Tag Archive for 'Consultation'

Proposed separation of fact and law…

Published
by
NL
on 04/06/2009
in Housing law - All, Licences and occupiers and Possession
. 0 Comments

The DCLG have issued a consultation paper on ‘dispute resolution’ under the (to be) amended Mobile Homes Act 1983 (which will also have effect for Travellers) The consultation paper can be downloaded from us [PDF]. How to respond is at the back of the document, but responses are required by 9 June 2009 (!)

Amongst the suggestions is the frankly bizarre suggestion that “fact finding role” in possession proceedings be dealt with by Residential Property Tribunals (RPTs) while the “legal role” will be dealt with by the County Court. The DCLG suggests this as a means of addressing residents’ concerns that landlords bring proceedings as a threat or bullying tactic

we have heard from residents that site owners sometimes use termination proceedings as a bullying tactic and as a means of securing their own way. If that is so, we believe this is an abuse of the court’s system and that no cases should come before a court unless the facts relating to it have been established and verified. The Government, therefore, proposes to introduce a filter mechanism in respect of termination cases.

On a charitable view, it might just be that this hasn’t really been thought through. For example, the division would see no legal aid available to residents for the ‘fact finding’ tribunal. And how on earth does one manage a clear cut divide between factual and legal issues in a possession case, without the facts effectively being re-heard in legal argument, so further delay, duplication of effort and expense.

The Travellers Advice Team at Community Legal Partnership have put in what might be described as a robust response, downloadable here [.doc]. Others are welcome to respond – but quickly, 9 June…

Given that this is coming from the DCLG, there also the worrying prospect that this represents broader thinking on housing disputes and the tribunalisation of possession or disrepair proceedings.

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Transferred Trespassers

Published
by
NL
on 01/10/2008
in Housing law - All, Tolerated trespasser and secure-tenancy
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As it stands, Schedule 11 of the Housing and Regeneration Act will end the existence of tolerated trespassers who meet these conditions:

(i) the home condition is met (ie that the dwelling house remains the ex-tenant’s
only or principal home).
(ii) the ex-landlord is entitled to let the dwelling-house, and
(iii) the ex-landlord and the ex-tenant have not entered into another tenancy after
the date on which the original tenancy ended but before the commencement
date.

This will cover virtually all tolerated trespassers whose landlord has remained the same. They will get a ‘replacement’ tenancy. But what of those where there was a stock transfer, or one RSL was taken over by another, during the period in which the (ex) tenant was a tolerated trespasser? This involves substantial numbers of people, given the major stock transfers of recent years.

At present, the Act will not change their position. It was raised as an amendment during the passage of the Bill, but the amendment wasn’t passed as the Government promised that the Act would give the power to make such a change by order, after further consultation, such that part 2 of Schedule 11 applies to successor landlords. (Somehow, they hadn’t thought to include this issue in the original consultation).

Now the consultation is here. The consultation document can be downloaded from the DCLG here. The closing date is 19 December 2008.

Interestingly, the documents authors state that:

Our preliminary view is that in all the above situations there is a strong case for arguing that it is unfair for a change of landlord, which is outside a tolerated trespasser’s control, to determine whether they have their tenancy status restored or not. There is also a very real risk that if the situation for transferring tolerated trespassers is not remedied, it could lead to further litigation, once the provisions in Schedule 11 are brought into force.

My view (and I will hazard also that of other NL contributors) is that there are issues of both fairness and practicality here. The tolerated trespasser ‘regime’ is already ludicrously complex and needs resolving once and for all, not piecemeal and with a whole set of fresh technicalities on who is in or out. This may well mean doing ourselves out of a whole fresh swathe of work, of course, but I think both tenant and landlord side housing lawyers (and those who do both) would heave a sigh of relief, both for themselves and (particularly) for their clients.

The full document is worth reading, raising issues with (ex) starter tenancies – assured shorthold for RSLs, introductory tenancies (where successor does not have an introductory scheme), secure to assured (LA to RSL transfers), and so on.

There are some particularly difficult questions – for instance on succession rights for an LA to RSL transfer. Some transfers give assured tenancies, but with contractual preservation of ’secure’ rights. What of a replacement tenancy’s succession rights?

What of the Court’s discretion to ‘backdate’ the tenancy for breach of tenancy agreement/s.11 claims (disrepair primarily)?

The full list of consultation questions follows, just so you are prepared to give answers…

Existing landlord practice relating to transferring tolerated trespassers
(1)  What is the usual practice of successor landlords when dealing with
tolerated trespassers? Will tolerated trespassers generally be offered a new
tenancy and, if so, what type of tenancy will they be offered? Does this
differ from the type of tenancy offered to transferring tenants?
(2)  In what circumstances would tolerated trespassers not be offered a new
tenancy?
(3)  Is it possible to identify occupants who have transferred as tolerated
trespassers and who have not been offered a new tenancy (ie who continue
as tolerated trespassers)? If so, is it considered that the numbers are likely to
be significant or relatively small?
(4)  Are there any benefits to landlords in the existing situation and, if so, what
they are?
(5)  Are the benefits to landlords sufficient to outweigh the disadvantages,
particularly for tenants?

Legislating for successor landlord cases
(6)  Should the Government introduce secondary legislation to ensure that
tolerated trespassers whose landlord has changed, but who have not
been granted a tenancy by the new landlord, have their status as tenants
restored?

Change of RSL landlord due to merger or takeover
(7)  Should tolerated trespassers who transfer from one RSL to another RSL (and
who are not granted a new tenancy by the successor landlord) be issued
with the same sort of tenancy as the original one?
(8)  If this resulted in tolerated trespassers receiving an assured tenancy on
starter tenancy terms (because the original tenancy was a starter tenancy),
would this cause difficulties for landlords?
Change of local authority landlord due to boundary adjustment
(9)  Should tolerated trespassers who transfer from one local authority to
another local authority (and who are not granted a new tenancy by
the successor landlord) be issued with the same sort of tenancy as the
original one?

Tolerated Trespassers: Successor Landlord Cases
(10) Where the tolerated trespasser had originally held an introductory tenancy
but the successor local authority landlord does not operate an introductory
regime, should he or she be issued with a secure tenancy?
Change of landlord from local authority to RSL following large scale
voluntary transfer
(11) Where no new tenancy has been signed, should transferring tolerated
trespassers who originally held a demoted tenancy under the 1996 Act be
offered a new demoted tenancy under the 1988 Act?
(12) Where no new tenancy has been signed, should transferring tolerated
trespassers who originally held an introductory tenancy be offered an
assured shorthold tenancy or a full assured tenancy?
(13) Where no new tenancy has been signed, should transferring tolerated
trespassers who originally held a secure tenancy be offered an assured
shorthold tenancy or a full assured tenancy?
(14) Are there any other options in relation to transferring tolerated trespassers
(who have not signed a new tenancy) which might be considered? If so,
please provide details on what these are and the advantages which they
would bring?

Demoted and introductory tenancies
(15) Where the proposals under consideration would result in a tolerated
trespasser being granted a new demoted or introductory tenancy, should
the trial period apply in full, or should they only last for the balance of time
left over from the original tenancy?

Private landlords
(16) Are there likely to be transferring tolerated trespassers in the private rented
sector and, if so, what is likely to be the scale of the problem?
Applying the provisions in Part 2 of Schedule 11 to successor landlord cases
(17) Should newly restored tenants who are already a successor under the
original tenancy be entitled to succeed under the new one?
(18) Where newly restored tenant are not already a successor, should the
succession rules which apply to them be those which are appropriate to the
new tenancy, or the original tenancy?
(19) Should the “termination period” count towards qualification for the
preserved right to buy, as it does for tolerated trespassers issued with new
tenancies under the 2008 Act whose landlord has not changed?
(20) Under part 2 of Schedule 11, where landlords have taken decisions regarding
individuals’ voting rights based on their status as tolerated trespassers,
these decisions cannot subsequently be challenged on the ground that
the local authority failed to include people in the consultation process
whom they should have included, or vice versa. Should this be extended
to successor landlord cases so that similar provisions would apply to any
consultation carried out by either the original or the new landlord during the
termination period?
(21) Part 2 of Schedule 11 gives the court discretion to treat the new tenancy
as the same as the original tenancy so that they can allow claims relating
to the period when the tenants was a tolerated trespasser. This applies to
claims by both landlords and tenants for breach of tenancy agreement, or
for the tenant to claim for breach of statutory duty. Should this be extended
to successor landlord cases for the purpose of a claim involving the new
landlord and the old landlord?
(22) Part 2 of Schedule 11 provides that the possession order and other court
orders made in respect of the possession proceedings will apply as far
as practicable to the new tenancy. Should similar provision be made for
successor landlord cases, so that any orders in the possession proceedings
apply to the new tenancy, so far as practicable?
(23) If so, should this depend on whether the new landlord has been made party
to the proceedings?
(24) In seeking to apply the provisions in Part 2 of Schedule 11 to successor
landlord cases, are there any other issues which we have not identified and
which would need to be considered?

Impact Assessment
(25) Does the impact assessment correctly identify the nature and extent of the
costs and benefits associated with the 4 options which are considered?
(26) Is it considered that any group is/groups are represented disproportionately
amongst tolerated trespassers in successor landlord cases?
(27) Is there any evidence to suggest that the options under consideration would
discriminate on the grounds of race and ethnicity; disability; age; gender and
gender identity; sexual orientation; religion and/or belief?

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Having regard…

Published
by
J
on 24/08/2008
in FLW case note, Housing law - All and Leasehold and shared ownership
. 0 Comments

M & M Savant Limited v Brown and others LRX/26/2006

It is a shame that this case was decided in 2008, and not in 1998 when it would have had a much greater relevance. It contains a comprehensive analysis of s.20 Landlord and Tenant Act 1985 prior to the wide ranging amendments made by the Commonhold and Leasehold Reform Act 2002. Sadly, it is probably now only of interest to those (few) of us with a particular interest in leasehold property disputes.

Mr Brown and the other respondents were the leaseholders of various flats in a block of flats in London, NW7. In 2005, they had applied to the Leasehold Valuation Tribunal in response to a service charge dispute with their landlord. In particular they contended that the Appellant had not complied with the consultation requirements set out in s.20 Landlord and Tenant Act 1985.

Prior to the Commonhold and Leasehold Reform Act 2002, s.20 Landlord and Tenant Act 1985 provided that:

“(1) Where relevant costs incurred on the carrying out of any qualifying works exceed the limit specified in subsection (3), the excess shall not be taken into account in determining the amount of a service charge unless the relevant requirements have been either –

(a)complied with, or

(b)dispensed with by the court in accordance with subsection (9); and the amount payable shall be limited accordingly.

(2)In subsection (1) ‘qualifying works’, in relation to a service charge, means works (whether on a building or on any other premises) to the costs of which the tenant by whom the service charge is payable may be required under the terms of his lease to contribute by the payment of such a charge.

(3)The limit is whichever is the greater of –

(a) £25, or such other amount as may be prescribed by order of the Secretary of State, multiplied by the number of dwellings let to the tenants concerned; or

(c)£1000, or such other amount as may be so prescribed.

(4)The relevant requirements in relation to such of the tenants concerned as are not represented by a recognised tenants’ association are -

(a) At least two estimates for the works shall be obtained, one of them from a person wholly unconnected with the landlord.

(b) A notice accompanied by a copy of the estimates shall be given to each of those tenants or shall be displayed in one or more places where it is likely to come to the notice of all those tenants.

(c) The notice shall describe the works to be carried out and invite observations on them and on the estimates and shall state the name and the address in the United Kingdom of the person to whom the observations may be sent and the date by which they are to be received.

(d) The date stated in the notice shall not be earlier than one month after the date on which the notice is given or displayed as required by paragraph (b).

(e) The landlord shall have regard to any observations received in pursuance of the notice; and unless the works are urgently required they shall not be begun earlier than the date specified in the notice.

(5) The relevant requirements in relation to such of the tenants concerned as are represented by a recognised tenants’ association are -

(a) The landlord shall give to the secretary of the association a notice containing a detailed specification of the works in question and specifying a reasonable period within which the association may propose to the landlord the names of one or more persons from whom estimates for the works should in its view be obtained by the landlord.

(b) At least two estimates for the works shall be obtained, one of them from a person wholly unconnected with the landlord.

(c) A copy of each of the estimates shall be given to the secretary of the association.

(d) A notice shall be given to each of the tenants concerned represented by the association, which shall

(i) describe briefly the works to be carried out,

(ii) summarise the estimates;

(iii) inform the tenant that he has a right to inspect and take copies of a detailed specification of the works to be carried out and of the estimates;

(iv) invite observations on those works and on the estimates, and

(v) specify the name and the address in the United Kingdom of the person to whom the observations may be sent and the date by which they are to be received.

(e) The date stated in the notice shall not be earlier than one month after the date on which the notice is given as required by paragraph (d).

(f) If any tenant to whom the notice is given so requests, the landlord shall afford him reasonable facilities for inspecting a detailed specification of the works to be carried out and the estimates, free of charge, and for taking copies of them on payment of such reasonable charge as the landlord may determine.

(g) The landlord shall have regard to any observations received in pursuance of the notice and, unless the works are urgently required, they shall not be begun earlier than the date specified in the notice.

(6) Paragraphs (d)(ii) and (iii) and (f) of subsection (5) shall not apply to any estimate of which a copy is enclosed with the notice given in pursuance of paragraph (d).

(7) The requirements imposed on the landlord by subsection (5)(f) to make any facilities available to a person free of charge shall not be construed as precluding the landlord from treating as part of his costs of management any costs incurred by him in connection with making those facilities so available.

(8) In this section ‘the tenants concerned’ means all the landlord’s tenants who may be required under the terms of their leases to contribute to the cost of the works in question by the payment of service charges.

(9) In proceedings relating to a service charge the court may, if satisfied that the landlord acted reasonably, dispense with all or any of the relevant requirements.

(10) An order under this section -

(a) may make different provision with respect to different cases or descriptions of cases, including different provision for different areas, and

(b) shall be made pursuant to statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.”

The Court of Appeal, in Martin v Maryland Estates Ltd [1999] L&TR 541 had held that s.20(9) was not a general dispensing power, but contemplated a two stage process. Before considering whether or not to dispense with any or all of the consultation requirements, the court had to be satisfied that the landlord had acted reasonably in all the circumstances in which s.20 had not been complied with.

In 2003, the landlord had obtained estimates from contractors in respect of major structural works. The estimates were not disclosed to the leaseholders, who were merely given a summary of the proposed prices. The estimates were, however, available for inspection at the offices of the managing agents, some 8-10 miles away from the property.

In May 2003, solicitors for Mr Brown wrote to the managing agents and pointed out that s.20 required them to provide a copy of the actual estimates or display them in one or more places where they were likely to come to the notice of the leaseholders. The description of the works was also said to be inadequate. The managing agents responded by enclosing copies of some of the estimates, but did not deal with the substantive objection that the requirements of s.20 had not been complied with, indeed, it appears that they did not give any consideration to the objections and had confirmed a contractor to start the necessary works before the statutory consultation period concluded, thus making it rather difficult to see how they could have “had regard” to the observations received from leaseholders.

The LVT concluded that the consultation requirements had not been complied with. However, under s.20 as it then read, the LVT had no jurisdiction to consider whether or not the landlord should be granted dispensation from the requirements of s.20 (although it does now have that jurisdiction). At the time, that jurisdiction was vested in the county court. Unfortunately, the mere fact that it lacked jurisdiction to consider these matters did not prevent the LVT from making a series of findings of fact about the circumstances in which s.20 was not complied with and making clear that, in the view of the LVT, dispensation should not be granted.

The appellant applied to the county court for dispensation and appealed to the Lands Tribunal against the decision that s.20 had not been complied with. The President of the Lands Tribunal granted permission for the appeal to be heard and directed that it be heard with the application for dispensation, before a Member of the Lands Tribunal who was also a Judge of the county court.

The Lands Tribunal rejected the appeal. It was very difficult to see how s.20(4)(b) could be satisfied by merely telling the tenant where the information could be inspected but, even if that was sufficient, on the facts of this case, the information was not displayed in a place where it was likely to come to the attention of all the tenants, but was only available in an office, some 8 to 10 miles away. This defect was not cured by the managing agents later sending some of the documentation to one of the leaseholders. The effect of this defect was that there had been no proper compliance with s.20(4)(b), with the result that the statutory consultation period had not started to run.

It was not appropriate to grant dispensation from the consultation requirements. This should have been a relatively simple consultation exercise and there was no reason to give any degree of latitude to the landlord. The managing agents had acted unreasonably in, effectively, ignoring the letter sent by Mr Brown’s solicitors – “[w]here a landlord receives a letter from solicitors for a tenant being a letter which correctly asserts that the landlord is failing to comply with the consultation requirements and gives reasons as to why the landlord is failing and what the consequences of such failure may be, then if a landlord merely carries on regardless and commences the works without first properly carrying out the consultation requirements I consider such a landlord acts unreasonably…” Accordingly, the landlord had not acted reasonable and, hence, the jurisdiction to dispense with the consultation requirements did not arise.

Even if it had arisen, it would have been wrong to exercise it in favour of the landlord. The leaseholders had lost an important opportunity to comment on the proposed works and contractor and this was not something that the court should overlook.

The reforms contained in the 2002 Act have deprived much of this case of any lasting significance. The Lands Tribunal has already indicated that, under the new consultation provisions, a much more generous approach will be afforded to landlords and dispensation more easily granted (see LB Camden v Various Leaseholders at Grafton Way LRX/185/2006 and Auger v LB Camden LRX/81/2007). What is of use, however, is the discussion about what it means to “have regard” to observations received from leaseholders. This obligation to has been retained in the new s.20 consultation procedures and seems to import an obligation to actively consider and respond to any observations received. It may be that leaseholders can find something useful in this case when seeking to challenge a landlord which appears to have had little regard to their observations.

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