Archive for October, 2006

Divorce for the unmarried.

Published
by
NL
on 31/10/2006
in Housing law - All and Trusts and Estoppel
. 0 Comments

Interesting to see the Government publicising proposals for setting up property distribution mechanisms for ex-cohabiting couples somewhat ahead of the Law Commission’s final report.

The Guardian’s paper account, if not its online report, compared the proposals favourably with the difficult, complex and expensive route of a claim in equity on the ex-home by an ex-partner without title, which requires some contribution to deposit, mortgage or household expenses, not to mention evidence of common intention. (I’ve got an equitable interest case underway at present).

I wonder. Clearly the equitable route is difficult, complex and expensive, but how much simpler will the new routes be, specifically for childless couples, whom the Govt. have apparently decided to include? The Law Commission hasn’t made its mind up about this yet.

Firstly, there must be an application, rather than a semi automatic consideration of property and assets, as with divorce. Second, the ex-partner claiming a share in property held by the other must show either a significant financial disadvantage to themselves or financial advantage to the other in their role and contribution to the partnership.

Granted, these terms are a lot looser than the legal and evidential demands of the equitable route, but the first rush of case law would, I suspect, rapidly place some fairly tight (and probably elaborate) strictures on what consititutes disadvantage or advantage in this situation and how it is to be evidenced.

Just earning less than, or being financially supported by the other would probably not be enough. Nor, probably, would be giving up or selling a property to move into a property owned by the other party (depending on what was done with the resulting money). It may be that giving up a career in order to support and develop the other person’s career could be counted, but this would be difficult to evidence in many cases, I would imagine.

Although potentially broader than equity for childless ex-cohabitees, then, I suspect that this will not end up much less complex, difficult and (therefore) expensive.

Where children are involved, matters are likely to be more straightforward. Although an application is also involved, this element of the proposals gets a mildly approving two cheers for addressing a growing problem. We frequently get clients insisting that they are ‘living as man and wife’ or common law married, who are very distressed when told that this means nothing at all.

It remains to be seen if the Courts will gain the same powers over redistribution of property, including tenancy rights, as they have around divorce.

Print This Post Print This Post

A positive duty

Published
by
NL
on 31/10/2006
in Various (non-housing)
. 0 Comments

The Law Society’s Defending Legal Aid campaign. Go here and sign up.

Print This Post Print This Post

Don't get too oppositional

Published
by
NL
on 27/10/2006
in Assured Shorthold tenancy, Disrepair, Housing law - All and Unlawful eviction and harassment
. 0 Comments

Tessa Shepperson, in an introduction to a Q&A makes a sound point that I think those of us who spend much of their time opposing local authorities tend to forget, which is that the Local Council’s tenancy relation services, environmental or housing advice services can be effective in illegal eviction or harrassment cases for private tenants, and can assist in the early stages of disrepair.

I tend to forget this because I am used to the less effective kinds of local authority behaviour, but I have now been reminded that I have had clients who have benefited from these services in the past and that they are certainly worth trying.

Print This Post Print This Post

Obvious filler 2

Published
by
NL
on 27/10/2006
in Various (non-housing)
. 0 Comments

Part 2 of what is likely to be an intermittent series, appearing when I’m lazy enough and my logs provide material. Yes, it is time for search engine queries that brought people here, answered by Nearly Legal.

And this time round, my earlier advice has been heeded. People have got specific in their searches, very specific. Although, in an illustration of dialectics, specificity seems as doomed to failure as generality.

For instance “sally field naked” is about as specific as you get, and bespeaks a less than idle interest. I almost feel sorry to have not satisfied it. But perhaps this blog could become the top google hit for sally field naked. If I mention a naked sally field a few more times, with a link to a page about sally field naked (not really), perhaps I could triple my throughput of people searching for Sally Field with fewer clothes than might be expected. And that can only be a good thing.

“taking legal action against a kitchen firm” seems detailed, (although how the hell did it come here? I haven’t mentioned a kitchen at all. I’ve been very, very careful not to), but lacks the key phrase. Which firm, godammit? We all want to know.

“criticisms to the way equity was used in douglas v hello”. Specific, yes, but let down by grammar. Like HELLO, that’s, like, ‘of the way’. And, dear law student, for that is whom I presume you are (or more worryingly, were), try ‘commentary on equity’ etc.. However, I must confess to having merely suggested that there was a problem in the use of equity in Douglas v Hello, then running away from detailing it, so I accept any spleen vented in my direction by my semi-literate but admirably delimited visitor.

“claiming job seekers is a fuckin joke”. Both specific and accurate, but less a search than a scream thrown into the digital ether.

Then we lose specificity, if not necessarily accuracy:

“bastard solicitors”. Could be, could well be, but this a funny way to seek a recomendation. Or perhaps not, on reflection.

“legal landlord secrets”. I think I swing the other way, sorry.

“age discrimination handy hints”. Erm, are people over 30? Yes? then sack them. That’ll do it.

“legal resources charging profit”. Yeehah! But, if you have to ask Google, you are mostly likely doomed in your enterprise, or likely to be sued.

I’d have to confess to being quite pleased to have a law blog that gets hits on such terms as “sherrie levine appropriation art from duchamp” and “craig-martin s style of art work”, but hell, for the latter, why not just search ‘craig-martin’ and see? (and apostrophise, dammit).

And then, my favourite, where considerations of specificity pale in the face of the possibilities…

“confessional cloaks in uk”. Umm and indeed Eh?

Print This Post Print This Post

Assured trespassers?

Published
by
NL
on 20/10/2006
in Housing law - All, Tolerated trespasser and assured-tenancy
. 4 Comments

Table of contents for Tolerated Trespassers

  1. Tolerated Trespassers – the aftermath
  2. Tolerated trespassers: A Luta Continua
  3. Postponing Possession. Are you now and have you always been a tenant?
  4. Assured trespassers?
  5. Assured tenant or trespasser? The waiting begins.
  6. Postponed assured trespassers verdict soon(ish).
  7. Permanent trespassers and enforceable possession orders.
  8. More on London & Quadrant v Ansell
  9. White v Knowsley – Court of Appeal Judgment
  10. Reincarnation of Tenancy?
  11. S.85 Application Randomness
  12. Permanent trespassers – a fan letter
  13. Payne-less
  14. Post mortem revival of tenancy
  15. When does enforceability end?

[Amended 21 October]

After a comment from Olamide Sanni, and a significant number of visitors from housing associations/social landlords turning up in my logs, it is clear that there is a big grey area for tolerated trespassers and the effect of Bristol CC. What of assured tenants, many of whom will have received a suspended possession order in the offending N28 form?

So, by popular request, I’ll have a stab at it (with the usual disclaimer that this does not constitute legal advice and should not be taken as any more reliable than a Tory tax policy emphasised).

The problem is that in Bristol CC, the Court of Appeal addressed itself solely to the Housing Act 1985 s.85 on the extended discretion of the Court and interpreted the then N28 in those terms. S.85 HA 1985 is solely concerned with secure, local authority, tenancies. Here it is, in part:

85.

(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of the grounds set out in Part I or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit.

(2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may—

(a) stay or suspend the execution of the order, or

(b) postpone the date of possession, for such period or periods as the court thinks fit.

(3) On such an adjournment, stay, suspension or postponement the court—

(a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and

(b) may impose such other conditions as it thinks fit.

(4) If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession.

The Court’s discretion in possession proceedings for assured tenancies falls under Housing Act 1988 s.9. Here is a truncated version of that:

9.—(1) Subject to subsection (6) below, the court may adjourn for such period or periods as it thinks fit proceedings for possession of a dwelling-house let on an assured tenancy.

(2) On the making of an order for possession of a dwelling-house let on an assured tenancy or at any time before the execution of such an order, the court, subject to subsection (6) below, may—

    (a) stay or suspend execution of the order, or
    (b) postpone the date of possession,

for such period or periods as the court thinks just.

(3) On any such adjournment as is referred to in subsection (1) above or on any such stay, suspension or postponement as is referred to in subsection (2) above, the court, unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, shall impose conditions with regard to payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits) and may impose such other conditions as it thinks fit.

(4) If any such conditions as are referred to in subsection (3) above are complied with, the court may, if it thinks fit, discharge or rescind any such order as is referred to in subsection (2) above.

Spot the difference? Perhaps not (with the obvious exception of the mandatory grounds for possession for assured tenants).

However, there is a difference between HA 1985 s.82 and HA 1988. HA 1985 s.82(2) states

Where the landlord obtains an order for the possession of the dwelling-house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order.

while the HA 1988 has no comparable phrase giving the date of the end of the tenancy. It is this specified date for the end of the tenancy which caused the problems with the old N28, which specified a date and postponed enforcement of the Order, rather than possession.

It may therefore be arguable that for assured tenants, the tenancy doesn’t end until enforcement of the Order, rather than the date of possession.

But there has been no judicial decision as to whether HA 1988 has the same effect as HA 1985 in regard to the inadevertent tolerated trespasser created by Harlow v Hall for secure tenants. Indeed the susequent amendments to the Practice Direction of the CPR also only references secure tenants.

So, the official answer is ‘dunno’.

And, as far as I know, this hasn’t been brought to a court yet in terms of a restitution of tenancy under HA 1988 s.9(2)(b) – or at least not in published form – while the HA 1985 s.85 (2)(b) route is well known. Nor has the question arisen in terms of, say, enforcing repairs under a tenancy agreement.

As it stands, we don’t know if assured tenants have been caught by the old N28 problem, and, if they have, if there is a similar route to restitution of tenancy.

But, given that s.9 HA 1988 makes provision for mesne profits, and given that old style N28s were dished out aplenty to Housing Association tenants, I would be quite surprised if the inevitable test case didn’t say that that the situation was the same. In any case, the new Postponed Possession Orders can be made in respect of assured tenants, as made clear in Bristol CC itself, and probably should be made.

Overall then, although we have no specific guidance, I think it is likely that the situation for (formerly) assured tenants is best taken as being the same as secure tenants. But it might not be.

Previous in series Next in series
Print This Post Print This Post

A percentage game.

Published
by
NL
on 17/10/2006
in Various (non-housing)
. 0 Comments

Readers may remember that I was concerned to the point of cyncism about the revelation that the Community Legal Service Direct phone line managed a referral rate to solicitors of 13%.

I have now heard that the contracts for the pilot Community Legal Aid Centres (CLACs), which are intended to be the frontline ‘civil justice’ providers for particularly deprived and service lacking areas, involve a ratio of legal help assistance to funding certificated litigation of 10:1, which is effectively a referral from help to representation of 10%. Remember that this is a contractual rate.
Hmmm. Now granted that a lot of the problems likely to be presented at a CLAC will be debt or benefit issues which may not need certificated work, but mental health, family or housing issues, I strongly suspect, are 1:1 on ‘ending with legal help’:'heading to certificate’. I doubt that an overall 10% certificate rate will be adequate.

If I’m right then a fairly short way into each year the CLACs will be seeking private firms to refer to, which somewhat defeats the point of setting up CLACs in areas of scanty specialist advice provision. I could, of course, be wrong, but 10% seems very low indeed.

Print This Post Print This Post

How not to be a landlord

Published
by
NL
on 14/10/2006
in Assured Shorthold tenancy, Disrepair, Housing law - All and Unlawful eviction and harassment
. 0 Comments

From a recent case, a fairly textbook example of how not to go about things as a private landlord.

The client was a shorthold assured tenant, with a years’ assured period and a monthly rent. Rent was paid by housing benefit, and the inevitable problems arose (not the client’s fault).

The landlord firstly attempted to give notice by a note. This was invalid in form and was within the assured term (there was no break clause in the tenancy agreement). The Council Tenancy Relations officer told the client this was invalid and to stay.

The landlord came round and behaved in a somewhat threatening manner on a few occasions, then nothing.

Two months later, a Notice to Quit, headed section 8, turns up. The client came to us. The notice was invalid in form, declared a date of service that was wrong, and gave a date for possession that was inside the assured period. I wrote to the landlord pointing this out.

From the client interview, it was also clear that there was significant disrepair and had been for some months. On client’s instruction, I sent the landlord an Early Notification letter under the disrepair pre-action protocol, which also recommended that he sought independent legal advice. No reply.

The landlord issued a claim for possession under the accelerated possession procedure. I drafted a defence based on the multiple invalidity of the notice. The claim was thrown out without a hearing.

We got a surveyor in as emergency, as the landlord hadn’t responded. On the basis of the report and instructions, we issued a claim for disrepair and application for interim injunction, which was personally served. The landlord came to the hearing of the injuction, unrepresented, and said there were rent arrears. We had counsel. The Court, of course, said ’so what? He had breached the tenancy agreement’ and gave an injunction order for urgent repairs and quiet enjoyment, with penal notice, plus costs. The Court directly advised him to get legal advice.

The urgent repairs were done.

The landlord failed to file acknowledgment of service or a defence. So I applied for default judgement and got it, with directions for a quantum only hearing and costs to that point.

By now the assured term was over. The landlord could easily have served a proper Notice requiring possession under s.21 and made an accelerated claim for possession. There is no defence to this, if done properly. My client actually wanted to go, having spent a hellish winter in the place, but needed to be evicted to make a homeless application (the client had clear priority need and no other available accommodation).

A couple of months later, the landlord served a Notice under s.21. (OK, so the dates were still technically wrong, but the client didn’t want to defend it).

We served disclosure, witness statements on quantum and listing questionnaire, as per directions. No response.

Then the landlord changed the locks while the client was away. I called him and he refused to give re-entry. Cue an application for another interim injunction for re-entry, which was given, with a return hearing. The landlord got a solicitor to make an application to set it aside, then de-instructed solicitor, turned up to the hearing in person and said that there were rent arrears and it wasn’t fair. (There were still arrears. Housing Benefit were still messing up). We had counsel. The Court, of course, ordered re-entry by the next day, with a penal notice and costs. Re-entry given.

I next made an application on the papers for an unless order to debar him from adducing evidence to the quantum hearing if he didn’t comply with directions immediately. The landlord didn’t respond. We got the order.

The quantum hearing had the expected result, a fairly sizeable damages award, plus costs. The landlord, representing himself, raised rent arrears in oral evidence, but couldn’t actually quantify them. In any case, a housing benefit back payment is imminent.

We are also considering the merits of a possible further claim for damages for unlawful eviction.

The landlord, much to the client’s frustration, has still not issued a claim for possession.

The landlord could have had the client out about 6 months ago, with no fuss. If he hadn’t tried to get the client out improperly within the assured term, it is highly unlikely that the client would even have considered a disrepair claim. Once issued, the disrepair claim could quite possibly have been settled at an early stage and probably for rather less than resulted from the quantum hearing. And of course, our costs are at inter parte rates, so are not negligible.

The morals of this story, if you want to be a private landlord, are:

  • Realise that the Tenancy Agreement is a binding contract.
  • Realise that there are significant statutory provisions on your responsibilities. Do the repairs. Don’t enter without giving notice.
  • Realise that there are significant statutory provisions on Shorthold Assured tenancies and how to end them that have to be followed precisely.
  • Don’t evict people without a court warrant.
  • Rent arrears are not an excuse for behaving illegally.
  • Get legal advice before you start letting, on the tenancy agreement, on your responsibilities and on what actions you can take in the event of problems. Consider legal insurance as a business expense.
  • Be aware that letting is not a low maintenance income generator.

Of course, many landlords get away with any or all of the above, because few tenants realise what legal rights they have or can get help to do anything about it. But it does take a particular brand of arrogance or stupidity to just blithely do what the hell you want when the tenant has lawyered up. Particularly when the lawyers know what properties you own and where you work and have a costs order…

Print This Post Print This Post

Kafka didn't do dialogue

Published
by
NL
on 13/10/2006
in Various (non-housing)
. 0 Comments

But I am very impressed that Brian Barder, the ex-SIAC lay member who resigned on principle does. Mr Barder commented on my post via the trackback at his blog. I’ve posted a comment in response, but I’d like to post his comment and my response here, for two reasons.

Firstly, because I still find it astonishing that a blog post from a relatively ill-informed person like me can attract a response from someone who has held a significant position in the matter under discussion/ranted about.

Secondly, because he makes some entirely valid criticisms that I would like to admit or address in the same place as the original post.

Having received an email from Mr Barder alerting me to his comments that was above and beyond the call of duty, I’d also like to say he is a gentleman.

Brian Barder said in response to ‘Kafka’:

The full trackback is worth reading, but its attack uses such scattershot in all directions that its effect is somewhat blunted. It’s rather out of date in some respects and misrepresents what happens in SIAC in others. But its anonymous author is right to be disturbed by the revelation that mutually contradictory closed evidence has been offered by the home office in two recent SIAC cases and that this has been discovered only by accident. The official reviewer of anti-terrorism legislation has asked for more information about this and it may result in procedural changes designed to minimise the risk of it happening again. Incidentally the ‘nearlylegal’ post is wrong to suggest that anyone with high security clearance and experience in dealing with intelligence and security material must be a spook or ex-spook.

I replied:

Thank you for your email and this comment. You are entirely right that my post was scattershot. It was indeed a rant.

I also fully realise that detention without trial was effectively ruled out in the House of Lords overturning of SIAC in X v SS for the Home Department [2004] (although I have direct information on the effect of control orders on some of those released from Belmarsh that makes clear that control orders are not much better, if at all). This was why I said ‘was or is’ at the relevant point. I’d agree this wasn’t clear enough.

I suspect that we might differ on whether SIAC was, in principle, a reasonable approach (or rather ‘least objectionable way’) to address the situation. My sense was that the process was always open to error and/or abuse because the ’secret’ evidence was effectively uncontestable. The House of Lords judgement in Rehman simply made matters worse for me, although I fully understand why it was a tipping point for you.

This fiasco over contradictory evidence confirmed both my fears over error/abuse and the inherent problems of a system where effectively uncontestable evidence is secretly presented. Particularly where all that is to proved is that the Home Secretary had grounds for suspicion that a threat to national security or interests, however indirect, might be involved.

I competely accept that the lay person with security clearance and experience need not be a spook. That was a rhetorical stretch too far there. That it was a ‘defence’ barrister who caught the contradiction does make one question the effectivity of the security expert though, when they are presumably in place to catch issues with the intelligence.

I hope you don’t mind, but I’ve posted your comment and this response on my blog.

I could well continue be out of date or wrong in some respects, I am not engaged in this area, and I am open to correction. But, hey, I’m flattered by the response. T’interweb is a wonderful thing.

Print This Post Print This Post

Kafka

Published
by
NL
on 12/10/2006
in Various (non-housing)
. 0 Comments

Beetle

Ah yes, the Special Immigration Appeals Commission.

Lest we forget, this is the tribunal which hears evidence that is so secret that the Defendant isn’t allowed to know what it is, and in which there is no need for the Defendant to actually be charged with anything.

Because there are no charges, there is, naturally, no burden of proof – balance of probabilities or reasonable doubt – to satisfy. The Tribunal’s job is to decide whether the Home Secretary’s suspicions that the Defendant might, possibly, at some indeterminate time in the future, pose a threat to national security, are reasonable. Of course the potential threat to national interests or security can be indirect.

Naturally, it is not hard to show that the suspicions were reasonable because the suspicions will be based on… the secret intelligence evidence.

Let us not forget that SIAC was or is the only route for appeal against deportation or detention without trial on the basis of these suspicions.

Now it turns out that this top secret evidence, hot from the spooks themselves, can be a bit flawed. As in completely contradictory. Granted, not in the same hearing, they’re not that stupid, but across different hearings. Given that the evidence is secret though, who is to know? Not the Defendant, not his or her solicitors, or journos, or anybody else not security vetted and sworn to secrecy.

So who spotted this small flaw? Why, one of the carefully vetted, security cleared, guaranteed not to get pissed and shout the details into their mobile on the train home, special barristers. One of those who get to act for a Defendant that they can’t actually tell anything. This barrister happened to act in both cases. Note ‘happened to act’, meaning by sheer coincidence.

So help me.

Luckily the High court judge on the panel was not impressed when this came to light.

In response the Home Office said:

“Siac with the assistance of the special advocates, has identified an oversight in the secretary of state’s disclosure process in this case.

“That this resulted from an error is accepted and steps are being taken to ensure that this does not occur again.”

An error in the disclosure process? What disclosure process? Unless they mean the error was showing the same ‘defence’ barrrister contradictory evidence in two different cases. That could certainly be considered an error in the disclosure process from one viewpoint. Nobody else outside the prosecution is shown anything, so maybe it means that hardly anybody on the prosecution side is shown anything either, so silly cockups aren’t caught quickly enough.

It is interesting that the SIAC panel is supposed to include a lay member with ‘high security clearance and experience of assessing secret intelligence’. What the hell was this spook or ex-spook doing in these cases?

So, to recap, we have secret evidence, not shown to the Defendant, which evidence only has to suggest that the Home Secretary’s suspicions are reasonable (not proven in any form). This evidence has been self-contradictory (i.e. clearly wrong in at least one case), and there is nothing in the process to check or catch this, other than the sheer happenstance of some relatively principled (but security checked) Rumpole being involved in both cases.

Call me Joseph K and take me to the attic.

(Incidentally, I’ve used ‘prosecution’ and ‘defendant’ throughout, because respondent and appellant really doesn’t seem to fit the situation).

Print This Post Print This Post

Liberty on the barricades

Published
by
NL
on 11/10/2006
in Various (non-housing)
. 0 Comments

Jonathon Freedland has an eminently sensible opinion piece in the Guardian on why legal aid matters and where Carter is a disaster. The article is clear and impassioned, but also sadly true in suggesting that this is unlikely to be an issue that leads to the barricades springing up on the boulevards. Delacroix’s Liberty, leading her class mixed band to freedom under the equal rule of law, would weep.

Civil legal aid takes a back seat again, though. Given the apparent dramatic increase in ‘middle class’ seekers after help and advice that the CAB has noted over the last few years, and that I have anecdotally heard about from local advice centres, perhaps a campaign about access to the law for civil matters might have a wider resonance than than has been thought.

The means test for civil legal aid has a bar set so low that large swathes of yer ordinary working stiffs can’t afford legal assistance. let alone representation. When a CFA isn’t appropriate and your insurance stiffs you, who you gonna call? I don’t know where I’d go and I’m in the business.
And as things are going, even those who pass the means test will have a hard time finding a provider.

The simple cry is that the law should therefore be cheaper. Maybe yes – but don’t blame the legal aid solicitors for putting the price up. They work for not a lot at all and have mostly got very good at doing alot with very little. But achieving miracles on bugger all is beyond possibility. Equal access to the law looks set to end not with a bang, but with a projected cost efficiency.

Print This Post Print This Post