Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

New Gas Safety Regime

From 1 April 2009 CORGI will no longer be the official gas safety regulation body. The role will be taken over by the Gas Safe Register which is operated by Capita.

This has occurred because CORGI’s contract with the HSE came to an end and, while they tendered for a renewed contract, they were beaten by Capita who have promised a gradual reduction in the cost to gas engineers as well as an aggressive public awareness campaign.

From 1 April engineers must be registered with the Gas Safe Register to carry out work. Old CORGI registrations will not be valid. Engineers have had since January of this year to sign up with the new scheme so there will be no grace period.

From a landlord or agents point of view it is important to check that gas engineers that have previously been used are registered with the new scheme. All members will have ID cards and they can be checked either on the register website or by telephoning 0800 408 5500.

Current landlords gas safety certificates issued by CORGI engineers will remain valid, even if they expire after 1 April 2009 but on expiry they will have to be replaced by certificates conforming to the new scheme. After 1 April any certificate produced by an engineer not registered with the new scheme will not be valid.

A leaflet is available giving more information which also includes a picture of the new ID card.

The responsibilities and penalties as regards failing to have a valid certificate remain unchanged.

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Repossession Pre-Action Protocol

The current economic climate has seen many properties repossessed by lenders that are increasingly concerned about the downturn in property values and the risk of a drastic reduction in the equity (if any remains) of properties. The government has responded to the ‘credit crunch’ by introducing a pre-action protocol for both money and possession claims by lenders on residential properties. The protocol came into effect on the 19 November 2008 and applies to proceedings commenced after that date.
The protocol seeks to ensure that the lender makes every attempt to assist the borrower prior to possession proceedings being commenced. Such assistance should include pre-action contact with the borrower in an attempt to reach an agreement, which could lead to a change in the mortgage type or payment date or some form of payment holiday so that the borrower has a realistic chance of complying with his obligations.
However the protocol fails to close a loophole available to lenders intending to enforce their security on a residential property without obtaining a court order. In some cases lenders appoint a receiver under s109 of the Law of Property Act 1925 to sell the property, causing the borrower and even their tenants, who were originally occupying it to become trespassers. Mr. Justice Briggs ruled in October in Horsham Properties v Clark & Beech (2008) EWHC 2327 (Ch) that this did not breach the borrower’s rights under the European Convention on Human Rights.

No doubt lenders will find that the new protocol is an obstacle to them obtaining possession expeditiously. However, the protocol provides no protection for buy to let mortgages and thus mortgage companies may be more aggressive in this area by way of compensation. Whilst the courts have recognised that this is an area of concern they are powerless to do anything and as such the government will need to step in if landlords are to be afforded similar protection.
Agents that are contacted by Section 109 receivers should request that the receiver confirm instructions in writing. Upon receipt of the written instructions they may then comply with the same despite any objections raised by the landlords. Due to the Data Protection Act 1998, the receiver will not be in a position to discuss the details of the possession with the Agents unless the landlord’s specific consent is sought which is unlikely, and therefore obtaining the written instructions is paramount.

Filed under: Uncategorized

Mortgage Possession- Tenants Notice

The 49th update to the Civil Procedure Rules comes into force on 6 April 2009. Part of the update amends rule 55 which governs possession actions and, particularly, amends the rules on mortgagee possession claims.

Currently rule 55.10 requires that the mortgagee send a letter to the property addressed to ‘The Occupiers’ not less than 14 days before the hearing for possession. This requirement has been amended to force the mortgagee to send the notice not more than 5 days after receipt of the hearing details thus giving occupiers approximately 2-3 weeks more warning of a possession hearing.

Unfortunately the rules do not require any more than this and many people assume post addressed to ‘The Occupiers’ to be junk mail – something the amendment could easily have addressed by requiring a notification on the outside of the envelope. However, where such a notice is not sent in time the tenants could appear in Court and seek an adjournment of the hearing due to the mortgagee’s failure to comply with the rules. The added cost of this might induce the mortgagee to negotiate with the tenants – allowing them to stay in the property on payment of rent direct to the mortgagee, for example.

In practical terms, those acting for tenants should remind them to open all post addressed to ‘The Occupiers’ and should keep in mind the possibility of forcing an adjournment where the rules have not been adhered to as a method of extracting concessions from the mortgagee.

With thanks to Francis Davey.

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