Hey, you asked…

Another in Nearly Legal’s sporadic attempts at being helpful to passing internet searchers. All the questions are genuine searches from the logs, including the rather puzzling ‘crinoline flint’, which perhaps gives more insight into the searcher than one might want. As ever, none of what follows constitutes legal advice and you should always consult a specialist solicitor before taking any steps.

So, by theme:
1. Disrepair
disrepair protocol costs
…are part of a claim. May I direct you to our post on Birmingham v Lee on recoverability of protocol costs where works are done pre-issue.

living in unihabitable property and the consequences for landlords
I would imagine a pretty substantial disrepair claim against them, depending on why the property is supposedly uninhabitable.

appeal housing flood
Appeal? Why appeal?  Was there a claim? Floods are tricky things, though. Liability depends on the source and the cause. Landlords will usually be liable for the water supply and fittings in the property, but not where another tenant has caused the flood. The other tenant is then liable. But it is worth considering that even if the flood was caused by an upstairs tenant, if it has done damage to the structure of your property, the landlord is liable for that disrepair.

mice infestation qualifies as disrepair
By and large, no. An infestation of mice may count as nuisance, if they can be shown to be accessing the property from an area under the landlord’s control (common areas, service ducts etc.), which effectively rules out houses, or ground floor flats. An infestation might be part of a disrepair claim as a consequence of disrepair – if entry is gained through disrepair. Otherwise, nuisance is the best bet.

can i withhold rent disrepair
Only in very limited circumstances: where the landlord has been notified of the works required for which the landlord is responsible; failed to do them in a reasonable time; has been notified by the tenant that unless the works are done by a specified date, the tenant will do them, the landlord has been provided with an estimate of the costs and the tenant has notified the landlord that the costs will be deducted from the rent. The tenant can then deduct those costs and only those costs from the rent. Was that what you had in mind? I thought not. Otherwise, you cannot withhold rent and may face possession proceedings if you do. Compensation for disrepair is virtually always less than the rent in any event.

bed bugs tenancy agreement london
One of many, many searches on bed bugs. The trouble is that it is very unlikely that the landlord will be liable, or responsible for stopping the infestation. It is hard to claim nuisance, as it is very difficult to establish that the source of the infestation is an area under the landlord’s control. It will be a very rare tenancy agreement that would make the landlord responsible for stopping an infestation. For these reasons, it is also not a justification for breaking a tenancy agreement.

2. Possession
can the council in ealing evict me from my secured tenancy 3 bedroom house if my last son moves out
Probably not. Possession claims for under occupation can only be brought in very limited circumstances, where the tenant is a successor (but not to their spouse or civil partner) and notice was served between 6 and 12 months after the succession. Suitable alternative accommodation has to be available and it has to be reasonable for the Court to make the order. Note that this applies to secure tenancies only. Those with assured tenancies (eg, most housing association tenancies) can face possession proceedings if they refuse suitable alternative accommodation and suitable accommodation is available at the possession hearing.

staying a warrant mandatory ground
No. Can’t do it.

what happens when a tolerated trespasser clears arrears and court cost
At the moment, nothing, except , by and large, they lose the ability to apply to the court to revive the tenancy [Edit Feb 09 – the House of Lords Judgment in White v Knowsley has now changed this. A tolerated trespasser who has paid off all the arrears can apply to Court to revive their tenancy, or rarely and depending on the wording of the original order, may already have their tenancy automatically revive]. Equally, the landlord can’t enforce the possession order. There is no new tenancy unless the landlord decides to give one. These are what has become known as entrenched trespassers. This should change when some sections of the Housing & Regeneration Act 2008 come into force. Trespassers should get a ‘replacement’ tenancy automatically. Much more on this when it happens, which should be in April 2009. The whole thing remains messy – get specialist advice and bring your possession order with you (see the comments below).

3. Homelessness issues
caselaw ending interim accommodation with reasonable notice
You’ll be wanting Conville v London Borough of Richmond-Upon-Thames [2006] EWCA Civ 718.

legal rights when 1 party wants out of a mortgage leaving 1 person homeless
A joint mortgage? The other person can’t just get out of the mortgage. They can stop paying, which, although it would leave a claim against them, obviously makes the situation practically difficult. In a joint mortgage you are each liable for any and all of the mortgage payments. Can you end up losing the property? Yes – so you should get advice on your position as soon as possible, as it can be complex.

powerpoint on homelessness law uk
A bit lazy, no?

4. Funding
small claims defence southwark public funding
Very doubtful. Public funding is not available for small claims, with very limited exceptions.

how much legal aid is released to solicitors dealing with housing issues
Err. Do you mean for a case – then it depends. Or do you mean what part of the civil legal aid budget this year goes to housing matters? That I don’t know, off hand. In any case, legal aid is not ‘released’ to solicitors – they don’t get the money ahead of doing the work (in fact usually not for quite some time afterwards), and the LSC sets strict limits on the amount of work that can be done. The solicitor has to apply for and justify each increase in the limit. Then their bill is assessed at the end.

public funding cost of works disrepair
In order to be a potential fast track matter and so get public funding, the rule is that where there are works required either the cost of works or the likely damages must be over £1000. So if the damages are over £1000, the only requirement is that there are works outstanding, the works do not have to be over £1000 in cost.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Disrepair, Homeless, Housing law - All, Possession and tagged , , , .

8 Comments

  1. “what happens when a tolerated trespasser clears arrears and court cost” – you should add that it does depend on the exact wording of the order. What you say is not true for some wordings. Always check what the possession order says first.

    “can i withhold rent disrepair” – good advice for a tenant, not so good for a landlord. If a landlord is liable for disrepair for whatever reason and sues for arrears of rend a tenant may be able to plead a set-off in defence which might defeat (though often won’t be large enough) and certainly may complicate possession proceedings. Consider a serious disrepair to common parts (of the no working lifts or light in the corridors and I live on the 20th floor of a tower block variety) lasting months – most of the preconditions you give would not apply.

  2. @Francis Davey: On the withholding rent – the question clearly came from a tenant. Of course the tenant could counterclaim for disrepair on an arrears possession, but it is generally better for them to bring their own disrepair claim, with possession proceedings being brought. People tend to ‘withhold’ the full rent and not save it somewhere – they don’t mean withhold, they mean ‘not pay’. That is dangerous for the tenant.

    On tolerated trespassers, certainly suspended possession orders vary dramatically in effect, depending on wording. But if you are dealing with a tolerated trespasser, as per the question, either via breach, or via the N28 effect, I can’t think, off hand, of a single form of order that I have seen that provides for or could be read as enabling the revival of tenancy once arrears & costs are paid off. I’d be interested in examples.

    Obviously postponed possession orders are a different kettle of fish, but much less likely to see a tolerated trespasser on one of those.

  3. @NL consider an outright order for possession – eg “defendant to give possession in 14 days”. Warrant is suspended over the years. During that time the best analysis of the tenant’s position I have seen is “tolerated trespasser”. A second form of order:

    (1) defendant to give possession in 14 days;

    (2) enforcement of paragraph (1) to be suspended on payment of £1/week towards arrears of rent.

    Also creates tolerated trespasser status on breach.

    Both can be amply dealt with by the court’s existing powers under the Housing Acts – there is no difficulty even if the tenant has paid off all the arrears and costs.

    The difficulty came with (in my view incompetent) lawyers permitting judges to make orders in some standard form that provided that the order would not be enforceable after the arrears had been paid off. It is that element of the order that caused the most trouble and made the status of tolerated trespasser so awkward (because it many cases it could never be normalised).

    It is clear to me from the fuss that is still being made that most lawyers in the field do not properly understand this distinction (I have been at conferences where the speakers were obviously confused) and muddle along by talking about (for instance) “suspended orders” as if that was a coherent category. No surprises then that we are in the mess we are.

    Moral: always look at the exact wording of the order that was made, you may be pleasantly surprised (as a number of my clients have been).

    On repairs – I quite agree with the advice, I just wanted to be a little pedantic and temper it a bit. It is a failure to be pedantic that has lead to problems (like the one above with tolerated trespassers).

    The biggest problem tenants face is not whether or not to withhold or counterclaim, but a failure to understand that disrepair, even quite serious disrepair, does not equal (in terms of damages) the whole of the rent of the property.

    In my experience that is the biggest expectation management problem (when I act for a tenant) and the biggest problem in negotiation (when I act for a landlord). Disrepair damages just aren’t that great.

    There’s an excellent example which is in the LAG case book recently published (and was in the previous edition) of a house that was absolutely crawling with cockroaches. I use it as an example to clients of just how bad things can be, which often makes them see their own damages in perspective.

  4. @Francis.

    Disrepair/withholding rent first. I agree absolutely, in fact I think that was kind of my point. Other than the self-help exception (which is never what the tenant has in mind, in my experience) withholding rent is extremely dangerous for the tenant. I also know all too well what tenant expectations are on disrepair damages. A large part of my job is expectation management, starting at first interview. If a prospective client tells us they are withholding rent, our immediate response, whether we are taking the case or not, is ‘don’t’.

    Possession Orders. I agree on close attention to the order. I also agree completely that the express terms in the standard forms of SPO (N28 and its predecessors) on ‘no longer enforceable’ etc. mean that the Court’s s.85 powers end. I don’t think I agree that the presence of such an express term is required to end the s.85 powers. What is required is that the possession order is no longer enforceable, whether by express order or otherwise (Swindon v Aston, L&Q v Ansell, etc.).

    In your example of a ‘suspended’ order, I’d argue firstly that tolerated trespasser status occurs after 14 days, breach or no breach, as it uses the Harlow v Hall wording. – a date for possession is given, but ‘not enforceable’ (just being pedantic).

    And then, is the order still enforceable after the arrears are paid off? Could the landlord seek a warrant (whether there is past breach or no breach or fresh arrears?). If the answer is no, then there is equally no s.85 power to amend the PO. If enforceable, this would give rise to the also ludicrous situation in which the landlord could issue a warrant, simply because the arrears had been paid off and the condition no longer applied. I suspect that it would be found that the possession order ceased to be enforceable when the condition for its suspension ceased to apply. But there are no higher decisions on this that I know of. Anything I’ve missed?

    I wasn’t thinking of the outright PO, with parties agreeing terms later, as a ‘tolerated trespasser’ situation, but after a reminder of Burrows v Brent, of course it is. I’ll grant that Burrows v Brent appears to suggest that an outright PO remains amendable to amendment under s.85, but a) this was not in a situation where the arrears had been paid off – that was not expressly addressed – and b) it was decided well before Swindon v Aston, L&Q v Ansell etc..

    But if an s.85 application is possible in those circumstances, the coro‫llary has to be that an outright PO remains enforceable at any point after it is made, regardless of the situation – arrears paid off, subsequent agreement between the parties complied with etc.. Now whether it would make practical sense to issue a warrant where arrears have been paid off is another issue. A stay would be pretty assured of success, as would an application to postpone possession, but the point is that in principle, a warrant could be viably issued at any point short of new tenancy or variation of PO to postpone possession. If that is not the case, then neither is it the case that a s.85 application to vary the order could be made. Again, this is untested in a higher court as far as I know.

    So, I stand by the first part of my comment in the post – that what happens when arrears are paid off is nothing. I would qualify the rest to say that in some few circumstances, depending on the possession order, it may still be possible to apply to vary the possession order, with the emphasis on the ‘may’, but anyone would still be wise to apply to vary the order before the arrears were paid off.

    I’ll add a ‘get advice’ suggestion ;-) just in case

  5. I’ve seen orders that do not mention the fact that they shall cease to be enforceable once the amounts referred to in the order (ie arrears, costs etc) have been paid.

    Such orders have often included wording such as ‘the judgement for possession shall not be enforced so long as the defendent pay their rent plus X a week towards the arrears’.

    Now I think that as per Lord Justice Chadwick In Marshal v Bradford at 38 when he says

    The real purpose of the final paragraph of the order of 27 January 1989, as it seems to me, is to define the period during which the secure tenancy is to remain subject to a suspended possession order. Section 85(2) of the Act enables the court to suspend execution of the possession order for such period as it thinks fit. Without the final paragraph of the order, the suspended possession order would remain in force indefinitely. The tenant would be subject, indefinitely, to the threat that, on failing to make punctual payment of rent, the landlord could execute the possession order. Without the final paragraph, it would be no answer to say that the arrears had been paid off. The possession order would remain in force, subject to the condition under the third paragraph – punctual payment of the current rent – notwithstanding that the arrears had been paid off.

    That infact as part of the order includes the payment of rent then indeed it could be that if the tenant has paid off the arrears but misses a payment of rent then they have broken the terms of the order if there is not a ‘no longer enforceable’ type clause. Whilst seemingly unfair to the tenant at least they have an enforceable order which they can still vary. I think.

    I’m probably wrong and look forward to a whacking, but I just thought I’d give my two pennies!

    Far to confusing an area for a slacker such as me. That’s what referrals to solicitors are for ;)

  6. @house: On the contrary, you are eminently reasonable and quite right, as is Francis. I retract everything.

    I must be tired. On the one hand my powers of recall are shot – I’ve actually done a s.85 revival on just this basis – on the other hand, I’m overly argumentative. I’d better leave off posting for a bit.

  7. @NL Thanks. I’m glad we see eye to eye now. I’m often approached in situations where the tenant did pay off the arrears but is now in arrears again and the question then is: can we invoke s.85. My view is – yes we can in the circumstances (and many similar ones) that I have described.

    Possession orders do vary a lot and many judges don’t use the forms. A layperson might think that it would be better to have some standard form that they all use, but we have all seen the mess that leads to. Ho hum.

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