit motive of the landlord as well.
No doubt further decisions will add more to this picture.
The eagerly awaited Court of Appeal judgement in Denton & others v TH White Ltd & others was handed down on Friday. Dyson LJ provides a careful methodology on the approach to applications for relief from sanctions under CPR 3.9, with the aim to set to rights the fall-out from the landmark decision of Mitchell v News Group Newspapers Ltd (our note here).
There is now a 3 stage process for such applications. The first question to be asked is whether the breach of the rule, practice direction or court order leading to the sanction was ‘serious or significant.’ This replaces the ‘trivial’ criterion at para.40 of Mitchell, the Court having accepted that a breach may be regarded as trivial from one angle but not from another. Importantly, seriousness must be judged from the point of view not only of the litigation in question but litigation in general (para.26), reminding us (as Mitchell did) of the impact of a breach on other court users.
If a breach is serious or significant, the next question to be asked is whether there was a good reason for it. If there was no good reason, the Court is not bound to refuse the application and must consider all the circumstances of the case, with a focus on the need to conduct litigation efficiently and proportionately and to enforce compliance with rules and court orders. The CoA under stages 2 and 3 is careful not to prescribe what may or may not count as a good reason or what circumstances of a case might be relevant. However, prompt applications for relief and breaches of other orders are mentioned as factors to be weighed in the balance.
Since Mitchell was decided, the new rule 3.8(4) allows parties to agree up to a 28 day extension for compliance with court orders and this provides the CoA in Denton with the opportunity to give guidance and warnings to litigators. Opportunism will now be more readily penalised in costs (para. 43) where it is obvious that an offending party’s application for relief would be successful and this application has been unreasonably opposed, or a request for an extension of time has been unreasonably refused.
So, in Denton, the CoA held that the judge’s decision was plainly wrong. Witness statements had been served approximately 6 months after the deadline with the result that the trial was vacated and a fresh set of case management directions were set. The application for relief failed at all three stages. In Decadent Vapours, the late payment of a listing and hearing fee, albeit serious and lacking a good reason, should have led to relief from sanction being granted as the breach was at the bottom end of seriousness and the litigation could still have proceeded proportionately.In Utilise, a costs budget was filed 45 minutes late, which was neither serious, nor did it disrupt this or other litigation. The fact that an earlier order had been breached did not turn this breach into anything more serious. Relief from sanction was therefore granted and all three appeals were allowed.
So does Denton clear up all doubts and misunderstandings that followed from Mitchell? Although the CoA describes a three stage process, it is a balancing rather than a sequential exercise because, as the Court says at paragraph 35, “The more serious or significant the breach the less likely it is that relief will be granted unless there is a good reason for it.”
Jackson LJ dissents from the majority on the weight to be given to the specific factors under CPR 3.9(1). The majority consider (at para.32) that these factors should be given ‘particular’ weight, whereas Jackson LJ considers (para.85) that these factors be given no greater weight than other considerations.
Whether this difference in opinion will have a bearing in individual cases remains to be seen (it made no difference to these appeals). Mitchell remains good law, sanctions will still be deemed to have been correctly imposed and there is no longer any room for judges to be inclined to decide cases on their merits at the expense of due consideration of this new guidance.