Tag Archive for 'assured shorthold'

When does a tenancy begin?

Published
by
J
on 05/02/2010
in Assured Shorthold tenancy, FLW case note and assured-tenancy
. 0 Comments

Lynch v Kirby, QBD, 28.1.10 before Nicola Davies QC sitting as a Deputy Judge is – according to Casetrack – in the process of being written up. I became aware of it as a (very) short note on the Garden Court bulletin last Monday. I doubt that it’ll set the legal world on fire as it appears to turn on its facts. Still…

It looks like a landlord agreed to let a room in a premises to a tenant if he (the tenancy) could obtain housing benefit. The tenant entered into occupation on 20.2.1997 and obtained HB some six weeks later, backdated to the start of the tenancy. The landlord contended that the tenancy did not actually start until HB was in payment. The tenant said that the tenancy commenced upon occupation.

Why was this important? Well, prior to 28.2.1997, if you wanted to grant an AST, you had to serve on the tenant a notice under s.20(2), Housing Act 1988 before the tenancy was entered into. For tenancies after 28.2.1997, this requirement was removed and the AST became the default model from which one opted-out. Hence the importance of establishing when the tenancy commenced.

The High Court held that the tenancy had been made on 20.2.1997 and, hence, was fully assured.

As ever, more details as soon as we have them.

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Bits from August LAG 2: Unlawful Eviction damages

Published
by
NL
on 13/08/2009
in Assured Shorthold tenancy, FLW case note, Housing law - All and Unlawful eviction and harassment
. 0 Comments

The August edition LAG housing updates also contain a couple of County Court unlawful eviction and harassment cases that are well worth noting, particularly on quantum.

Abbas v Iqbal, Bow County Court 4 June 2009. Mr Abbas, who was elderly and in poor health, was granted a weekly periodic AST of a single room with shared kitchen and bathroom. The rent was £60 pw. In November 2007, the landlord – Mr Iqbal – told Mr Abbas he would have to leave as the property was to be converted into flats. In April 2008 a written notice was served, to leave within two weeks. The notice was defective and invalid. Mr A remained in occupation. In late May 2008, Mr I instructed contractors to begin work. On 30 May, the gas supply to the building was disconnected. On 31 May the water was disconnected. No warning was given in either instance. On 9 June, Mr A obtained an injunction ordering reinstatement of gas and water. Mr I failed to comply and works continued. The building was shortly made uninhabitable. Mr A had to spend some nights sleeping in friends’ business premises before the local authority provided temporary accommodation. He returned to the property in mid June 2008 to find all his furniture and belongings had been removed and disposed of.

Mr A claimed for unlawful eviction, harassment and, apparently, nuisance and disrepair (not mentioned in the LAG report, but apparent from the damages).

At trial damages of £39,194 were awarded:
£150 per day for the 13 days of building works and lack of utilities
£250 per day for 3 days sleeping in business premises
£1,000 for having to vacate before the tenancy had been terminated
£10,000 aggravated damages
£7,500 exemplary damages
£2,000 per year for 6 years cockroach and rodent infestation
£500 for a toilet defective for 6 months
£5,494 special damages (described by the court as almost certainly an undervalue).

If anyone from Mr Abbas’ team is reading , I would be interested to hear how the exemplary damages were arrived at. Oh and what was wrong with the toilet?

The second case is Jarvis v Sherif, Central London Civil Justice Centre, 28 May 2009. Mr and Mrs Jarvis had a 12 month AST. Disrepair made conditions ‘extremely uncomfortable’. In August 2008, with no repairs done despite many requests, they withheld rent until repairs were done. [Note to any tenants reading - do NOT do this]. The landlord decided repairs would be too expensive and sent a letter threatening to change the locks. Two days later, on 17 October 2008, the Jarvises were unlawfully evicted. Mr J suffered great distress. he had a mental illness and was deprived of medication. They managed to retrieve only some of their belongings in December 2008. The flat had been re-let in the interim. They had to stay with a parent, in difficult conditions, until January 2009 when they secured alternative accommodation.

At trial:
General damages (including aggravated damages) of £2,500 to Mr J and £2,000 to Mrs J.
Exemplary damages of £3,000
Special damages of £2,200.

Again, if any of the Jarvis’ team are reading this, how were the exemplary damages arrived at?

(Let’s just say calculation of exemplary damages is a current obsession of mine – please gratify it)

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Bits from August LAG 1: Tenancy Deposits

Published
by
NL
on 11/08/2009
in Assured Shorthold tenancy, FLW case note and Housing law - All
. 26 Comments

As ever, the lovely Legal Action housing updates have some interesting County Court cases that hadn’t reached us. A couple in the August edition concern tenancy deposit cases. Nothing binding (and when will some of these cases reach a higher court?), but interesting.

Woods v Harrington, Haverfordwest County Court. 19 May 2009. Ms Woods had a 12 month AST from May 2008. The tenancy agreement stated that there was a £600 deposit ‘as security for the faithful performance of the terms of the lease’. The deposit was not paid into a scheme. During the 12 month term, Ms Harrington, the landlord agreed to accept notice to terminate the tenancy early and possession was given in March 2009. The deposit was not returned. After two weeks, Ms Woods issued proceedings for the return of the deposit, without warning. Ms Harrington counterclaimed for damage and paid the deposit into a scheme in April 2009. At trial, the DJ noted that the requirements of s.213 Housing Act 2004 had not been met during the life of the tenancy. The late payment was made in the hope of avoiding the repercussions of s.214. This was not only contrary to the letter of the law but its spirit and the public policy it embodied. Parliament could not have intended that a landlord could ignore the legislation then avoid its effects by late compliance after the end of the tenancy. Return of the deposit and 3 times deposit payment ordered and directions given on landlord’s counterclaim.

This is one of a number of cases now where the County Court judges have taken the view that late compliance is not sufficient, in this case specifically compliance after the end of the tenancy. It is still a lottery, of course.

Delicata v Sandberg, Central London County Court. 2 June 2009. Ms Sandberg was granted a 12 month AST in July 2007. The deposit was not protected until August 2007. The landlord had served a s.21 notice on the same day the tenancy agreement was signed. In April 2008, Ms Sandberg was sent to prison. She had notified the landlord in advance. While she was in prison and without warning to her, the landlord issued accelerated possession proceedings relying on the s.21 notice from July 2007. A possession order was obtained and then in April 2009 a warrant of possession, both while Ms Sandberg was in prison and without her having been served with papers there. She returned to the flat on her release in May 2009. The landlord applied for a warrant of restitution. At court, the DJ accepted that the possession order should be set aside. The landlord could not rely on a s.21 notice served while the deposit was not protected – s.215(1) Housing Act 2004 – as it was invalid.

This may be quite an extreme case, but confirms what we have always said. A s.21 notice served with the tenancy agreement is invalid unless the deposit has been received and protected beforehand, which is unusual.

[For all tenancy deposit posts, click here.]

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Shocking lack

Published
by
NL
on 24/07/2009
in Assured Shorthold tenancy, Disrepair, Housing law - All and Regulation and planning
. 17 Comments

And I apologise for the pun in the title, which is in dubious taste.

Normally on NL, we restrict putting our view on matters to a few comments or the odd, albeit caustic, remark. But the events and legal requirements that are set out in this story from the RLA newsletter are such that we even had a bit of a discussion about whether and how Nearly Legal could mount a campaign.

In short, atrocious wiring in a private let resulted in the death of a tenant while running a bath. She was found dead by her five year old daughter. Wiring in the property, done 28 years ago, had subsequently ‘been checked by the landlord’s husband’, who was not a qualified electrician. There had been no professional check on the electrics since 1981.

Now, while there is a clear duty under S.11 Landlord & Tenant Act 1985 to keep the electrics in repair, and dodgy electrics would be a Category 1 hazard under the HHSRS, Housing Act 2004, what there isn’t is any requirement that would be comparable to the requirement for an annual gas safety certificate by a Gas Safe registered engineer.

In reality, there is no requirement for regular, professional inspections of electrical installations in rented residential properties, although there is no end of statute to say that the electrics must not be in disrepair or be dangerous. This only has practical effect once the electrics are dangerous.

Given that the single most life threatenng installations in rented property in general would have to be gas and electric, the absence of a requirement for regular checks along the lines of the gas check is frankly a serious omission from the statutory requirements.

We collectively came to the conclusion that we are not sure how NL would run or front a campaign in any event. And if we were to do so, there might also be other candidates – like educating police about the criminal offence of unlawful eviction (see the comments on this post).

But this is a matter that would be simple to resolve in legislation and one about which any landlords’ protests over the imposition of an additional burden can be safely discounted – whether public, RSL or private landlord. It is something that they should be doing anyway.

In the absence of repair works, a disrepair claim for water penetration is one thing, death by electrocution something else entirely. Anyone from DCLG. or indeed the TSA. reading? A quick, simple and life saving option presents itself…

Landlords – read this and follow it.

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HB means no gas or electricity

Published
by
NL
on 22/07/2009
in Assured Shorthold tenancy, FLW case note, Housing law - All and Unlawful eviction and harassment
. 0 Comments

In the July edition of Legal Action’s housing reports is the otherwise unreported Salah v Munro Willesden County Court April 2009. This was a harassment and unlawful eviction case. Ms Salah began an assured shorthold tenancy of a room on 23 March 2008 for a 6 month fixed term. Ms S applied for HB which was granted but did not cover the full rent, even after appeal. The landlord, Mr Munro had a ‘no HB’ policy, which he decided to enforce in a forthright and utterly unlawful manner. First he told Ms S to leave. Then, in May 08 his brother and girlfriend went to the property and demanded that she leave and return the key. Ms S refused, then went out, taking her key. On her return she found the locks changed and some of her belongings in bags in the street. Some items were missing. She spent a night in hospital after an asthma attack then sofa surfed until being re-admitted 10 days later following a court order.

Mr M continued to harass Ms S — missing furniture was not replaced and he accused her of being a prostitute. After the 6 month term, Mr M disabled the gas and electricity supply to the room, so Ms S had to stay at a friend’s home for a month. The electric was reconnected only once the landlord was notified that Ms S had been granted funding for a committal application. Ms S only stayed intermittently at the property after that. In January 09 Mr M saw Ms S at the property. He called the police who, helpfully, confiscated her keys.

At trial the court awarded:
Unlawful eviction — general damages of £8600. The usual range was £100 to £300 per night. Here £200 was appropriate, for 43 nights.
Aggravated damages — £2000
Exemplary damages — £2000
Special damages (in the absence of receipts) — £1000
Arrears of rent of £750 deducted from the damages — not including the excluded period and with rent assessed at 50% for the period without gas.

No separate award on the harassment, apparently. Anyone from Warnapala & Co, or Mr Bernard Lo, with more information?

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Victory – Bjorge Lillelien style

Published
by
J
on 13/07/2009
in Assured Shorthold tenancy, FLW case note, Housing law - All and Mortgage possession
. 6 Comments

Every now and then, a case comes to my attention which makes me causes me unimaginable joy. Redstone Mortgages Plc v Welch, Jackson & Jackson (Birmingham County Court, June 22, 2009, HHJ Worster) is one of those cases. It’s already attracted some media coverage and, with luck, might attract some more. It deserves to. I’ve summarised and simplified matters where possible but a full transcript is available if anyone wants it.

This was a mortgagee’s claim for possession, but with a rather unusual history. Mr & Mrs Jackson were, until October 2005, the owners of a residential property. The property was mortgaged to Cheltenham & Gloucester Building Society and Welcome Finance. The Jacksons fell into arrears in 2005 when Mr Jackson lost his job. They saw an advert in their local paper for “Repossessions Stopped” who offered to buy properties from owners in arrears, pay off the mortgages and grant tenancies to the former owners.

Mr & Mrs Jackson contacted Repossessions Stopped and were visited by Mr Dewsbury (who appears to be, with Ms Welch, the first defendant, the brains behind “Repossessions Stopped”). He offered to buy the property for £63,0000 (in circumstances where the property was actually worth £100,000 and Mr & Mrs Jackson believed it was worth £85,000) and told them that they could stay for the rest of their lives so long as they observed the conditions of tenancy. They would also be entitled to buy the property back in the future at a price 10% less than the market price and, to top it all off, their daughter could be a joint tenant and inherit the tenancy.

In due course an assured tenancy agreement was signed and the property sold to Ms Welch. The mortgages were discharged with the benefit of a further advance from Beacon Homeloans Ltd and, in turn, the Claimant acquired the right to enforce Beacon’s rights under the Mortgage. Repossessions Stopped / Ms Welch then stopped paying the mortgage.

The Claimant came to enforce its rights. It had not been a party to the representations in 2005 and the question was the extent to which the agreements made by Repossessions Stopped could bind it.

The Judge found that Repossessions Stopped / Ms Welch had granted an Assured Tenancy to Mr & Mrs Jackson; that, as against Repossessions Stopped, Mr & Mrs Jackson also had a proprietary estoppel founded on the representations made at the time of purchase, in effect, that they had an Assured Tenancy to which their daughter could succeed, with the option to buy the property back; and that they had (as against Ms Welch) a right to set aside the sale for fraud.

Repossessions Stopped / Ms Welch had, therefore, mortgaged the property subject to those rights. Accordingly, those rights took priority over the rights of Beacon (and the Claimant). In order to satisfy the proprietary estoppel, the minimum equity to do justice was that the Jacksons should be able to continue with the tenancy on the original terms (i.e. succession to the daughter or repurchasing at discount). Alternatively, they could set aside the sale to Repossessions Stopped / Ms Welch on terms relating to the financial compensation of the Claimant.

These “sale and rent back” schemes are now regulated by the FSA. But, of course, that doesn’t help those people who agreed to one of these schemes prior to 1 July 2009. For those people (or their lawyers), I suggest getting hold of this judgment, a wet towel and a stiff drink. It doesn’t set down any binding legal principles and, as discusseed in the comments below, quite a lot of the case turns on its own facts. However, it is an encouraging example of the arguments which one might want to use in cases against sale and rent back schemes in the future.

A round of applause

The Jacksons did not qualify for legal aid because their income was just above the relevant limit. Their case was dealt with by John Gallagher and Marie Burton of Shelter and Andrew Walker at Maitland Chambers all of whom acted pro bono until shortly before trial, when legal aid was finally granted. Using the new pro bono costs powers in s.194 Legal Services Act 2007, the court made a costs award of £20,000 in favour of the Access to Justice Foundation. Hearty congratulations to all concerned.


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Foxtons' terms unfair

Published
by
Francis Davey
on 13/07/2009
in Assured Shorthold tenancy, FLW case note and Housing law - All
. 2 Comments

In a long awaited decision the High Court has held in Office of Fair Trading v Foxtons [2009] EWHC 1691 (Ch) that some of the terms and conditions contained in Foxtons’ contract with landlords were unfair. While strictly speaking this decision is unrelated to housing law, concerning as it does the fairness of consumer contracts, it will have an impact on the housing sector and the decision itself is instructive in the application of the Unfair Terms in Consumer Contracts Regulations 1999.

The case was brought by the Office of Fair Trading who were claiming injunctive/declarative relief against Foxtons under their power to do so granted by regulation 12. The claim concerned only Foxtons’ terms of business to landlords using the letting only service. In response to the claim Foxtons changed their terms and the court agreed to consider their fairness as well. As a result the decision talks about “old terms” and “new terms”.

Note that, although the regulations only deal with consumer contracts, many landlords are not professional landlords (in that it is not their main business) and so contract with Foxtons as consumers. A witness for the OFT gave examples:

They include individuals who decide to let out their only property whilst travelling temporarily abroad, as a result of relocation by their employer or for other reasons connected to ‘lifestyle’ choice, individuals who let out part of their property in order to fund their mortgage on the remainder, and individuals for whom their property investment represents part of their pension plan or other long term saving….

The court had no hesitation in accepting that the regulations could apply.

Old terms

Foxtons charged a commission for introducing tenants Introduced tenants — the usual way in which letting agents do business. In addition to this a “renewal commission” was charged on tenancy renewals in a very wide range of circumstances:

2.14.3 Renewal commission will become due in respect of renewals, extensions and hold-overs or new agreements where the original tenant remains in occupation. It will also become due where the incoming tenant is a person, company or other entity associated or connected with the original tenant, either personally, or by involvement or connection with any company or other entity with whom the original tenant is or was involved or connected. Where there is more than one tenant, renewal commission will be payable in full where any or all of them remain in occupation. Commission is due whether or not the renewal is negotiated by Foxtons.

As well as questioning its fairness the OFT raised the issue of whether this term was even intelligible. What, precisely, does “associated or connected with” mean in this context? The clause clearly allows Foxtons to take a cut even if it has had no involvement with the property for some considerable time. On every occasion the tenancy is renewed, they are due a commission.

Worse another term provided that, if a tenant, occupier or licensee purchases the property from the landlord, Foxtons wwoud be due 2.5% of the purchase price in commission.
The landlord cannot even avoid a series of commission payments to Foxtons by selling the reversion, beacuse another term provided:

Where a property is sold, transferred or otherwise dealt with, with the benefit of a tenancy, Foxtons’ fees remain the responsibility of the original landlord for the duration of the tenancy and for any extensions, renewals or periods of holding-over, irrespective of whether negotiations were carried out by Foxtons. The landlord should instruct his solicitor to assign responsibility for Foxtons’ fees to the purchaser.

Awesome stuff.

New terms

Only the renewal commission remained (sales commission and third party renewal commission were dropped). The clauses dealing with the renewal commission, included the following:

1.1.4 Where a tenant introduced by Foxtons is replaced as tenant (whether or not under a formal tenancy agreement) by his nominee (whether a natural or legal person) the commission will remain payable for as long as the nominee remains in occupation.

1.1.5 The commission is payable whether or not any tenancy agreement is finalised by Foxtons,

Again an issue of intelligibility was raised over the renewal commission clauses. Indeed one does wonder what the precise meaning of the word “nominee” would be in this context.

Intelligibility and the core — is fairness even in issue?

Regulation 6(2) states that the consideration of fairness shall not relate:

  • to the definition of the main subject matter of the contract, or
  • to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.

In other words: you cannot argue that the price of that Covent Garden theatre ticket is too high, or that it is unfair that you have to watch that particular actor as part of the ensemble. There is a further caveat: regulation 6(2) does not apply to a term that is not in plain and intelligible language.

I cannot do justice to the intricate discussion of the regulation 6(2) point – I strongly urge reading the decision if this ever becomes of importance to you. In very rough summary:

The court found that the renewal commission terms (both old and new) were not in plain and intelligible language. In any event it found that none of the terms related to the main subject matter of the contract (or the adequacy of the price).

The drew the following points from Abbey National plc v Office of Fair Trading [2009] EWCA Civ 116:

  • Regulation 6 deals with things that could not be described as “core” but are rather “ancillary”.
  • The enquiry under regulation 6(2) is one of substance not of form.
  • It protects consumers against terms that the consumer will not have in focus when entering into the bargain.
  • Factors from Abbey National that were relevant included:
    • whether the obligation on the consumer was contingent;
    • whether it was mentioned in advertising material.

The court found the advertising point particularly damning:

Foxtons’ glossy brochure extols the virtues of Foxtons in relation to the activities involved in marketing the property, finding the tenant and negotiating a tenancy, apart from one page referring to managing the property. The accompanying separate leaflet on “Short term lettings” does nothing to suggest that there
will be renewals, let alone commission paid on renewals, and refers to ongoing management activities anyway. The same point can be made about its website, though the website is pretty general and of less significance in this respect.

On the question of fairness, the OFT made the point that Foxtons needed to do nothing to earn their renewal commission and the landlord might be paying a new agency a commission on top of that to Foxtons. Foxtons’ response was that they were not just introducing the tenant to the tenancy in the first place, but to the property so that every renewal was the result of their good work.

In the judge’s view it was a matter of impression but decided that the renewal commission terms were not fair. The lack of any temporal limitation, the steady increase of the commission with rent increases and the lack of any renewal service (new tenancy agreements being paid for separately) all pointed to the terms unfairness. It followed that the sale and third party commission terms were even less likely to be fair for the same reasons.

Foxtons had tried to argue that they would have to increase initial commissions in order to offset the loss created by being unable to collect renewal commission and that their business model relied on renewal commissions to maintain profitability. Despite promptings by the OFT over a considerable time, Foxtons never disclosed their model and the judge rejected this contention.

The judge made it very clear that he was not deciding that all Renewal commissions are unfair. He accepted that renewals avoid a void, but the customer doesn’t realise when contracting with Foxtons that that is being paid for.

What effect this will have on the rental market remains to be seen.

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Tenancy Deposit – variations on a theme

Published
by
NL
on 17/05/2009
in Assured Shorthold tenancy, FLW case note, Housing law - All and Possession
. 19 Comments

Legal Action May 09 housing updates contain a few tenancy deposit cases, which further muddy the waters…

Seghier v Rollings, Bow County Court, 6 March 2009. An assured shorthold beginning in May 2007. A deposit was paid by Mr Seghier to the letting agent before the start of the tenancy. It was not protected, nor the required information given. Ms Rollings was apparently unaware of the existence of the deposit scheme. The deposit remained unprotected until shortly before the initial hearing of Mr Seghier’s claim in June 2008. At the hearing Ms Rollings gave a copy of the certificate of deposit to Mr Seghier, but the prescribed information was not provided then or subsequently. At trial, Mr Seghier sought an order that the deposit either be repaid or paid into a designated scheme account and the 3 x deposit be paid to him. HHJ Redgrave distinguished Harvey v Bamforth on the basis that Ms Rollings had still not complied with s213(6)(a). The phrase ‘as it thinks fit’ in s.214(3) meant the court must order either return of deposit (s.214(3)(a)) or deposit to be put in a scheme (s.214(3)(b)). Payment of 3 x deposit within 14 days. Clearly the Court was untroubled by the late compliance argument or the s.214 ‘must also’ point, assuming that either were raised.

Beal v McCartney, Plymouth County Court, 12 March 2009. Ms McCartney granted Mr Beale a 6 month AST in March 2008. The tenancy agreement said that the deposit would be protected. It wasn’t. In September 2008, Mr Beal received a letter from the landlord’s mortgage lender informing him that a warrant of eviction was being applied for. The eviction took place on 22 October. Mr Beal made a claim for the deposit, 3 x deposit award and breach of quiet enjoyment. The Court awarded all this, with £500 for breach of quiet enjoyment. The Court observed that it was ‘quite clear’ that s.214(3) meant it must award the 3 x deposit and that ‘it is very silly of landlords’ if they don’t take notice. Interesting in that this appears to be a retrospective claim, rather than made during the course of the tenancy.

Universal Estates v Tiensia, Croydon County Court, 23 February 2009. Ms Tiensia was granted an AST on 19 May 2008 by UE. The rent was £2400 per month. A deposit of £2400 was paid in installments, with the last on 4 June. Ms Teinsia was in rent arrears from the start due to HB problems and the landlord served notice relying on grounds 8, 10 and 11 immediately after the second month’s rent was due. Ms Tiensia defended the possession claim and counterclaimed for the deposit and 3 x payment. The landlord registered the deposit with Tenancy Deposit Solutions Limited and faxed the certificate to Ms Tiensia.

The terms of the TDS Ltd scheme stated that the deposit must be protected within 14 days of being received from the tenant and details provided. On application for summary judgment, the DDJ held that the ‘initial requirements’ of the scheme itself (as well as s.213) required the deposit to be protected within 14 days. This requirement could not be satisfied once the 14 days had passed. 3 x deposit ordered.

Depending on the wording of the terms of the particular tenancy deposit scheme (and I believe that they are broadly similar on this point), this is a good counter argument on the late compliance point. If the landlord has not protected the deposit within 14 days of receipt and the terms of the scheme are that they must, then they quite simply cannot comply with the ‘initial requirements of an authorised scheme’ as per s.214(1)(a) and (2)(a). The details of the scheme itself are therefore important to check.

[For all tenancy deposit case posts click here]

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Unlawful Eviction and Harassment quantum

Published
by
NL
on 15/05/2009
in Assured Shorthold tenancy, FLW case note, Housing law - All and Unlawful eviction and harassment
. 0 Comments

The May edition of Legal Action’s housing updates contains a report on Khan v Iqbal, Bury County Court, 13 March 2009.

Ms Khan was an assured shorthold tenant on rent of £650 pm. She lived with her children aged 15 and 12 She got into rent arrears.

The landlord and his sons interrupted the electricity supply and turned off the central heating. They cut telephone line. The landlord attended the property and verbally abused Ms Khan.

On 10 May 2008, one of the landlord’s sons entered the property and began removing the tenant’s belongings. The police were called and in their ever helpful way with unlawful evictions, assured Ms Khan that she could return to collect her belongings and gave her the number for a refuge. The family was put in a B&B as emergency temporary accommodation by the Council. Ms Khan returned the next day to find the locks changed and most of her possessions missing or damaged.

Awarded – Harassment £2000 (Joint and several liability for landlord and sons)
Unlawful eviction £10,200 (at £100 per night)
Aggravated damages of £200
Exemplary damages of £3000
Special damages of £2338.32

If any one from Bury Law Centre, or Angela Piears, barrister, are reading this, I would be very interested to know how the exemplary damages were caclulated. Drop me a line…

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Regulating renting proposals

Published
by
Dave
on 13/05/2009
in Assured Shorthold tenancy, Housing law - All and Regulation and planning
. 5 Comments

I’m just in the process of marking what feels like thousands of coursework essays on proprietary estoppel and constructive trusts.  The thing that gets me – time for a rant – is that my very clever three As students can’t actually write a proper sentence, and split infinitives willy nilly.  It just winds me up.  So I turned to the much pre-publicised DCLoG response to the Rugg review of private renting which was published today. You can rely on DCLoG civil servants, or so I thought, but what lingers with me after reading it is that it could have been written by one of those very same students because it’s been incredibly badly put together and edited.

I focus on that in a way because the general view (or at least a straw poll of some of my policy nerd friends) is that the content is just a load of old flannel.  There’s not much there that we didn’t know about already – a light touch landlord registration scheme, regulation of letting and managing agents, written tenancy agreements, a kind of attempt at dealing with retaliatory eviction (about which we really don’t know anything but the policy focus on this is down to the amazing, saintly work of Debbie Crew and the CABx), promotion of local authority-landlord schemes to assist the vulnerable (ie shove all homeless households into private renting as “choice”), and sundry other items.  The Law Commission stuff is largely sidelined on the basis that this isn’t the right time for such an upheaval and because of the additional regulatory burdens – bla bla, I’m afraid I just think that’s just a load of old guff written by people who should know better (and who are responsible as a result for the mess we’re in, or potentially in, on Ground 8 and the HRA).  There’s nothing there really about tenancy deposits either – given the current uncertainty in the law as we have reported on several occasions and appears to be the stuff of much blogging -apart from a self-laudatory comment about the amount of deposits which have been protected through the 2004 Act schemes.

Three further rants:

(a) It annoys me that local authorities and landlords are now regarded as partners and accreditors etc, rather than local authorities as regulators and prosecutors.  I strongly recommend that DCLoG civil servants read the meticulous work of Keith Hawkins and indeed their own research on harassment/unlawful eviction from 1999 to appreciate the way prosecution is not used against the worst offenders.

(b) My co-researcher keeps on going on about the way government sidles up to the landlord community always saying that we know that there are many good landlords out there.  But, we don’t know that, nor do we know what we mean by “good” in this context, nor whether sometimes the good might also be bad. 

(c) I read this document from start to finish so I could write this.  They repaid me with the comment in their concluding section: “We see consultation on these proposals as the start of a long conversation with all who have an interest in the private rented sector and the proposals in this response”.  In other words, don’t expect any action on these proposals beyond meek, mediocre, unpoliced self-regulation.

Ah well, I feel better after those rants – back to proprietary estoppel and constructive trusts and the madness of marking.

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