Starting on Monday

Published
by
J
on 4 October 2008
in Housing law
. 5 Comments

A big week for housing law next week. The House of Lords is hearing Knowsley Housing Trust v White [2007] EWCA Civ 404 (tolerated trespassers and assured tenancies in the context of a preserved Right to Buy) Porter v Shepherds Bush Housing Association [2008] EWCA Civ 196 (do assured tenancies give rise to tolerated trespassers at all) and Honeygan-Green v LB Islington [2008] EWCA Civ 363 (the revival of the Right to Buy with the revivial of a secure tenancy and the relevance of previous steps in the RTB process).

However, despite granting permission to appeal in the case of London & Quadrant Housing Trust v Ansel [2007] EWCA Civ 326, we are reliably informed that the case has settled and now won’t be dealt with.

So - having created the nonsense of tolerated trespassers in LB Brent v Burrows [1996] 1 WLR 1148, lets see if their Lordships can finally sort it out. Just in time for most tolerated trespassers to be abolished and have their tenncies restored by Sch. 11, Housing and Regeneration Act 2008.

Transferred Trespassers

Published
by
NL
on 1 October 2008
in Housing law
. 0 Comments

As it stands, Schedule 11 of the Housing and Regeneration Act will end the existence of tolerated trespassers who meet these conditions:

(i) the home condition is met (ie that the dwelling house remains the ex-tenant’s
only or principal home).
(ii) the ex-landlord is entitled to let the dwelling-house, and
(iii) the ex-landlord and the ex-tenant have not entered into another tenancy after
the date on which the original tenancy ended but before the commencement
date.

This will cover virtually all tolerated trespassers whose landlord has remained the same. They will get a ‘replacement’ tenancy. But what of those where there was a stock transfer, or one RSL was taken over by another, during the period in which the (ex) tenant was a tolerated trespasser? This involves substantial numbers of people, given the major stock transfers of recent years.

At present, the Act will not change their position. It was raised as an amendment during the passage of the Bill, but the amendment wasn’t passed as the Government promised that the Act would give the power to make such a change by order, after further consultation, such that part 2 of Schedule 11 applies to successor landlords. (Somehow, they hadn’t thought to include this issue in the original consultation).

Now the consultation is here. The consultation document can be downloaded from the DCLG here. The closing date is 19 December 2008.

Interestingly, the documents authors state that:

Our preliminary view is that in all the above situations there is a strong case for arguing that it is unfair for a change of landlord, which is outside a tolerated trespasser’s control, to determine whether they have their tenancy status restored or not. There is also a very real risk that if the situation for transferring tolerated trespassers is not remedied, it could lead to further litigation, once the provisions in Schedule 11 are brought into force.

My view (and I will hazard also that of other NL contributors) is that there are issues of both fairness and practicality here. The tolerated trespasser ‘regime’ is already ludicrously complex and needs resolving once and for all, not piecemeal and with a whole set of fresh technicalities on who is in or out. This may well mean doing ourselves out of a whole fresh swathe of work, of course, but I think both tenant and landlord side housing lawyers (and those who do both) would heave a sigh of relief, both for themselves and (particularly) for their clients.

The full document is worth reading, raising issues with (ex) starter tenancies - assured shorthold for RSLs, introductory tenancies (where successor does not have an introductory scheme), secure to assured (LA to RSL transfers), and so on.

There are some particularly difficult questions - for instance on succession rights for an LA to RSL transfer. Some transfers give assured tenancies, but with contractual preservation of ’secure’ rights. What of a replacement tenancy’s succession rights?

What of the Court’s discretion to ‘backdate’ the tenancy for breach of tenancy agreement/s.11 claims (disrepair primarily)?

The full list of consultation questions follows, just so you are prepared to give answers…

Existing landlord practice relating to transferring tolerated trespassers
(1)  What is the usual practice of successor landlords when dealing with
tolerated trespassers? Will tolerated trespassers generally be offered a new
tenancy and, if so, what type of tenancy will they be offered? Does this
differ from the type of tenancy offered to transferring tenants?
(2)  In what circumstances would tolerated trespassers not be offered a new
tenancy?
(3)  Is it possible to identify occupants who have transferred as tolerated
trespassers and who have not been offered a new tenancy (ie who continue
as tolerated trespassers)? If so, is it considered that the numbers are likely to
be significant or relatively small?
(4)  Are there any benefits to landlords in the existing situation and, if so, what
they are?
(5)  Are the benefits to landlords sufficient to outweigh the disadvantages,
particularly for tenants?

Legislating for successor landlord cases
(6)  Should the Government introduce secondary legislation to ensure that
tolerated trespassers whose landlord has changed, but who have not
been granted a tenancy by the new landlord, have their status as tenants
restored?

Change of RSL landlord due to merger or takeover
(7)  Should tolerated trespassers who transfer from one RSL to another RSL (and
who are not granted a new tenancy by the successor landlord) be issued
with the same sort of tenancy as the original one?
(8)  If this resulted in tolerated trespassers receiving an assured tenancy on
starter tenancy terms (because the original tenancy was a starter tenancy),
would this cause difficulties for landlords?
Change of local authority landlord due to boundary adjustment
(9)  Should tolerated trespassers who transfer from one local authority to
another local authority (and who are not granted a new tenancy by
the successor landlord) be issued with the same sort of tenancy as the
original one?

Tolerated Trespassers: Successor Landlord Cases
(10) Where the tolerated trespasser had originally held an introductory tenancy
but the successor local authority landlord does not operate an introductory
regime, should he or she be issued with a secure tenancy?
Change of landlord from local authority to RSL following large scale
voluntary transfer
(11) Where no new tenancy has been signed, should transferring tolerated
trespassers who originally held a demoted tenancy under the 1996 Act be
offered a new demoted tenancy under the 1988 Act?
(12) Where no new tenancy has been signed, should transferring tolerated
trespassers who originally held an introductory tenancy be offered an
assured shorthold tenancy or a full assured tenancy?
(13) Where no new tenancy has been signed, should transferring tolerated
trespassers who originally held a secure tenancy be offered an assured
shorthold tenancy or a full assured tenancy?
(14) Are there any other options in relation to transferring tolerated trespassers
(who have not signed a new tenancy) which might be considered? If so,
please provide details on what these are and the advantages which they
would bring?

Demoted and introductory tenancies
(15) Where the proposals under consideration would result in a tolerated
trespasser being granted a new demoted or introductory tenancy, should
the trial period apply in full, or should they only last for the balance of time
left over from the original tenancy?

Private landlords
(16) Are there likely to be transferring tolerated trespassers in the private rented
sector and, if so, what is likely to be the scale of the problem?
Applying the provisions in Part 2 of Schedule 11 to successor landlord cases
(17) Should newly restored tenants who are already a successor under the
original tenancy be entitled to succeed under the new one?
(18) Where newly restored tenant are not already a successor, should the
succession rules which apply to them be those which are appropriate to the
new tenancy, or the original tenancy?
(19) Should the “termination period” count towards qualification for the
preserved right to buy, as it does for tolerated trespassers issued with new
tenancies under the 2008 Act whose landlord has not changed?
(20) Under part 2 of Schedule 11, where landlords have taken decisions regarding
individuals’ voting rights based on their status as tolerated trespassers,
these decisions cannot subsequently be challenged on the ground that
the local authority failed to include people in the consultation process
whom they should have included, or vice versa. Should this be extended
to successor landlord cases so that similar provisions would apply to any
consultation carried out by either the original or the new landlord during the
termination period?
(21) Part 2 of Schedule 11 gives the court discretion to treat the new tenancy
as the same as the original tenancy so that they can allow claims relating
to the period when the tenants was a tolerated trespasser. This applies to
claims by both landlords and tenants for breach of tenancy agreement, or
for the tenant to claim for breach of statutory duty. Should this be extended
to successor landlord cases for the purpose of a claim involving the new
landlord and the old landlord?
(22) Part 2 of Schedule 11 provides that the possession order and other court
orders made in respect of the possession proceedings will apply as far
as practicable to the new tenancy. Should similar provision be made for
successor landlord cases, so that any orders in the possession proceedings
apply to the new tenancy, so far as practicable?
(23) If so, should this depend on whether the new landlord has been made party
to the proceedings?
(24) In seeking to apply the provisions in Part 2 of Schedule 11 to successor
landlord cases, are there any other issues which we have not identified and
which would need to be considered?

Impact Assessment
(25) Does the impact assessment correctly identify the nature and extent of the
costs and benefits associated with the 4 options which are considered?
(26) Is it considered that any group is/groups are represented disproportionately
amongst tolerated trespassers in successor landlord cases?
(27) Is there any evidence to suggest that the options under consideration would
discriminate on the grounds of race and ethnicity; disability; age; gender and
gender identity; sexual orientation; religion and/or belief?

In passing…

Published
by
NL
on 30 September 2008
in Housing law and job
. 0 Comments

There was an interesting article in today’s Guardian on the legacy of Right to Buy, not exactly an in-depth piece, but featuring a number of the issues familiar to anyone who practicises in housing - from dodgy short term letting to major works charges on leaseholders. And above all, the lack of available decent stock for renting.

Stadium Housing to Appeal

Published
by
Francis Davey
on 30 September 2008
in Housing law
. 25 Comments

Regular readers of this blog will have read our comments on (in our view) a fairly poor example of service charge management by an RSL, entitled On the Naughty Step. To my surprise the RSL in question — Stadium Housing — have decided to appeal the decision.

This should prove interesting as they appear (so my information goes) to be appealing against

The first ground will be of particular interest as many LVT’s have one or more HLPA members on the panel. The idea that such membership should normally require recusal would have far reaching consequences. The other two grounds of appeal may also produce interesting comment from the Lands Tribunal.
Doubtless the decision on appeal — when it comes — will be blogged here.

Hey, you asked…

Published
by
NL
on 28 September 2008
in Housing law
. 8 Comments

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. Was that what you had in mind? I thought not. Otherwise, you cannot withhold rent and may face possession proceedings if you do.

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
If it is just you in a 3 bed property, and you have refused offers of alternative suitable accommodation, they can bring a claim for possession. There has to be suitable alternative accommodation on offer at the time of the hearing. The Court may then make a possession order, and if you still don’t leave, you may be evicted. What counts as a suitable alternative has a lot of case law about it, so see a solicitor.

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. 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.

Forthcoming events…

Published
by
NL
on 25 September 2008
in Housing law
. 0 Comments

NL may well feature more news of upcoming housing law events, seminars, workshops etc. etc. in the future. I have more or less decided that we’ll have a separate page for them. Anyone who wants their event etc. etc. listed on Nearly Legal is welcome to email the editor (use the ‘about’ page). But in the meantime…

Free Housing Law seminars in Oxford. At Nuffield College.

Large Lecture Room 1pm - 2.30 pm

21 October 2008
Professor Peter King - The Future of Social Housing

4 November 2008
Professor Steve Nickell - Housing Supply

18 November 2008
Professor John Muellbauer and Dr Anthony Murphy - House Prices

27 January 2009
Professor Peter Kemp - Private Renting

10 February 2009
Professor Susan Bright - The Changing Legal Landscape

24 February 2009
Professor Suzanne Fitzpatrick - Homelessness

5 May 2009
Professor John Ermisch - Household Formation

19 May 2009
Dr Mark Hinnells - Climate Change and Housing

Email events@socres.ox.ac.uk for booking, or download the PDF Flyer. (Which helpfully includes a map for those of us who went elsewhere).

Shared Ownership - Midland Heart with benefit of transcript

Published
by
NL
on 24 September 2008
in Housing law
. 0 Comments

The earlier post on this shared ownership possession case, Richardson v Midland Heart Ltd, (November 2007 Birmingham) attracted a lot of comment, some of it excitable and ill-informed (and much of that from me). Nearly Legal now has a copy of the judgment, and the benefit of time and reflection to go on.

Before we start, this was a County Court case, and apparently the appeal in this case is due to be heard on 5 & 6 November 2008. Also, apparently Midland Heart has not made the ‘voluntary payment’ of initial premium less arrears and costs (so not a lot) that was touted in previous press reports. (Thanks Michael Paget.)

The facts are largely as previously mentioned. Ms Richardson paid a premium of £29,500 for a 50% shared ownership lease in 1995. The freeholder was Focus Two, later Midland Heart Ltd The lease gave a rent of £1,456 per annum (with indexed increases). There were staircasing provisions to enable Ms Richardson to acquire further shares up to 100%, each time with a reduction in rent. Once she had acquired 100% of the shares, she could acquire the freehold. Ms Richardson did not exercise the staircasing provisions.

In 2003, Ms Richardson had to leave the property, following threats to her family. For a while housing benefit paid the rent on the property and her refuge place, but after a year this ended in Feb 2005. Arrears built up. At the end of Aug 2005, Ms Richardson decided to sell the property. Evidently Midland Heart, who would most likely have had the right of first refusal or to refuse, agreed to a sale and valued the property at £151,000. The property did not sell. In October 2005 (some two months later!) the HA issued possession proceedings, having served Notice on 15 Sept 2005 (a fortnight after agreeing to the sale!).

The Claim was under ground 8 Sch 2 HA 1988 and in Jan 2006 an outright order made on the basis that Ms Richardson was an assured tenant. In Dec 2006, Ms Richardson brought proceedings for a declaration as to the extent of her interest in the property and an order for sale or account for 50% of the proceeds of sale.

Ms Richardson, via Counsel Michael Paget argued that:

She had two tenancies, a long leasehold, subject to forfeiture, and an assured tenancy, protected by (and subject to) Housing Act 1988. The possession proceedings had terminated the assured tenancy, but not the lease. No notice under s.166 Commonhold & Leasehold Reform Act 2002 had been served and ‘forfeiture’ was not ticked on the claim form, so there was no proper procedural termination of the lease.

The Court did not accept the ‘two tenancies’ argument. There was one - of term certain - which fall under HA 1988 as an assured tenancy. No exceptions applied. As an assured tenancy, possession via forfeiture is ruled out - possession can only be under one of the grounds of the act. However, for possession for rent arrears, the HA 1988 provides that it is sufficient for the lease/tenancy to include provision for forfeiture for arrears, which Ms Richardson’s lease did.

S.166 & 167 CLRA 2002, on the requirement of a prescribed sum for arrears before forfeiture was possible did not apply as the definition of a ‘long lease’ in s.76 required a ‘total share’ of 100% for shared ownership leases. Ms Richardson’s was only 50%. In any case, the arrears were too large for s.167 to halt forfeiture. Additionally, there was no need to tick the forfeiture box on the claim form , as this was, strictly, a claim for possession.

There was no mortgage at the time of the possession hearing, so the requirements of  Practice Direction 55.2.4 on identifying mortgagees, etc. did not apply.

Secondly Ms Richardson argued that there was a trust. She conceded it was not a trust of the leasehold, but argued that the freehold was held on trust by the Housing Association for itself and Ms Richardson.

The Court did not pay much attention to this, stating simply that there was no foundation for the argument. The relation was simply that of landlord and tenant, with an option to obtain the freehold via staircasing, which was not exercised.

The Court said it was troubled by its own finding, particularly given the windfall that resulted for the Housing Association, and in view of the Housing Association’s actions at a time when they knew Ms Richardson was attempting to sell and were supposedly pursuing that sale on her behalf (and look again at the time scale above, two weeks after agreeing to sell there is service of Notice and a possession claim brought at the earliest opportunity after that. Some might consider that cynical behaviour, given that the HA ended up with a property worth £151,000). But that was the law.

I have noted in comments before that the apparent threat to a mortgagee’s security raied by this case is mitigated by the usual form of these leases which requires a lender to be notified by the landlord prior to any possession/forfeiture proceedings being brought for rent arrears. Thus the lender can pay off the arrears, secure the interest and either add the arrears to the loan or bring repossession proceedings against the tenant themselves. So that is cleared up. But this does still mean that the tenant’s interest, and the significant premium paid for it, can simply disappear with no remedy or recourse in the face of Ground 8 proceedings.

On reflection, I am not wholly convinced by the Court’s dismissal of a trust argument. I have no strong counter argument as yet, but there are a number of factors that go against the ’simple relationship’ of landlord and tenant that the Court found. For instance, the Land Registry registers the lease with a ‘no sole disposition’ restriction, typically entered for ‘tenants-in-common’ trusts. If a shared ownership property is sold, then the division of equity is in accordance with the ’share’ (I believe), and so on. It will be very interesting to see what the appeal brings up.

On the Naughty Step

Published
by
NL
on 21 September 2008
in Housing law
. 21 Comments

Or an RSL behaving badly, again. And this time it’s personal…

21 Press House, Press Road LON/00AE/LSC/2007/0292 [pdf], an LVT decision. The landlord, Stadium Housing Association, were facing an application over hefty service charges made on an shorthold assured tenancy which was Part VII temporary accommodation for Brent Council.

How did Stadium Housing decide to defend the case? By attacking the integrity of the Tribunal. Stadium pointed out that the chair, Nik Nicol, was a member of the Housing Law Practioner’s Association (yes, Hlpa!). Stadium, via their counsel Mr Grundy, alleged that:

the purpose of Hlpa was to promote the interests of tenants [...] and it was as plain as a pikestaff that an “ordinary member of the public” would perceive members of Hlpa as biased in favour of tenants.

Nik Nicol pointed out that he was not just a member, but had been on the executive of Hlpa for 9 years and helped to write the constitution. In addition, another member of the sitting Tribunal, Mel Cairns, was also a founder member of Hlpa and is currently on the committee.

Stadium, it was pointed out, had utterly failed to understand the difference between ‘promoting the rights of tenants’ (Hlpa aim) and promoting the interests of tenants. Finding in favour if a tenant without basis in evidence and law would not be promoting the rights of the tenant. In addition Hlpa’s code of conduct commits its members to professional behaviour. There could be little that was more unprofessional than judicial bias, which was what was being suggested.

Hlpa’s stated objectives were notably similar to those of most RSLs and would not look out of place on Stadium’s website, so it would be hard to see how a member of the public could perceive bias.

Mr Grundy’s submissions would mean that no member of Hlpa could ever hold judicial position, simply by that membership and that would make a mockery of the rigorous selection process. There was no bias or appearance of bias.

Just why Stadium might have taken this utterly ridiculous approach is clear in the rest of the Judgment. They were levying a walloping £129.72 per week service charge. However:

  • It was improperly apportioned under the tenancy agreement
  • Services had been changed without notification or consultation
  • Stadium could provide no breakdown of the charge
  • Charges weren’t audited, despite Housing Corp requirements
  • The charge was very high in comparison to others, for no reason, but it was usually paid by Housing Benefit, so nobody cared (except the applicant, who was working).
  • The contract was not individually negotiated so the Unfair Terms in Consumer Contract Regulations were engaged
  • The applicant was being asked to pay a charge for things that “no assured shorthold tenant in the private sector would even think of paying, even if the landlord were minded to try to impose it”.
  • On reasonableness of other charges, there was simply no evidence provided of the actual costs incurred by the respondent. The Tribunal wasn’t prepared to guesstimate on no evidence.

The result, service charges of £42.75 per week payable, a drop of £87 per week. This amount to be retrospective. No subsequent changes to the service charge made by the respondent were valid.

Oh dear, oh dear. Probably best not to impugn the professionalism of the Tribunal when it is your utter lack of professionalism that is about to come to light.

This challenge to service charges for temporary accommodation under Part VII is worth bearing in mind when, for example a client is facing a ‘rent arrears’ possession from temporary accommodation, if a service charge component is levied, at least. Stadium are far from alone in their cack-handed handling of the charge.

Harvey v Bamforth - now with the benefit of a transcript

Published
by
J
on 20 September 2008
in Housing law
. 0 Comments

Harvey v Bamforth 8PA13344, HHJ Bullimore, Sheffield County Court, 8 Aug 2008

When we first commented on this case (here) we provoked quite a response. Thanks to to Mr Jones of Bury Walkers (who acted for Ms Harvey) we have now been provied with a transcript of the judgment. So - here is what it says.

Mr Bamforth was the assured shorthold tenant of a property owned by Ms Harvey. A deposit was paid to Ms Harvey via her letting agents. The deposit was lodged with TDS within 14 days of the start of the tenancy.

Rent arrears began to accumulate and, in January 2008 (the transcript says 2007, but I think that must be a typo) possession proceedings were issued. The proceedings were defended on the basis that the prescribed information (s.213(5) and (6), Housing Act 2004) had not been provided. It was accepted by the landlord that the prescribed information had not been provided within the time specified in s.213(5) and (6), but was said that it had been provided at a later date. However, it seems that the landlord withdrew the possession claim, leaving only a money claim for rent arrears.

Mr Bamforth then issued an application for the return of his deposit and for damages of three times the value of the deposit. His application was heard by a Deputy District Judge who ordered that the deposit to be returned pursuant to s.214(3)(b) HA 2004 and ordered damages of three times the value of the deposit pursuant to s.214(4) HA 2004. Both sums set off against agreed rent arrears. The DDJ granted permission to appeal.

Ms Harvey therefore appealed both the order for the return of the deposit and the damages award.

s.213 Housing Act 2004 provides (insofar as is material):

213 Requirements relating to tenancy deposits

(1) Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.

(2) No person may require the payment of a tenancy deposit in connection with a shorthold tenancy which is not to be subject to the requirement in subsection (1).

(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 14 days beginning with the date on which it is received.

(4) For the purposes of this section “the initial requirements” of an authorised scheme are such requirements imposed by the scheme as fall to be complied with by a landlord on receiving such a tenancy deposit.

(5) A landlord who has received such a tenancy deposit must give the tenant and any relevant person such information relating to—

(a) the authorised scheme applying to the deposit,

(b) compliance by the landlord with the initial requirements of the scheme in relation to the deposit, and

(c) the operation of provisions of this Chapter in relation to the deposit,

as may be prescribed.

(6) The information required by subsection (5) must be given to the tenant and any relevant person—

(a) in the prescribed form or in a form substantially to the same effect, and

(b) within the period of 14 days beginning with the date on which the deposit is received by the landlord.

…

Section 214 Housing Act 2004 provides (again, so far as it material):

214 Proceedings relating to tenancy deposits

(1) Where a tenancy deposit has been paid in connection with a shorthold tenancy, the tenant or any relevant person (as defined by section 213(10)) may make an application to a county court on the grounds—

(a) that the initial requirements of an authorised scheme (see section 213(4)) have not, or section 213(6)(a) has not, been complied with in relation to the deposit; or

(b) that he has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme.

(2) Subsections (3) and (4) apply if on such an application the court—

(a) is satisfied that those requirements have not, or section 213(6)(a) has not, been complied with in relation to the deposit, or

(b) is not satisfied that the deposit is being held in accordance with an authorised scheme,

as the case may be.

(3) The court must, as it thinks fit, either—

(a) order the person who appears to the court to be holding the deposit to repay it to the applicant, or

(b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,

within the period of 14 days beginning with the date of the making of the order.

(4) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

…

Ms Harvey contended that the power to order the return of a deposit and damaged pursuant to s.214(3) and (4) only arose if the court was satisfied that s.213(6)(a) had not been satisfied and that compliance with s.213(6)(b) was irrelevant for these purposes. So - the power to order the return of the deposit and damages only arises if the landlord has failed to provide the prescribed information in the prescribed form (or one in similar effect). It is irrelevant, for the purposes of s.214(3) and (4) when that information is provided.

HHJ Bullimore accepted this argument. In his judgment:

[t]he failure on the landlord’s part was not that ‘the prescribed information was not given’ but that it was not given within the fourteen days. The district judge… took the view that [s.213(6)(a) and s.213(6)(b)] were so closely connected that they only made sense if they were read together but I think that was an error. I think that the draftsman in dealing with proceedings relating to tenancy deposits in Section 214 was very clear in differentiating between the requirements of giving information and giving the information after a specified period.

There were, to his mind, sound policy arguments for this conclusion:

… they are very serious powers to be exercised against a landlord… one can well see that in the minds of the legislators, it was one thing to deal with a landlord who had not provided the prescribed information at all and to deal with it in that way with a landlord who had provided the prescribed information but had not done it within that short period laid down by the Act.

Accordingly, as the information had been given before the tenant made his application, the application should have failed. The appeal was allowed and the order for the return of the deposit and the damages was overturned.

A final word of caution. This was only a decision of a county court and one that was only argued on one side (Mr Bamforth didn’t appear at the appeal). It is not a binding decision and other judges are perfectly free to come to other conclusions. As to whether or not it is right - I’ll leave that to you all to comment on!

A shameless plug: HLPA Conference 10 Dec 2008

Published
by
J
on 20 September 2008
in Housing law and Legal Aid
. 0 Comments

The Housing Law Practitioners’ Association annual conference is being held on the 10th December 2008 at the Royal Institute of British Architects, London. Those of you who subscribe to Legal Action should already have had your application forms, but, for everyone else, details can be found here. The speakers include:

  • Rabinder Singh QC on equality and discrimination law after Malcolm;
  • Andrew Arden QC, Jan Luba QC and Caroline Hunter on current issues in homelessness;
  • Robert Latham and Christopher Baker on allocation schemes;
  • James Stark, Derek McConnell and Bob Lawrence (CLG) on possession proceedings;
  • Matthew Hutchings and Stephen Cottle on housing and human rights.

The conference lasts from 9am till 6pm, is fully catered and attracts 6 CPD points. A day of housing law. With food. And CPD points. What more could you ask for?