The Landlord Law Blog

Landlord Law Blog roundup from 13 May

2013-05-19T09:11:43Z

I am a bit late with the roundup this week as I have been setting up a new service for Landlord Law members.

Its a new ‘bespoke’ tenancy service.

Members can request me to do up to five amends to my standard template (or more by agreement) to be set up so they can generate it online via my ‘document generator’ system in a private part of the site.

Plus I will try to get their logo on the agreement too. This is not as easy as it sounds as with the document generator things don’t always display as you expect. Tables for example are impossible.

But I think I have found a way to do it. You can read about the new service >> here.

But what happened on the blog?

Monday

Can tenants withhold rent for maintenance?

Tenants move in only to experience various problems All of which the landlord deals with but the tenants still withhold rent. Are they entitled to do this? See what I say here …

Tuesday

Resolving tenancy deposit non protection issues – interpreting the law

I ask a question and get some answers. See what they are here…

Wednesday

What is the best way to serve possession notices?

A blog clinic question from a letting agency employee who is worried that her manager may be serving notices the wrong way. Take a look here …

Thursday

Three misunderstanding about tenants rights when a section 21 notice is served on them

Just clearing up a few misunderstandings. Were they yours? Check here …

Friday

Ben’s Public Eye

A new series from Ben about social housing. We are in the year of the apocalypse. Read more here …

Ben’s Public Eye #1

2013-05-17T17:53:21Z

A monthly look at life in social housing land

2013 is the year of the apocalypse. Anyone working in front facing housing services has been dreading this year for quite some time.

The four horsemen of the Old Testament were

Famine
War,
Pestilence
Death

The four horsemen of 2013 are

Bedroom tax
The overall benefit cap
Universal credit and
Direct payments of housing benefit to social housing tenants

And just like the luckless population of ancient Judea, those most affected by this new apocalypse have no idea that it is even coming.

Today I interviewed two of my tenant clients, whose landlords had twigged to the oncoming debacle and are not going to be renewing their tenancy agreements.

Neither of these women want to force their landlord to get a possession order and have been trying to find alternative accommodation but nobody will touch them with a barge-pole.

They are financial lepers.

I explained the 4 horsemen above and one burst into tears as she realised the writing that is most definitely on the wall.

I suggested that she might be better served moving well outside of London and back to Leicester, where she fled domestic violence 2 years ago but she pointed to her mum, who was knocked down by a car last year and is in a care unit in Streatham, with only her daughter left to keep in touch.

What will she do? Move back to Leicester where her safety is under threat? Who then cares for mum? Decisions, decisions.

July for the benefits cap

The overall benefit cap throws it’s withered, ghostly leg over the saddle in July. At the moment a claimant gets their DWP benefits and separate payments from Housing benefit.

Come July it all changes. If your rent is £1,000 per month and you get £800 per month in DWP benefits then all housing benefit will pay is the £200 per month top up to meet the rent.

Stephanie Bottril – The first victim

Bedroom tax has already thrown it’s similarly rotting limb into the stirrups on April 1st and claimed his first victim in the shape of poor Stephanie Bottril, who killed herself last weekend, leaving a suicide note blaming the government for putting her home at risk.

Disabled from a very early age, Stephanie was hit by bedroom tax which put her £80 per month in debt and in danger of losing her family home.

Lord Fraud, the architect of this arrogant madness commented:-

“Clearly it is a desperately sad and tragic event, as you say. I and my colleagues send our condolences to the family. I’m not in a position to make any more comment. The relevant authorities need to investigate exactly what happened.”

Is it me? Or is that a cop out answer? We all know exactly what happened. Stephanie stepped out in front of a truck, leaving behind an articulate note with no ambiguities in it about the reason for her actions. What is it that the authorities need to investigate?

One of my clients this morning was of the opinion that crime will rise as people struggle to make ends meet. I heartily agree.

But it would appear that despite this vicious attack already being enshrined in law, nobody is taking it lying down.

Court challenges

Several cases were in the high court this week, confronting government in ways that challenge the UKIP/Daily Mail/IDS version of life at the bottom of the fish tank

Rebekah Carrier of solicitors Hopkin Murray Beskine who are mounting some of the 10 cases said:

“My clients are disabled children and their families who don’t have a ‘spare’ room.

Two of the families I represent have fled serious domestic violence and have only recently been able to settle down in their new, safe homes.

One family who were able to move to a suitable home after many years in appalling housing conditions have been told that their son would need to go into residential care if they moved to a smaller home.

This would cost the tax payer hundreds of thousands of pounds and would separate a disabled child from his family.”

And people are getting organised around this banner in ways that haven’t been witnessed for some years.

Benefit Justice

A coalition of campaign groups and trade unions have formed – ‘Benefit Justice’ – and are mounting a mass, national protest on the 1st of June, to coincide with Europe wide protests against austerity governance

Linda Burnip of the group Disabled People Against Cuts said:-

“Ministers are literally killing us with their savage and unjust cuts to housing, disability and other benefits. The war on benefits must stop now – never again.”

Whilst Eileen Short of Defend Council Housing said:-

“We do hold this Government responsible, and will tell every minister so, collectively and individually. The nation-wide day of protest on 1 June will honour Stephanie Bottrill’s memory in the best way we know.”

People are galvanising across the country, rallying to this particular flagpole and this is just the start.

Before you all attack me with accusations of being some pinko socialist agitator, be aware that I am simply reporting what I read and the comments made by my client’s on the front line of housing world.

Anti austerity

Much is being made this week about a referendum on staying in Europe but while government’s eyes are distracted elsewhere a bigger storm is brewing.

Not just in the UK either. Anti-austerity campaigns are springing up by the day.

It’s first manifestation in the UK is over Bedroom Tax but we still have to see the introduction of the benefit cap, universal credit and direct payments of HB.

Once those particular horsemen begin to nibble at the cud of the poorest, other campaigns and acts of defiance will start to surface and as is always the case with these things, there is a ready army of organisers waiting in the wings to maximise effects.

As the Chinese curse goes “May you live in interesting times”. We certainly do.

Four Horsemen of the Apocalypse picture

Three misunderstanding about tenants rights when a section 21 notice is served on them

2013-05-16T06:13:05Z

There are quite a few misunderstandings about tenants rights and what tenants are or are not entitled to do when a section 21 notice is served on them.

Here are the three most common ones:

1. The section 21 notice will end the tenancy

Actually it doesn’t. The tenancy will carry on after the expiry of the notice.

What the notice means is that if the landlord then goes to court, the Judge MUST (assuming the paperwork is correct) grant an order for possession.

2. The tenant must move out at the end of the notice period

No! The tenant has the right to stay in the property until evicted by the court.

The Protection from Eviction Act 1977 makes it clear that tenants can only be evicted after a court order for possession has been granted AND only by the court bailiffs (ie if the tenants fail to move out voluntarily).

So they do not have to move out.

3. The tenant does not have to carry on paying rent

This is rather an optimistic view held by some tenants which is COMPLETELY unfounded. Of course tenants must pay their rent!

The fact that that landlord has asked them to leave does not mean that they are suddenly entitled to live in the property rent free.

So what should a tenant do if they have a section 21 notice served on them?

Check to see if their deposit has been protected - if it has not, the notice will probably be invalid
Speak to the landlord. Does the landlord actually want you to go? Often these notices are served as a precautionary measure and the landlord does not actually want the tenants to leave
Get legal advice. If the notice is incorrectly drafted it will probably be invalid
If the landlord has confirmed he wants you to go and if the notice is correctly drafted – start looking for somewhere else to live. Or if you are eligible for re-housing – speak to the homelessness officer at your Local Authority.

Note that if your landlord has actually issued possession proceedings – you may find my guide here helpful.

What is the the best way of serving possession notices?

2013-05-15T07:50:18Z

Here is a question on service of possession notices, for the blog clinic from Julie (not her real name) who works for a lettings agency

I work in a letting agency. We serve notices on behalf of our landlords, in the past we always sent these by special delivery to make sure we had the tenants signature as proof they received it.

We now have a new letting manager and she has stopped us from doing this and instead we send the notices by standard post.

She said this is because she was involved in a case where a notice was signed for by someone who was not the tenant and the judge dismissed the case because the tenant said they had never seen the notice and didn’t know the person who had signed for it.

We are all a bit confused in the office because we cannot see how sending the notice by standard post is any better.

As a solicitor, what would you suggest is best?

Well I don’t like either ordinary post or recorded delivery for serving possession notices.

I don’t like recorded delivery because people can refuse to accept delivery of the letter which can cause problems.
I don’t like ordinary post either as there is no way you can prove that the letter was ever delivered.

For example, you can seve a possession notice by post, wait 2 months and issue proceedings only to get a defence filed saying that it was never received - and how are you going to prove otherwise? Things DO get lost in the post – although probably not as often as tenants allege …

My preferred method of service is by hand, delivering the possession notice to the property accompanied by an independent witness (just in case the tenant says the letter was never delivered).

If served this way, the possession notice should either be handed to the tenant personally, or posted through the letter box – it should not be handed to anyone who is not the tenant who happens to answer the door.

Its a good idea to check the tenancy agreement first to see what it says, but this method is usually acceptable (particularly if your tenancy agreement refers to s196 of the Law of Property Act 1925), and you will be able to prove that the notice was actually delivered.

If the notice is served by post, it should be accompanied by letter asking the tenants to sign and return an enclosed copy of the notice (and ideally, an SAE). If this is not done the notice should be re-served by hand.

Resolving tenancy deposit non protection issues – interpreting the law

2013-05-14T07:04:58Z

I have been looking at the legislation regarding the penalties for non protection of deposits, and have come across some interpretation issues where I would welcome some input from readers.

Say a landlord has failed to protect a deposit. He does not want the prospect of the tenant suing him for the penalty to be hanging over him for the next six years so he prefers to resolve it now.

He also suspects that at some stage he will want to evict the tenants so wants to keep his section 21 options open.

The law

Section 215 which is the section which deals with the prohibition on serving section 21 notices when the deposit has not been protected says, after the amendments in the Localism Act 2011 have been applied, as follows (per Lexis):

(1) [Subject to subsection (2A),] if a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when—

(a) the deposit is not being held in accordance with an authorised scheme, or

[(b) section 213(3) has not been complied with in relation to the deposit].

(2) [Subject to subsection (2A),] if section 213(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with.

[(2A) Subsections (1) and (2) do not apply in a case where—

(a) the deposit has been returned to the tenant in full or with such deductions as are agreed between the landlord and tenant, or

(b) an application to a county court has been made under section 214(1) and has been determined by the court, withdrawn or settled by agreement between the parties.]

…

I am having trouble with this section. First off, (1) presumably means that the failure to protect within the 30 days is an absolute bar to serving a s21, save for where 2A applies, as s213(3) says

s213(3) Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of [30] days beginning with the date on which it is received.

and presumably all the schemes will provide for the deposit to be protected within 30 days. Otherwise on the face of it, s1(a) might read as if you could serve the notice once you had protected the deposit ie outside the 30 days.

There is also a direct reference to section 2A there too, which I assume means that the draftsman wants compliance with 2A to be a condition of being able to serve a s21 notice. Although it does not really read like that – not to me anyway.

But I am particularly concerned with the bit in red.

The problem

If our landlord wants to dispose of the potential penalty claim, one solution is to make an offer to settle by making a payment to the tenant now. This seems sensible to me as the problem is resolved, the tenant gets a payment and the courts are spared another claim.

However does 2A(b) ONLY apply where the situation has been resolved in connection with court proceedings?

Let us take two examples. In both cases the deposit sum is £1,000, and in both cases the landlord has protected the deposit late with the DPS:

Landlord A – he agrees to settle with his tenant, Tenant A, now with a payment of £750 in full and final settlement. Both are pleased with this outcome.

The landlord is spared the prospect of the tenant bringing a claim against him in 5 1/2 years time. The tenant gets a welcome lump sum now which he can use to pay one of his pressing debts, and does not have to go to court to get it (the prospect of which terrifies him).

Landlord B – he is sued by his tenant for the penalty (perhaps with one of the no win no fee services available now or after using my kit).

However shortly after proceedings have been issued, he offers to pay the sum of £1,000 to the tenant plus the court fee and the claim is resolved on this basis.

Subsequently both landlords decide to evict the tenant using section 21. Landlord B is fine. He does not have to return the deposit as s2A(b) applies. But what about landlord A?

Can a landlord us s2A(b) if he settles?

It seems ludicrous to me that, on the face of it, Landlord A cannot take advantage of 2A(b). However that seems to be the way the clause is worded.

It this is the case, it would mean that landlords will be discouraged from resolving the matter by negotiation, which is generally what the courts prefer, being as there is such pressure on court time.

Or can the clause be interpreted in another way?

Does the wording or settled by agreement between the parties apply JUST in the context of a court claim, or does it stand on its own – meaning the Landlord A would not have to refund the deposit money before serving his section 21 notice.

What do you think?