Interesting Article on the Welsh Government website -Landmark landlord licensing scheme hailed as UK first

The article was written by the Housing Minister Lesley Griffiths on Monday 23 November 2015.

The article includes the following information for Landlords:

  • all private landlords will be required to register with Rent Smart Wales. They will also have to register their properties
  • if a landlord wants to manage the property themselves, they must demonstrate they are ‘fit and proper’ to hold a licence, and then undertake, and pass, approved training
  • alternatively, they will be able to appoint a licensed agent to manage the property on their behalf.

Landlords and agents have one year to comply with their new legal obligations, without fear of legal action.

For the Full article please see:

http://gov.wales/newsroom/housing-and-regeneration/2015/151123-landmark-landlord-licensing-scheme-hailed-as-uk-first/?lang=en

Ending a Tenancy in England After 1st October 2015

It was already complicated enough to evict a tenant at the end of a tenancy.  Legislators have now surpassed themselves and created even more obligations to be satisfied before a landlord can end a tenancy.

To navigate the dark recesses of tenant eviction law you need to know that there are a number of new laws and amendments to old laws strewn around the statute book.  It is now both tedious and laborious to come to a view about how the law will apply to any situation.  The many new obligations are triggered by various conditions so may be relevant in one situation but not in a slightly different situation.  There are various penalties for getting it wrong, including criminal sanctions or an inability to bring possession proceedings.  It really is a nasty cat’s cradle of new law.

Housing lawyers have already identified ambiguities in the law. No doubt more issues will come to light when the courts are required to try and clarify exactly what some of the new legislation actually means.  We confidently anticipate a repeat of the tenant deposit fiasco and have no doubt that perfectly innocent and decent landlords will again lose large sums of money as a result of poorly drafted legislation.

We are going to set out the main new requirements.  Please don’t rely on this, we may not have everything clear yet, and not every obligation applies to every situation.

For tenancies that start after 01.10.15, it is no longer possible to serve a s. 21 notice at the beginning of or in the first 4 months of a tenancy.  Further, a s. 21 notice is now only valid for 6 months.  If proceedings haven’t been issued within 6 months of the service of the notice, a new s. 21 notice will need to be served.  If the expiry date of the notice is required to be more than two months from the date of service, then the limitation period will be 4 months from the expiry date.

Again for tenancies commencing after 01.10.15, a s. 21 notice will be invalid if the landlord has not provided the tenant with a copy of a Gas Safe Certificate, an Energy Performance Certificate and the government’s “How to Rent” leaflet.  This is all in addition of course to the tenancy deposit regulations.

There is now a requirement to use a special prescribed form of s. 21 notice.  Although the new law says that you can choose to use the new prescribed form for older tenancies, you shouldn’t do so.  The new form refers to requirements that do not apply to older tenancies and so it would be inappropriate to serve a new notice for older tenancies.

It is now the case that where a tenancy ends during a period and the tenant has paid rent in advance, then a proportion of the rent must be re-paid to the tenant.

A complaint from the tenant about a disrepair issue can top a landlord serving a s. 21 notice.  If a local authority has served an improvement notice, a s. 21 notice will not be valid for 6 months from the date of service of the notice.  A notice will also be invalid where, before a s. 21 notice is served, the tenant made a complaint in writing about the condition of the property to the landlord, and the landlord did not provide an adequate response within 14 days or served a s. 21 notice in response to the complaint, and the tenant subsequently makes a complaint to the local authority who then serves a notice.

Properties must now have smoke and carbon monoxide alarms.  This applies to all tenancies in England. The landlord must ensure that they work properly at the beginning of the tenancy, and get them fixed of the tenant reports an issue after that.

The law surrounding assured shorthold tenancies is now so complex that this is surely the end of the road for the amateur landlord.  The professional landlord will now need to rely more heavily on professional advisors.  The do it yourself lawyer (with or without a DIY kit bought off the internet) is now at much greater risk of going wrong and wasting very significant amounts of time and money.  We predict that even some professional advisors are not always going to get it right.

They key is to get everything right at the outset.  Some breaches cannot be undone and the sanctions avoided.  Get advice from a proper solicitor who specialises in housing litigation when you wish to end a tenancy agreement.  A proper housing solicitor will be more likely to get it right, and will be properly insured, regulated and subject to an ombudsman if anything goes wrong.

Tenants and their advisors now have a bewildering wealth of technicalities to try and exploit in order to keep tenants in properties at the landlord’s expense.

We can help you at any stage in any part of England and Wales.

As always, this isn’t legal advice, it’s for information only.  We don’t guarantee that everything above is correct.  If you have an issue, you should get in touch and we can consider the actual problem in detail.

 

Simon J Vollans & Co., fixed fee help evicting tenants whether it’s in London, Cardiff, Newcastle, Plymouth, Birmingham, Newport, Swansea, or in fact anywhere in England or Wales.

Areas covered in England for our Ending a Tenancy in England service includes; South West England, South East England, West Midlands, East Midlands, North West England & North East England.

Tenant Eviction England & Wales: The Disaster is in the Details

Tenant eviction is a tricky process.  The law takes tenant’s security very seriously.  Evicting a tenant can seem like climbing a mountain.  There are a number of paths that you can take to the top of the mountain to evict your tenant. The best route to eviction depends on all the circumstances.  But be aware that putting a toe out of line can send you tumbling to the bottom of the mountain and having to start again.  This means additional expense and delay and there’s quite enough of that in the system already.

This is a cautionary tale to illustrate how easy it is to waste significant sums of money, quite unnecessarily.  It’s based on an actual case that we dealt with.  It wasn’t actually in South Wales; although our firm is based here, we conduct the eviction process for landlords anywhere in England and Wales using our own legally qualified advocates for court.  So it could have been London, Oxford, Manchester, Liverpool, Bristol or just about anywhere.  We’ll hide the details to save the guilty from embarrassment.

The story involves a house in which there were a number of separate tenants, each with exclusive use of a room together with use of the common parts.  Each tenant had a separate assured shorthold tenancy agreement.

One tenant was a nuisance.  There were late night parties, aggressive friends, lots of mess, the front door frequently left open all night, and there was a strange herbal smell around the house that had nothing to do with air freshener.

Because of the behaviour of this individual, tenants were leaving and challenging their obligation to pay rent for the rest of the agreement and in fact threatening to claim back the rent already paid. Those tenants that stayed were living in fear.  Naturally our landlord needed the tenant evicted absolutely as soon as possible.  We mentioned to our landlord client that the legislators had devised a ground for eviction for just such a circumstance, ground 14, which allowed the process to be speeded up.  We awaited our instructions to serve a notice and proceed to eviction.  We were surprised to hear nothing further.

Two weeks later, our landlord informed us that he had served the notice and given the tenant 14 days to leave; would we now start the court process.  Having carried out tenant evictions for landlords all over England and Wales, for example  London, Oxford, Manchester, Liverpool, Bristol, Newcastle and Plymouth (sorry to go on about this but we really want you to know that we can help with tenant evictions anywhere in England and Wales) we know that you landlords are all ever vigilant to save a shilling.  However, in this case, as often happens in tenant eviction, it was a false economy.  Had we been instructed to issue the notice (for a miserly fixed fee as set out on our website) we would have known that you don’t need to wait 14 days to issue proceedings when you rely on ground 14.  The tenant would have been evicted two weeks earlier and the £65 we would have charged to serve the notice would have been repaid many times over.

We know how difficult it is get it right.  Even solicitors have their moments.  A case comes to mind where a solicitor made a typo in the street name of the address of the property from which the tenant was to be evicted. It was only one letter of the street name, the post code and everything else was correct.  It cost a hearing fee, a process server’s fee, an additional advocate fee for the additional hearing, and several weeks loss of rent.  The point is though, that the solicitor covered all the losses in this case because they had made the typo.

The law is complex, the potential losses large and the fixed fees modest.  The mountain track to tenant eviction is strewn with bear traps.  Why would you take the risk without a guide?

Did I mention that we can deal with you tenant eviction in Liverpool, London, Oxford, Bristol, Newport, Swansea, Birmingham, Leeds, Sheffield, Bradford or pretty much anywhere in England and Wales?

 

This blog is written for general interest only.  The content of this blog is not legal advice and no lawyer-client relationship is created between any person whatsoever by the use of this blog and its contents.  Please do not rely in any way on the contents of this blog.  Your should consult us professionally or consult your own lawyer for legal advice.

Landlord & Tenant: Eviction and Deposits

A Section 21 Notice (and consequently, the Eviction) are Suspended Until Both the Deposit is Protected and the Prescribed Information Provided to the Tenant.

It has been mandatory for the landlord to protect the tenant’s deposit with one of three designated organisations  and provide “Prescribed Information”  to the tenant about how this has been done,  since 06.04.12.  If  the necessary steps are not completed, the court must order the return of the deposit together with a payment (under the old legislation) equivalent to 3 times the deposit.  The notice and subsequently, the tenant’s eviction cannot go ahead until the issues are dealt with.

The legislation was not well drafted and ran into problems with the courts.  Principally, landlords became able to circumvent the penalties and proceed with evicting the tenant simply by protecting the deposit at any time before the matter came to court.  Some amendments were made which came into force on 06.04.12.

It is now mandatory for the landlord to protect the tenants deposit and provide the prescribed information within 30 days of receiving the deposit.  The tenant is now able to make a claim under the legislation, for the return of the deposit and the penalty  of between 1 and 3 times the deposit, before or after the tenancy has ended.  A section 21 notice (and therefore any eviction) is suspended until the landlord returns the deposit, either in full or with deductions that have been agreed with the tenant.

A question came before the Court of Appeal recently.  What if the deposit has been properly protected by the landlord but the prescribed information not provided to the tenant?  The case was Ayannuga v Swindells  (2012) CA (Civ) 6  November 2012.  The landlord wanted to evict the tenant and brought a claim for possession,  the tenant entered a defence and counter claim based on the landlord’s failure to provide the prescribed information.  It was common ground that the deposit had actually been protected and that the Prescribed Information requirements had not been complied with.

Protection Without Information is Not Enough

The landlord argued that it was an inconsequential technicality not to fully provide the tenant with prescribed information and that the information was freely available from the scheme with which the deposit had been protected, and on the internet;  a minor technical oversight should not matter.  The lower court agreed with the landlord.  However, the Court of Appeal found that the information was of real importance as it told tenants how to dispute deductions without recourse to the courts.  The Prescribed Information must be supplied.  The landlord had to return the deposit and pay the tenant 3 times the deposit in addition.  Furthermore, the landlord had endured considerable delays in his efforts to evict the tenant.

It is fairly onerous to comply with the Prescribed Information requirements, however, it is hugely more onerous and potentially very expensive to have to deal with a defence and counter claim when trying to get possession of your property or even a claim for the deposit and penalty up to six years after the end of the tenancy.

 

This blog is for written for general interest only. The content of this blog is not legal advice and no lawyer-client relationship is created between any persons whatsoever by the use of this blog or its contents. Please do not rely in any way on the contents of this blog. You should consult your own lawyer for legal advice.

 

Landlord and Tenant Evictions

Mortgage and Landlord and Tenant Evictions

When the Mortgagor or Tenant Pays the Mortgagee or Landlord all  the Arrears During the Eviction Process

 

When arrears are paid to the mortgagee or landlord by the mortgagor or tenant to avoid an eviction before a possession order is made but after proceedings are issued, the lender or landlord will commonly ask for the matter to be adjourned generally.  This means that should arrears accrue again, the landlord or lender can bring  the possession claim back to court without the expense involved in re-issuing the claim.  When a matter is adjourned generally it is common for the judge to order that if there is no further application the possession claim be struck out after a certain date.

The Problem for Lenders and Landlords

 

The strike out date is usually 12 months ahead but a shorter period is not unusual.  If arrears return and the lender or landlord seeks a borrower or tenant eviction and an order is sought after the strike out date, the lender or landlord has to start the claim from scratch.  This is a waste of resources.

Strike out dates are justified on the basis that adjourned claims clog up the court’s resources.

When seeking the eviction of a borrower or tenant it is preferable for lenders or landlords not to have strike out dates imposed for the reasons already given.  Submissions should therefore be made in an effort to avoid them.

Some Help for Lenders or Landlords Seeking the Eviction of Problem Borrowers and Tenants

 

Anecdotally, it appears that certain courts in the North of England have ceased to impose strike out dates as judges have found that the court files are kept whether there is a strike out date or not.  This means that there is nothing to be gained by using a strike out date and resources are wasted for no purpose when claims have to be issued anew.

It is suggested that the practice of the northern courts be brought to the attention of local judges and that advocates remind the court who ultimately pays for starting fresh claims.

 

Landlords and Possession: Squatting is now a Crime.

 

Squatting and Possession of a Residential Property

 

Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on 01.09.12.

 

The new offence will be committed where a person does all of the following:

 

  • Is in a residential building as a trespasser, having entered it as a trespasser.
  • Knows or ought to know that he or she is a trespasser.
  • Is living in the building or intends to live there for any period.

 

The act applies whether the person entered the building as a trespasser before or after the commencement of section 144. However, the offence will not be committed by anyone holding over after the end of a lease or licence (even if they leave and re-enter the building). The offence is not applicable to commercial properties.

 

Landlord’s Possession Rights Are Now a Serious Matter

 

Alex Haigh, aged 21, is the first person to be prosecuted under the new act.  He pleaded guilty and was sentenced to 12 weeks in prison.  Previously, squatting was a civil matter and the authorities had limited powers to deal with squatters.

Squatters Can Take Possession from The Landlord

 

An analysis of the law of Adverse Possession is beyond the scope of this note.  However, in a nutshell, squatters can apply to take the property as the paper owner of unregistered land if they have possessed it as a trespasser for 12 years.  The same applies to registered land where the period of adverse possession relied on ends before 13.10.03.  The principle is that there is a limit to the amount of time in which the paper owner should be able to claim back land he or she isn’t using.  The law is based on the Limitation Act 1980.  There are of course a number of qualifications, but such applications appear to be to have been frequently successful.

In the case of registered land,  the process changed after 13.10.03 with the coming into force of the Land Registration Act 2002  on 13.10.03.  The squatter only now needs to be in possession for 10 years, however, the registered owner and anyone else with sufficient interest must be given notice of the application and have a chance to object.

Although it is more difficult for a trespasser to obtain registered title to a property under the new act, it is far from impossible and furthermore, being entitled to make such an application can be a defence to an action for possession even where such application hasn’t actually been made, s. 98 Land Registration Act 2002.

The squatter’s possession must be unlawful for time to run in the squatter’s favour.  A tenant or licensee’s occupation does not give rise to the potential loss of the landlord’s property for example.  Non payment of rent does not normally amount to adverse possession, but there can be exceptions.

This is a complex and shifting area of law and advice is, in our view, essential.

The Squatting Tenant’s Possession Now Illegal

 

There is a legal maxim to the effect that courts will not enforce a cause of action which arises from illegal or immoral conduct, recently considered in Smith, R (on the application of) v The Land Registry (Peterborough Office) [2009] EWHC 328 (Admin)

If it is illegal to squat, there is therefore a question as to whether the squatter should be able to obtain title to the property, based on their illegal act.  In the light of the legal maxim referred to above and described by those who prefer Latin as ex turpi causa non oritur actio, the answer should be; absolutely not.  However, in a decision by the House of Lords, Bakewell Management Limited (Respondents) v Brandwood and ors (Appellants) [2004] UKHL 14, their Lordships appear to have qualified the maxim. 

If the landowner can lawfully grant a right claimed (an easement in Bakewell) so that it wouldn’t be criminal, then the criminality actually  involved in the absence of such a grant would not be such as to engage the principle of ex turpi causa non oritur actio.  Would it then be right to say that, because the registered or paper title owner could consent to the squatter’s possession, the maxim would not be engaged?   If yes, then the squatter would be able, in principle, to claim the property notwithstanding the illegality of the squatter’s possession.

There seems to be favour for the view that the illegality now involved in squatting would be sufficient to defeat a claim for adverse possession in spite of Bakewell.  This is because Bakewell  could be distinguished on the basis that the claim was based on prescription, which in turn is based on a fictional presumption that permission had been granted at some point in the past.  In other words, permission is presumed to have been given.  This is not the case in adverse possession.

The counter argument might be that the principle derived from Bakewell is that the criminality that is capable of being extinguished by the land owner is of a different quality to criminality per se.  It is the ability of the landowner to grant the right, rather than the nature of the particular cause of action being employed, which disengages the ex turpi causa non oritur actio maxim.

No doubt there will be a helpful judgment in the not too distant future.  Whether or not a squatter can claim possession of the Landlord’s property is an important point.

What can a Landlord do to Avoid A Tenant Claiming Adverse Possession?

 

It sounds obvious, but make sure you know what is going on at your property.  If you have a squatter, do something about it.  The obvious course of action is to begin proceedings for possession.  However, consider also the option to grant a licence or tenancy instead, which will stop time running against the landlord.  If the property in question is registered, do not fail to serve a counter notice if the squatter applies for registration.

Given the value of the asset in question, it is, in our view, vital that landlords seek advice.

As always, feedback and experience is welcomed.

Simon Vollans LL.M. (Bristol) Barrister and Solicitor – 05.11.12

This blog is for written for general interest only.  The content of this blog is not legal advice and no lawyer-client relationship is created between any persons whatsoever by the use of this blog or its contents. Please do not rely in any way on the contents of this blog.  You should consult your own lawyer for legal advice.

 

 

 

 

Welcome to the New interactive blog from SJV Solicitors.co.uk

This blog will contain lots of information about the Landlord legal services, Letting Agents legal services and Tenant legal services on offer from SJV Solicitors as well as useful information and news about Landlord Law including Property Law and Tenant Law including Tenant Eviction as well as other things of interest to Landlords, Tenants and those dealing with the law around evictions, rent arears, disputes and disrepair.

This blog will be providing regular posts and news on Landlord and Tenant legal and law issues so please follow the blog or keep coming back and hopefully you will find something of use or of interest to you.

If you want to see more about the Legal Services we can provide to Landlords, Letting Agents and Housing Associations please see our main website: http://www.sjvsolicitors.co.uk/landlord_services.html

More about SJV Solicitors – Landlord & Tenant Solicitors in England & Wales

Our principal, Simon Vollans, was formerly a barrister, having been called to the bar in 2001. Since then, Simon has personally assisted clients with more than 3,500 matters. Clients have included individuals, small and large businesses, banks, building societies and insurance companies.”

Simon provides advocacy training and consultancy to other law firms. He has been involved in high profile land disputes and has had considerable media exposure in local and national news, as well as appearances on programmes such as GMTV, Richard and Judy and Neighbours from Hell.

More recently, Simon cross qualified as a solicitor in order to found this firm.

Simon has been chair of a Housing Association and currently chairs a legal action group.

Areas covered by our Landlord & Tenant Solicitors in England & Wales

Wales

We can provide Landlord & Tenant Solicitor services, including Tenant Eviction, Rent Arrears Recovery and Debt Collection to Landlords, Letting Agents and Housing Associations in all of Wales including, South Wales, South West Wales, South East Wales, Mid Wales and North Wales.  This includes Landlord & Tenant Solicitor services, including Tenant Eviction, Rent Arrears Recovery and Debt Collection to Landlords, Letting Agents and Housing Associations in Carmarthen, Llanelli, Swansea, Neath, Portalbot, Bridgend, Vale of Glamorgan, RCT, Caerphilly, Cardiff, Newport, Cwmbran, Pontypool, Chepstow, Monmouth, Abergavenny, Mertrhyr, Brecon, Powys, Wrexham, Bangor, Rhyl etc.

England

We can provide Landlord & Tenant Solicitor services, including Tenant Eviction, Rent Arrears Recovery and Debt Collection to Landlords, Letting Agents and Housing Associations in all of England including, South West England, South East England, West Midlands, East Midlands, North West England and North East England including Landlord & Tenant Solicitor services, including Tenant Eviction, Rent Arrears Recovery and Debt Collection to Landlords, Letting Agents and Housing Associations in Bristol, Gloucester, Reading, London, Brighton, Southampton, Portsmouth, Birmingham, Derby, Leicester, Nottingham, Stoke, Manchester, Liverpool, Leeds, York, Newcastle etc.