This will be a busy few weeks for me on the Homes(Fitness for Human Habitation) Act. On the off chance that anyone wants to hear and question me and others on the Act, here are some dates and details:
15 May 2019 – HLPA meeting, with Steve Lawrence of the Health and Housing Group. 6.30 pm. HLPA members only, Waterloo, London. Details here.
16 May 20189. National HMO Network Conference. From 9.30 am. City of London. Part of a full day conference. Details here.
23 May 2019 – SHLA event, with Karen Buck MP, Michelle Glazebrook and Andrew Dymond. 6.30 pm. City of London (and video links to Birmingham, Manchester and Exeter(!)). Details here.
13 June 2019 – LAG Housing Law Conference, with Karen Buck MP and Catherine O’Donnell (and much more and many others). From 9 am. University College London. Details here.
What is more, the sixth edition of what is now called “Housing Conditions: tenants’ rights is in print and available now! Co-authored by HHJ Jan Luba QC, Catherine O’Donnell and moi, this is billed (by other people, not just me) as “the definitive legal guide to bad housing conditions in rented accommodation in England”.
Because the people at LAG are lovely, they have arranged for a discount for NL readers of 10% off print, ebook or bundle (print and ebook) from Monday 13 May until Friday 24 May
The code for the discount is LANEARLY10
And yes, I am promoting things. I’ll live with it. I’m not making any more money from these things, unless the book wholly unexpectedly hits the best seller lists…
Meanwhile, and importantly, The Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) Regulations 2019 introduce a new Form 6A, which is the prescribed form of section 21 notice. This takes effect from 1 June 2019 and incorporates some changes for the Tenant Fees Act 2019. This must be used for all section 21 notices from 1 June 2019 (or at least for all tenancies and renewal tenancies that post-date 1 October 2015 – there is debate on those pre dating 1 Oct 2015, but my view is it applies).
It is strongly arguable that using the previous form 6A after 31 May 2019 would result in the s.21 notice being invalid, because the information about the Tenant Fees Act is relevant information.
Lastly, via the Daily Mail (I’m sorry) comes a tale of a dispute between a leaseholder and a residents management company (RMC) that highlights just how silly things can get in the leasehold world.
The leaseholder, who had a ground floor flat with patio area, was renovating the patio, with new paving slabs. The RMC apparently objected, demanding via solicitors that works stop pending consent, that there be an inspection of the replacement paving slabs, which were wrongly suspected of being too thin, that hanging baskets be removed as constituting a fire hazard, and that the gate to the patio be repainted. This was all alleged to be in breach of lease.
For weeks I could not sleep as I fought to save my patio.
The leaseholder is a barrister and Deputy District Judge. And was Not Impressed. Somehow, the saga encompassed the RMC complaining to the Bar Standards Board that it was being harassed by the leaseholder (which went to a hearing at which the RMC was unsuccessful), and the matter being listed for a 5 day trial at Central London County Court. The trial only lasted two days. The leaseholder won, but was only awarded half her costs. The hanging baskets were not a fire risk and consent had been received for the work beforehand, even though the RMC denied this.
One of the RMC directors is quoted as saying
‘We still don’t understand why we were ordered to pay half her legal costs. It’s all a dreadful waste of money’.
Well, yes, but the RMC brought the claim and lost. So…
The thing is – and this is where it gets sillier – because the RMC has no funds of its own, all the leaseholders in the development are having to stump up £2000 to cover the RMC’s and half the leaseholder’s costs, as a management cost under the service charge. That includes the leaseholder, who apparently didn’t obtain a section 20C order.
Is that the end of it? Sadly no. The leaseholder has apparently
issued fresh proceedings and is demanding around £500,000 in damages from the directors of the management company, claiming that the patio dispute caused her to suffer from depression, for which she received medication and counselling, led to a loss of income and also damaged her professional reputation.
It also includes some £100,000 of costs for fighting the BSB complaint.
Now, I’m not going to comment on live proceedings, or the merits of such a claim, but going against the directors of a company in person, rather than the company, is a steeply uphill battle in the best of circumstances.
But sometimes leasehold disputes take on the same character as neighbour disputes (indeed, they are a form of neighbour dispute) – and as every lawyer in the field knows, the first rule of neighbour disputes is ‘don’t go there. Insisting on principle will be very, very expensive for all concerned’.
Re: The new form 6A. Given that housing associations are exempt from ‘relevant information’ requirements, do you consider that using an inhouse version of the form would render the action invalid?
Use of form 6A is prescribed. I think you might have trouble on ‘substantially the same effect’ even if the note on ‘relevant information’ is not relevant.
>6A. Given that housing associations are exempt from ‘relevant information’ requirements, do you consider that using an inhouse version of the form would render the action invalid?
This interests me, Bill. Why would HAs be exempt from having to inform tenants of the Energy Efficiency of their homes?
Thanks.
I was previously strongly of the opinion that form 6A did not apply to pre-October 2015 tenancies due to the wording of the regulations, i.e. they said that they only applied to tenancies granted after 1 October 2015. The form was also clear to that effect..
However, on looking at the 2019 regulations, all they do is change the form in the 2015 notices regulations, i.e. they don’t limit its extent. It is now, i think, very hard to argue that this form does not apply to all tenancies irrespective of when they were granted. The Secretary of State has prescribed the form without limitation. It therefore must be used (even if the form says that it doesn’t! and it includes obligations that do not apply to all tenancies) What a mess.
Almost like they need specialist housing lawyers to get legislation right.
That is a good point. I leaned the other way on pre-October 2015 tenancies before, but recognised it was arguable. This puts it beyond doubt.
Does it put it beyond doubt? I thought the problematic part of the regulations was reg.3(fa) of the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015/620, and the fact that the 2015 regs that inserted it said they only applied to tenancies granted after 1 October 2015. (Regs 1(3),1(4) and 4(2) of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.)
Basically the argument would still be that while the content of Form 6A has changed as a result of the 2019 regulations, the actual requirement to serve the notice in the prescribed form in the first place and the fact it supposedly only applies in relation to tenancies begun after 1st October 2015 hasn’t been changed by the 2019 regulations.
Am I misunderstanding how the regulations work? I don’t quite follow how the 2019 regulations change this one way or the other. (Or is it simply that by removing the references to October 2015 in the prescribed form itself, it can be implied that the Secretary of State is now exercising their power in a way which prescribes the form without limitation, meaning that whatever your stance on whether regulation 3(fa) applied to older tenancies was before, it definitely applies to all tenancies once these regulations come into effect?)
Non-lawyer here, and far more likely to be in a position of trying to help tenants argue a s.21 notice is invalid than the other way, so I’d be quite happy to have it explained why I’m wrong. More curious to hear the explanation than anything else.
Section 37 Deregulation Act 2015 applies to all ASTs after October 2018 – Secretary of State may by regulations prescribe the form of notice.
These regulations say made in exercise of powers under s.21(8) Housing Act 1988
S.21(8) says “The Secretary of State may by regulations made by statutory instrument prescribe the form of a notice under subsection (1) or (4) given in relation to an assured shorthold tenancy of a dwelling-house in England.”
So, there we are, the Secretary of State has prescribed the form of notice, and no restriction to post October 2015 tenancies.
Ah, thanks. I see where you’re coming from now. What a difference a simple sentence at the start of the regulations makes. As Sam says, it’s like they need housing lawyers or something.
The new FORM6A on the gov.uk site still has not addressed the issue regard to the landlords name and address as only provides an area for the signatory. As it is prescribed and states landlords name and address, if it is not present and only the agent signatory information would that render it invalid, due to a defective form? I know this has been discussed on posts before and thought this time the form would have provided that additional space.
It doesn’t have to be landlord’s name and address.
Thanks for you reply. If the form is prescribed by law and states “landlord’s name and address” does that not suggest that it is required?
The form 6B also says, directly after that “To be signed and dated by the landlord or their agent (someone acting for them).”
It is settled law that a section 21 can be signed by the landlord’s agent, as their agent and proxy.
Thanks for your response on that.
I think the issue being raised is that if you don’t put the landlord’s name on the form, how has the “landlord” given notice for the purposes of s.21? The definition of landlord in s.45 does not include agent. There is obviously no problem with an agent giving it on behalf of the landlord, but without the notice specifying who the landlord is there may be a problem. I’ve certainly won on that point, long before the prescribed form was introduced, in the county court. .
There was no requirement for the pre Oct 2015 s.21s to be signed at all. Whether the agent gave the s.21 on behalf of the landlord is a factual issue – certainly the agent can’t do it off their own bat. I’d agree it is better if the form identifies the landlord, but given that the 6A expressly allows for signature by the agent (as acting for the landlord), I think that has to be OK.
There must be instances where an over-zealous agent has issued S21 off their own bat, then billed the landlord for the legal fees who reluctantly goes along with the possession hearing. Would the tenant be able to defend the case if the landlord admitted in court that he hadn’t initially instigated the S21 that led to the proceedings, even though he went along with it after the event?
Well the landlord has to sign the claim, so not just ‘turning up for the hearing’ – LL has to decide to bring proceedings.