Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

28 April, 2011 • 15:03 1

Mobile Homes and Article 8!

In Murphy v Wyatt the Court of Appeal Wyatt brought in a mobile home to replace a dilapidated caravan after her partner Mr Barrett died. The caravan was located on just under 2 acres of rough pasture which the Wyatt’s partner used for his livery business. The landlord served a notice to quit in 2009.

Mr Barrett entered into a oral weekly tenancy in 1975 and in 1979 he moved a caravan onto the plot and began sleeping in the same from time to time. His relationship with Wyatt began in the mid-80s and in 1989 Wyatt moved in with Mr Barrett. In 1996, Mr Barrett then ceased using the land for his livery business.

Mr Barrett then sought a certificate of lawful use for the caravan in 2002 in order to claim Housing benefit. Upon Mr Barrett’s death in 2002 Wyatt continued living in the caravan and paid rent with Murphy’s consent.

The caravan was then replaced in 2007 with a mobile home. Wyatt failed to obtain planning permission and failed to obtain Murphy’s consent. The mobile home was on the same original location but was slightly larger than the caravan. Again the certificate of lawful use was obtained.

The issue before the Court was therefore did Wyatt have security of tenure under the Mobile Homes Act 1983.

The court held that Wyatt did not and found in favour of Murphy. The reasoning for the courts decision was that the 1983 Act could not apply to a tenancy where planning permission was sought after the tenancy term began. The court held

“it would be a little surprising if the 1983 Act protected an occupier, who, after entering an agreement, brought a caravan onto the premises and lived in it, simply because there was nothing in the agreement which precluded his from doing this, unless there has always been planning permission for such a use…”.

The court also held that they did not believe that the 1983 Act could apply to more land than the land on which the mobile home is to be sited plus any garden or other amenity land. If the Act applied to land other than the pitch that was for the tenants use this would run into “serious conflict” with the legislation protecting business and even agricultural tenants.

Wyatt sought permission to appeal but was refused. The court did however state that if any further applications for possession of this site are made the courts may need to consider Article 8 of the European Convention on Human Rights.

Whilst we can not fault the court for its reasoning it is unfortunate that the issue of Article 8 was dealt with so swiftly and briefly. With the influx of cases recently suggesting that Article 8 is only applicable to social landlords there are fears among private landlords that the scope of Article 8 is going to be extended and some certainty would have certainly been welcome.

Filed under: England & Wales, FLW Article, , , , ,

27 April, 2011 • 11:08 0

Business Tenancies

Its been a while since we blogged on business tenancies so here goes.

In Somerfield Stores Ltd v Spring (Sutton Coldfield) Ltd the tenant held a supermarket and adjoining land under three commercial leases which expired in March 2008. The year before the expiry the tenant had served a section 26 notice pursuant to the Landlord and Tenant Act 1954 requesting a new tenancy. However the landlord served counter notices stating that it would oppose the grant of the tenancies under section 30 of the 1954 Act on the ground that the landlord intended to demolish or reconstruct the premises on the termination of the current tenancies. The tenant therefore applied to the court for the new leases.

The Landlord subsequently went into administration but the tenant was granted permission to continue with the proceedings and applied for summary judgement against the landlords ground of opposition. Initially the tenant’s application was refused but the tenant was granted permission to appeal.

At appeal the landlord contended that the date at which the landlord’s intention to demolish or reconstruct must be shown to exist is the date of the substantive trial of the landlord’s ground of objection, not the hearing of the application for the summary judgement. The tenant contended that the hearing of the summary application would establish whether the landlord had a real prospect of establishing a cause of action or defence at a future trial date not whether or not the intention exists.

The court held that the summary judgement would deal with the finding of fact only, that is whether the landlord intended to rebuild or not and you can not do this effectively using the summary judgement procedure. When a fact is contested the parties are usually cross examined but a summary judgement application is done on paper and as such the facts are going to be difficult to establish. Therefore the intention will not be established at the summary hearing and a further hearing will no doubt be required.

It was therefore in the courts view that the date at which the intention had to exist was the date of the trial. At a substantive trial evidence can be tested and facts found for the purpose of a final determination one way or the other of the landlord’s ground for opposition.

The logic behind this decision makes perfect sense from a litigation point of view. If the tenant was permitted to continue with the summary application as claimed this would simple raise costs for what is already a costly process and could no doubt result in tenants attempting to use this in order to force landlords to settle.

Filed under: England & Wales, FLW Article, , ,

27 April, 2011 • 08:33 3

Vacation..

I went away, Rome in fact, and now I am back, posts will therefore be posted……

Filed under: England & Wales

14 April, 2011 • 17:22 3

Fire Safety in Wales

On the 7 April the Domestic Fire Safety (Wales) Measure 2011 became law.

The legislation requires the installation of a fire suppression system (sprinkler system to you and I) in all new or converted residential properties. Landlords will be required to ensure that the system is operating effectively prior to the start of the tenancy.

With any new or converted build when applying for building consent this legislation will also need to be complied with. This means that along with the standard drawings for the build there must be paperwork about the fire suppression system. If these details are incomplete or insufficient this will delay the building works altogether.

Failure to comply with the legislation will result in a maximum fine of £5,000 and will be enforced by the local council.

Filed under: England & Wales, England only, ,

11 April, 2011 • 09:46 7

To take Possession or not to take Possession

Landlords are commonly faced with a tenant’s disappearing act, most often as a result of the tenant being in financial difficulties. Although landlords instantly feel relieved by not facing an expensive and lengthy court procedure what beckons is the likelihood of entering into the unknown world of abandonment.

Some assistance is given under the provision of section 5 of the Housing Act 1988, which in summary confirms a tenancy only ends when a tenant voluntarily gives up possession or a Court Bailiff executes a possession order. For a surrender to be effective it must be unequivocal between the landlord and tenant. Surrender does not just take place because the tenant hands the keys back, there must also be some agreement by the landlord. Nor does the granting of a possession order in it self permit the landlord to take back possession. It is the execution of the possession order by a Court Bailiff that lawfully entitles the landlord to possession.

But this has little use when a tenant has absconded, unknown to the landlord whether the tenant will return or not. A wrong move may result in a landlord and their agent being faced with civil and/or criminal proceedings for unlawful eviction.

So what may constitute abandonment

This is not exhaustive and will depend on each individual case but some consideration should at least be given to the following before possession is taken:

• Are there rent arrears, in particularly most recently?
• Has the tenant removed his possessions?
• Has the tenant left food in the fridge that may have gone off?
• Has the tenant left post at the property?
• Ask the neighbours if they have seen the tenant or seen anything unusual?
• Has the tenant left all the keys in the property?

In addition to the above, a landlord will be strongly advised to serve what is often referred to as an Abandonment Notice. This provides a 14 day notice warning the tenant that if they fail to contact the landlord, possession will be taken. However, it must be noted that abandonment is not a legal procedure but a process of proving to the court in the event of a claim for unlawful eviction that all reasonable steps were taken before possession was taken back. This may prove to be a persuasive defence. If there are any doubts then a possession order should be sought.

Given the potential repercussions of abandonment, considerations must be given when dealing with these situations. In particular, agents should ensure a process is in place and landlords are fully advised before possession is taken back.

Filed under: England & Wales, FLW Article, , , ,

7 April, 2011 • 22:06 0

Carbon Monoxide

In December 2010 the Health and Safety Executive released a Safety Notice to raise awareness of the potential dangers from certain types of flues connected to gas-fired central heating installations in some properties.

Unfortunately the Notice was released following the death of a person in a property earlier that year but there is now an obligation on Landlords to take action before the 31 December 2012.

Where boilers are located away from external walls, flues are more likely to run through ceiling (or wall) voids. In such cases when the gas appliance is serviced or maintained it can be difficult, if not impossible, to determine whether the flue has been installed correctly or whether it is still in good condition.

Unless the gas engineer can make these checks they cannot ensure that the flue from the boiler is safe in order to comply with their legal duties. The engineer will therefore only be able to comply with his legal obligation if appropriate inspection hatches have been installed. Landlords are advised that after the 31 December 2012 if the hatches have not been installed the gas engineer will not carry out the inspection.

If the flue is not inspected and a fault overlooked, dangerous levels of carbon monoxide (CO) could be released into the living accommodation. CO is a colourless, odourless, tasteless, poisonous gas produced by incomplete burning of carbon-based fuels. It stops the blood from bringing oxygen to cells, tissues, and organs and can kill quickly, without warning.

We have blogged on the dangers of CO poisoning here and whilst landlords will note they have approximately 2 years to install the hatches, action should be taken sooner rather than later.

Filed under: England & Wales, England only, , ,

7 April, 2011 • 10:21 3

Deception

Whilst this topic has very little to do with the issues we normally deal with we thought some readers may find this article interesting.

Mr Beesley obtained planning permission to construct a barn. However, he actually constructed a 3 bedroom house and disguised it as a barn. He and his wife then lived there for 4 years undetected however, when Mr Beesley then applied for a certificate of lawfulness the certificate was refused.

The case has had quite a lot of publicity with many people divided on whether Mr Beesley should or should not be granted the certificate of lawfulness. That decision we leave to you.

What Mr Beesley did after the 4 years of occupation was to apply under section 191 of the 1990 Act for a certificate of lawfulness of the building as a dwelling house in reliance on section 171B(2) on the ground that there had been change of use of the building from the permitted barn to that of a single dwelling house and that the four-year period within which enforcement action had to be brought had elapsed.

However the Supreme Court took the view that there had been no change of use of the building to use as a single dwelling house for the purposes of section 171B(2) as the building had never been constructed or used as a barn. They further held that the issue was whether it could have been the legislator’s intention that a person conducting himself like Mr Beesley could invoke the benefits of sections 171B and 191.

Mr Beesley’s conduct consisted of positive deception in matters integral to the planning process and was directly intended to and did undermine the regular operation of the process. If the certificate was issued he would have profited directly from that deception if the passing of the normal four-year period for enforcement which he brought about by deception were to entitle him to resist enforcement. This, the court held could not be the intention of the legislator.

To quote Lord Brown of Eaton-Under-Heywood USC

on any possible view the whole scheme was in the highest degree dishonest and any law abiding citizen would be not merely shocked by it but astonished to suppose that once discovered, instead of being enforced against, it would be crowned with success and Mr Beesley entitled to a certificate of lawful use to prove it. The dishonesty involved in this case appeared to constitute a category all its own in this area of the law.

The council is now to make a decision on the continued use of the building as a dwelling house and additionally on its construction.

Filed under: England & Wales, FLW Article, , ,

4 April, 2011 • 11:48 16

The Position of the Stakeholder

After the introduction of Tenancy Deposit Protection agents are required, where they are holding deposits, to do so as a stakeholder. We have noticed that on the Helpline there is still some confusion about what this actually means.

The case of Manzanilla Limited v. Corton Property and Investments Limited; John Maciver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a firm) [1996] EWCA Civ 942, sets out the position of a stakeholder very clearly:

Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract between the two principals, the landlord and tenant in our case, which contemplates two possible alternative future events and by which the parties agree to pay a sum of money to a stakeholder to abide the happening of one or other of them. In the case of a tenancy agreement, the relevant event would be the failure to maintain the Premises for the duration of the agreement or to pay any costs associated with the occupation of the Premises, such as utility bills. The second contract is the tripartite contract which results from the deposit of the money with the agent as stakeholder on terms that he is to keep it until one or other of the relevant events happens and then pay it to one or other of the parties accordingly. The agent as stakeholder is a party to the second contract but not the first. The agent’s rights and obligations are not normally expressly spelled out. They are implicit in the transaction itself, and must be discovered, not by implying terms, but by analysing the relationship of the parties which arises from the deposit of the money.

The following propositions emerge from the authorities:

  1. The relationship between the stakeholder and the landlord and tenant is a contractual one. The relationship is that of debtor and creditor, and is similar to that between a banker and his customer.
  2. An agent is normally entitled to retain the interest on the money. This is usually described as his reward for holding the money. This right may be excluded by special arrangement, usually within the tenancy agreement
  3. Until the event which the stakeholder holds the money against happens, the agent holds the money to the order of both the landlord and tenant and is bound to pay it (strictly speaking an equivalent sum) to them or as they may jointly direct.
  4. Subject to the above, the agent is bound to await the happening of the event and then to pay the money to one or other of the parties according to the event. For a lettings agent this event will usually be the end of the tenancy and an agreement between the parties as to what should happen to the money, the decision of a Court, or a request from an approved TDPS to pay the money to them to await dispute resolution. The money is payable to the party entitled on demand, and if the agent fails to pay in accordance with a proper demand he is liable for interest from the date of the demand.
  5. If the occurrence of the event is disputed, the agent cannot safely pay either party, for if he mistakenly pays the party not entitled the payment will not discharge his liability to the other. In these circumstances he may (i) interplead and pay the money into Court; (ii) retain the money pending the resolution of the dispute; or (iii) take the risk of paying one party. The choice is entirely his.
  6. If he takes the second course, he may notify the parties that he is content to await the outcome of the dispute. There is then no need to join him in any proceedings which are taken to resolve it. If he is not joined, the Court cannot order the money to be paid to the successful party. All it can do is to declare that the successful party is entitled to give a good receipt for the money. In practice this is now unnecessary as the agent will normally be required to pay the money to an approved TDPS who will hold it pending the outcome of any Court action.
  7. If the agent is not content to wait for the outcome of the proceedings, he may be joined in to those proceedings in order to compel him.

Whilst the position seems clear in light of the above it is strongly recommended that the agent advises both the landlord and the tenant what the stakeholder principle entails and assures them that no action will be taken until the dispute between them is resolved.

We find more often than not that agents become embroiled in dilapidation disputes at the end of a tenancy and to the frustration of landlords fail to refer the matter to either the appropriate TDPS in the correct time period or advise the parties to seek legal advice. Whilst some agents perseverance is commendable sometimes walking away and allowing the landlord and tenant to talk to each other is the better option.

Filed under: England & Wales, England only, ,

4 April, 2011 • 10:15 0

Fire Safety Update.

Many of our readers will recall that we previously blogged on the Fire Safety (Protection of Tenants) Bill 2010-11. Although we stated in this article that the Bill was unlikely to be made law, we thought it may interest some to note that the second reading of the Bill is now scheduled for some time in October this year.

Filed under: England & Wales, England only, , , ,

Categories

RSS CLG Housing What’s New

  • An error has occurred; the feed is probably down. Try again later.

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 905 other followers

Have you tried the PainSmith toolbar?

Useful links and access to the PainSmith blog in a convenient toolbar within your web browser. Available from: painsmithlettingshelper.ourtoolbar.com/
Follow

Get every new post delivered to your Inbox.

Join 905 other followers