Archive for September, 2007

Possession claims dropping? Not all.

Published
by
NL
on 11 September 2007
in Housing law and job
. 0 Comments

The latest figures, up to Quarter 2 2007 are available on the Ministry of Justice site, link to the PDF.

The figures show quite a drop in the Q2 figures for non-accelerated possession claims issued (including claims by Councils and Housing Associations) compared to Q2 2006:

Q2 2006 32,465
Q2 2007 28,661

The figures for possession orders made also show a drop, although smaller both absolutely and proportionately:

Q2 2006 21,807
Q2 2007 19,542

This may show the effect of the Rent Arrears Pre-Action Protocol. Hopefully compliance with the protocol means less need for claims to be issued and/or stops claims being issued merely as ‘enforcement’ for agreed arrears repayments, or to poke housing benefit into action. On the other hand, it may just be that the protocol has made issuing a claim trickier.

Certainly, we have been getting fewer inquiries from social housing tenants facing arrears possession claims. Which is slightly annoying, as for various reasons, an arrears possession claim with a decent disrepair counter-claim would be very useful at the moment.

Meanwhile, private sector s.21 accelerated possession procedure claims and possession orders are rising. Claims issued:

Q2 2006 5,800
Q2 2007 6,493

Possession orders made:

Q2 2006 4,203
Q2 2007 4,628

Notably, for a no fault, mandatory order process, a lot of claims are unsuccessful (an increasing number 06-07). One can only presume that a lot of private landlords are making a horlicks of the process, as I doubt many s.21 claims are settled or withdrawn.

Obvious filler 5

Published
by
NL
on 9 September 2007
in whatever
. 2 Comments

Time for another in the intermittent series of startling insights into human life afforded by the search terms that somehow brought people to this blog. Also known as a lazy post on a Saturday night.

By the way, the campaign to make Nearly Legal the blog of choice for anyone searching for ‘Sally Field naked’, which I started in October 2006, has had remarkable success, given that I haven’t actually done anything at all. I am humbled to find that Nearly Legal is now the fifth link on the first page of Google’s results. Hell, people pay good money for that kind of placement. And the eager searchers do arrive en masse, 52 in August alone, making ‘Sally Field naked’ the third most popular search term for visitors. I’m sure Ms Field will be pleased to know that she has such a large, if overly inquisitive, group of admirers.

Of course, plenty of the other flotsam of human desire washes up on Nearly Legal

images of women stripped to the waist
legality of spanking in bc
sian lloyd naked
sex puzzles

As does rage, sometimes strong enough to interfere with spelling

trespasers will be shot
legality of baton ownership
legal revenge

and the inevitable come-down

feeling bad because of in laws

Not that law is exempt from the mess of our behaviours and bewilderments….

fake person calling city law firms for advice

Are they paying their bills? That’s the important question, surely.
Other people have clearly been sold a pup

buying kitten law misrepresentation

or are looking to the law to justify their meanness of spirit

is it law to leave a tip
legal contract wiggle room

or their uncouthness

english law can you spit in public

Naturally, this being England, problems with neighbours and acquaintances loom large

my next door neighbours are seeking a judicial review?

which will be that bloody Lleylandii hedge again. Next, the quiet english village sees a spate of poison pen letters…

am i committing libel by writing to one individual

Other searchers seem destined to a short legal career themselves. Faced with

what does dx mean in legal speak

one suspects that summer job in the law firm will not be a success. Others suffer less from ignorance and more from, cough, carelessness

i am a trainee soilcitor and caught without a train ticket

Oh dear.

Then there are the search terms that are plain mystifying.

legal assault by placebo

Assault by a harmless, effectless substitute? Tricky to prove, I’d have thought. On the other hand

swallowing sulphur

What? You want instructions? Or worse, this person just had swallowed sulphur and thought maybe they’d sit down at their computer and just have a look at what the effects might be. I hope they found out before the burning and diahorrea kicked in.

Ah, the internet. All human existence from ejaculation to evacuation is out there. But quite why they came here is less than clear.

Yossarian -v- the Legal Services Commission

Published
by
NL
on 7 September 2007
in Legal Aid and job
. 0 Comments

A few more details on R(Southwark Law Centre) v Legal Services Commission [2007] EWHC 1715 (Admin), which I mentioned a few days ago.

First, it is worth noting that Mr Justice Collins effectively said that ‘net rent’ for the purposes of the LSC entitlement assessment included any payments the occupier was obliged to make to be able to live in their home. This includes instalments towards arrears, e.g. under a possession order or agreed between landlord and tenant. This means that the assessment is now more ‘generous’ than the one most people assumed to be the case before the LSC started the ‘rent actually paid’ nonsense. We then generally took the figure to be the set rent figure alone.

Second, the background to one of the two joined judicial reviews, R (Dennis) v LSC, casts an unholy light on the sheer untrammelled idiocy that passes for LSC decision-making these days.

Ms Dennis faced an eviction and funding was refused by the LSC under the ‘rent paid’ assessment. Ms Dennis, via her solicitors Traymans, wanted to apply for permission for JR of this decision and sent a funding application to the LSC.

The LSC refused funding on the basis that the application for judicial review ‘was without merit’! Presumably because it knew it was right on the issue.

Traymans pursued the application for permission pro bono and funding was only actually granted once Collins J had given permission to apply for JR. As it turned out (or was obvious from the start) the application was so ‘without merit’ that not only was permission granted, but the LSC lost the JR itself. In fact the LSC lost so badly that permission to appeal was only given on the basis that the costs orders against the LSC would stand no matter what, and the LSC must pay the costs of the appeal for one set of the applicants’ solicitors.

Quis custodiet ipsos custodes? Should this increasingly demented body stand in judgement over the funding of challenges to the lawfulness of its own decisions?

Tenants’ Rights - The Book

Published
by
NL
on 5 September 2007
in Housing law and whatever
. 8 Comments

I have finally laid my hands upon a copy of the new book by Tessa Shepperson, the maestro of Landlord law blog and old friend of this blog. The book has been out since early summer, so apologies to Tessa for my belatedness.

Tenants’ RightsGiven this intro, I can hardly pretend to a fully objective review. But ‘Renting: The Essential Guide to Tenants’ Rights‘[1] is certainly well worth noting here, (despite the - let’s be honest - not wonderful cover design, for which clearly Tessa is in no way responsible).

It is important that this is not a specialist’s text. Tessa has set out to produce a clear, comprehensible and useful guide to becoming, being and stopping being a tenant, what rights one has as a tenant and what can be done to exercise and protect those rights. The tenant is the reader.

As anyone working in housing law will know, tenants and, all too often, landlords are ignorant of the actual rights, obligations and liabilities that are involved, as most of these are statutory and rarely set out in tenancy agreements or the like. Giving a clear account of what is involved is very difficult and tends to be laden with caveats, digressions and qualifications. So I am very impressed that Tessa’s book manages to organise the main and significant points of current (as of 01/07/07) tenancy law in a way which is marvellously straightforward and practical.

At an early stage, the reader is guided through identifying what kind of tenancy they have. After that, the approach is to describe specific rights. E.g. Right to be treated fairly, Right regarding condition of the property and repairs, Right to have your deposit returned, Right to live in the property undisturbed. This works very well, enabling distinct areas of the law to be brought together under the kinds of concern that the tenant may have.

The difference between the law affecting different kinds of tenancy is made clear, with separate sections where required, all following from the reader’s initial identification of their tenancy type. The three main current forms of tenancy: shorthold assured; assured, and secure, receive detailed consideration where they differ from each other. Other older or rarer forms of tenancy are also addressed, as are student lets and the particular issues of HMOs.

The book is also clear about where the law is especially complex or where the situation requires specialist advice (e.g. tolerated trespassers). The reader is advised to seek help and, in a separate section, informed how to find help, how to work with their advisor and importantly, how to avoid unnecessary expense and dodgy ‘advisors’.

In the full realisation that this book might do my firm out of some private client fees, I recommend it highly to all tenants or tenants to be. It will be of great help in avoiding problems and knowing what the options are when problems arise. I would also recommend it to general, non-housing specialist, welfare advisors - in an advice agency, for instance - and to landlords, as their right, duties and liabilities are also clearly laid out.

It is also astonishingly cheap - well beyond a bargain. Buy one for every tenant you know!

[1] The link is to Amazon.co.uk, but for clarity, I am not getting any referral payments.

Catching up - s.21 and tenants’ deposits

Published
by
NL
on 4 September 2007
in Housing law
. 0 Comments

A very interesting article by Francis Davey in September’s Legal Action about the Housing Act 2004. The whole piece rewards a read, but two bits caught my eye. We don’t do that many private tenancy possession defences, relatively speaking, so these were new to me.

Where a shorthold assured tenancy started after 6 April 2007, i) the deposit must be held by the landlord in one of the approved tenancy deposit schemes, within 14 days of receiving it and ii) the landlord is to give prescribed information about this to the tenant.

Now, where the landlord fails to do either or both of these, the landlord may not give a HA 1988 s.21 Notice. Any putative notice served is invalid, even if the landlord then later complies with the scheme. The landlord will have to serve a fresh s.21 after complying. Moreover, any s.21 Notice signed at the beginning of the tenancy, or with the tenancy agreement (as very many are) is invalid, as the deposit is not (yet) held in compliance with the scheme and the requisite information not (yet) provided to the tenant.

Sadly this only applies to deposits paid after 6 April, so older tenancies, even where renewed after that date, will not fall under it unless a fresh deposit is paid. [Edit. This is now open to question. It is probable that a new tenancy with a 'roll-over' deposit will require the deposit to be placed in a scheme, with the above consequences. A shorthold assured that has become a periodic tenancy - with no new tenancy agreement - won't be caught.]

Also, where the landlord has failed to comply, the tenant has a claim or counterclaim, with a mandatory award to the tenant of three times the deposit if the landlord has not complied by the hearing. Potentially very useful in a rent arrears possession.

Two things to be added to the list to check with private tenant cases. There is much more in the article…

Catching up - Disability Discrimination and possession

Published
by
NL
on 4 September 2007
in Housing law
. 11 Comments

Time for some substantive law at last. I missed this one while I was on holiday and have just had it brought to my attention.

LB Lewisham -v- Malcolm & Disability Rights Commission (Intervener) [2007] EWCA Civ 763. A very interesting case on the application of the Disability Discrimination Act 1995 to a possession case, well worth reading in full.

Of note:

i) Where a secure tenancy has been determined by a tenant’s action related to their disability, that determination persists as the DDA cannot rewrite the HA 1985.

ii) Where the action determining the secure tenancy is related to the disability, subsequent service of a Notice to Quit (majority decision) or alternatively pursuit of a possession claim by the landlord is unlawful. (Unless discrimination can be justified)

iii) The Court cannot make a possession order where the eviction would be unlawful under the DDA (majority) or in reliance on an unlawfully served Notice (minority)

iv) This is so regardless of actual knowledge of the disability by the landlord (a 2:1 majority decision)

v) Whether the determining action relates to the disability is a lesser test than causation

vi) Noted that the landlord’s advocate has a duty to the Court in possession proceedings against a disabled tenant to draw the Court’s attention to the fact that the act relied upon by the landlord is unlawful. This is so where the tenant has a defence under the DDA even where the tenant is not present/represented in Court.

vii) DDA s22(3)(c) does not only apply where the tenant has security of tenure. It applies to an occupier facing evcition regardless of status.

Lots to think about here.

Article Series - Disability Discrimination

  1. Catching up - Disability Discrimination and possession
  2. Disability and tenancy - More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination - the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords
:Next in series