Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

Legionnaires’ Disease update : what do you need to know?

We first blogged on Legionnaires’ Disease here, but as this seems to be a popular topic amongst our helpline calls it seemed time to revisit.

What is Legionnaires’ Disease?

Legionnaires’ Disease is an illness contracted by inhaling droplets of water which are contaminated by Legionella bacteria. The bacteria are found in most water systems, but the risk is in places where the bacteria can multiply and increase to dangerous levels. The bacteria can survive low temperatures and thrive in stagnant waters with temperatures between 20 and 45 degrees celcius. The bacteria are killed in temperatures above 60 degrees celcius.

What do I have to do as landlord/agent?

Landlords are responsible for ensuring that the risk of exposure to Legionella in their property is properly controlled. A landlord has the duty to assess the risk from exposure to the tenant and, where a risk is identified, take appropriate steps to remove or minimise the risk. This risk assessment can be carried out by a third party, but the ultimate responsibility is the landlord’s.

The Health and Safety Executive (HSE) can impose fines or imprisonment if you do not comply with these requirements. This can happen even if there is an exposure to risk without someone actually being affected.

How do I carry out a Legionella risk assessment?

When carrying out the risk assessment you should be asking the following questions in relation to each water system and associated equipment:

1. Is the water stored or re-circulated?
2. Is the water temperature in some or all parts of the system between 20-45 degrees?
3. Is there rust, sludge, scale or organic matter in the system?
4. Are there any conditions present which would encourage the bacteria to multiply, e.g stagnant water in any areas of the water system? This could include redundant pipework, or any outlets that are not frequently used.
5. Is it possible for water droplets to be produced and, if so, can they be dispersed over a wide area?

Individuals with weaker immune systems are most at risk of contracting Legionnaire’s Disease so you will need to think about the age and any pre-existing illnesses of the person that will be living in the property when you carry out the assessment.

Even if there is no storage of hot or cold water in the system you still need to carry out a risk assessment. There may be other factors in the system which increase the risk, including shower heads and long runs of pipework.

You should keep a written record of the risk assessment which should include:

1. The name of the person carrying out the risk assessment;
2. The review date;
3. A list of the systems you are assessing;
4. Any potential sources of risk;
5. Any controls in place to control risks;
6. Your monitoring, inspection and maintenance procedures; and
7. Records of the monitoring results, inspections and checks you have carried out.

Who can undertake the risk assessment for Legionella?

The risk assessment needs to be carried out by a competent person. The HSE defines a competent person as ‘someone with the necessary skills, knowledge and experience’. This does not need to be a contractor. An agent can carry out the risk assessment, but they need to have an understanding of how to inspect the premises for any risks as set out above. This can be provided through proper training and by ensuring that each agent is following the guidelines that have been set out by the HSE.

What do I do when a risk is identified?

Where you have identified a risk you should take steps to deal with it, such as flushing out the system, avoiding debris getting into the system, or maintaining the correct water temperature. You should also advise the tenant of any risks and provide them with instructions on how to avoid them (e.g. flushing out the system after periods where the system has not been used). Humidifiers, pools and spas are potentially high risk so if any of these are present in the property you should ensure that the tenant is provided with the manufacturer’s instructions and that the items are serviced regularly.

You should ensure that the risk assessment is reviewed regularly and carry out a new assessment whenever any element of it changes, e.g. vulnerable tenants move in or a system is updated/altered.

There are a few things that you can do to prevent or control any risks, including:

1. Keeping water in the boiler at a minimum of 60 degrees;
2. Dismantling, descaling and cleaning any shower heads regularly and between lets;
3. Regularly flush through any water units that are not regularly used; and
4. Inspect the cold water tank regularly and ensure that it is insulated with a closed lid.

Filed under: England & Wales,

Can squatters acquire title to land post s144 LASPOA?

R (Best) v Chief Land Registrar [2014] EWHC 1370 (Admin)

The facts

In 2002 Mr Best took possession of a property that he knew to be empty. He spent the next 10 years working on the property: making it watertight, putting down floorboards, painting, plastering etc. He then took up occupation of the property in 2012.

Soon after taking up residence, Mr Best made an application to the Land Registry to have the property register amended to show him as legal owner. His application was made in accordance with the Land Registration Act 2002, which allows a person who has been in adverse possession of registered land for 10 years or more to make such an application.

The usual process on receipt of a valid application involves the land registry sending out details of the application to the registered owner and giving him the chance to object. However, Mr Best did not even get this far as the Chief Land Registrar refused to accept Mr Best’s application as valid on the basis that Mr Best was not entitled to rely on his 10 years occupation as during this time he was committing a criminal offence and should not be allowed to rely on this period (following Section 144 Legal Aid, Sentencing and Punishment of Offenders Act which came into effect on 01 September 2012.

On receiving notice of the Land Registry’s rejection of him application, Mr Best sought judicial review of the decision arguing the decision was wrong on three grounds:
1. It was not parliament’s intention that Section 144 of the LASPOA should alter the position set out in the LRA 2002 or, if it was, the intention was that it should only alter the position if the legal owner would also have been committing a criminal offence if he had carried out the same act. Here clearly not.
2. He was not committing a criminal offence under Section 144 as this only criminalises “living in” residential premises and not other physical acts which are sufficient to rely on in making a claim for adverse possession. Mr Best asserted that he had begun living in the property until 2012, which was after the 10 year period. During the 10 years though he had undertaken acts such as securing doors and windows, which is a sufficient basis for an application for registration.
3. The Land Registry’s interpretation of Section 144 was in breach of Mr Best’s rights under Article 8 of the European Convention of Human Rights and/or Article 1 of Protocol I to the ECHR (the right to respect for one’s private and family life and the right to peaceful enjoyment of property).

The Court Decision

On considering the points raised by Mr Best, the court ruled that, although as a matter of public policy a person should not be allowed to derive benefit from criminal acts, that principle must be weighed up against other public policy interests. In this case, the question of whether a trespasser should be allowed to rely on his wrongdoing needed to considered against the conflicting interest that title should not be left uncertain when there had been a long period of possession to which no dispute had been raised. The Court decided that parliament would not have enacted Section 144 in the way that it did with the intention that the Act should amend the rules already in place regarding adverse possession. If this had been the intention then parliament would have made express provisions in LASPOA dealing with this.

The Court agreed that Mr Best had performed acts of adverse possession that would suffice for an application, such as possession through acts of repair, maintenance and exclusion.

The Court, however, found that the Land Registry’s decision was not incompatible with the ECHR.

The court granted permission to appeal so watch this space. Meanwhile read the whole case here.

Filed under: England & Wales

Section 8 case – ( but don’t try this at home)

Readers might be interested in another example of the Court of Appeal upholding a notice despite the tenants attempts to claim it was defective – this time a section 8 notice.

The Queen on the Application of Masih v Yousaf [ 2014] EWCA Civ 234

The facts.
Mr Yousaf let a property out to Miss Masih on an AST. When Miss Masih fell into rent arrears Mr Yousaf served a section 8 notice, followed by proceedings for possession. At the hearing possession was granted on the mandatory ground 8. So far so normal. The tenant applied to the court to set aside the possession order on the grounds that the section 8 notice was not in proper form. This matter then ended up in the Court of Appeal.

The appeal
The tenant argued that the notice seeking possession had not complied with section 8.2 of the Housing Act 1988 in that it did not properly specify the ground that was being relied on.

The notice served on Miss Masih :
“Your landlord intends to seek possession on ground(s) 8 in schedule 2 to the Housing Act 1988 as amended by the Housing Act 1996, which read(s): that the tenant owed at least two months’ rent both when the landlord served notice that he wanted possession and still owes two months’ rent at the date of the court hearing”

Ground 8 in schedule 2 of the Housing Act 1988 in fact reads:
“Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing:
a) if rent is payable weekly, or fortnightly, at least eight weeks’ rent is unpaid;
b) if rent is payable monthly, at least two month’s rent is unpaid;
c) if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and
d) if rent is payable yearly, at least three months’ rent is more than three months in arrears;
And for the purpose of this ground “rent” means rent lawfully due from the tenant”.

The Court of Appeal, in the earlier case of Mountain v Hastings 35 HLR 7 had already held that the grounds in schedule 2 may be validly specified in the notice in words that differ from the statutory language provided that the words are “adequate to achieve the legislative purpose of giving the tenant the information which the provision requires to be given in the notice to enable the tenant to consider what he should do and do that which is in her power to put things right and best protect her against the loss of her home”.

However in Mountain, the notice was defective as it had not included the requirement that the rent was unpaid at both the date of service and the date of the hearing and that “rent” meant rent lawfully due.
The tenant in this case tried to rely on Mountain on the basis that the notice was absent the phrase that “rent means rent lawfully due”.

Did it matter that the notice did not mention “rent lawfully due”? Lord Justice Floyd said [para 25]:
“In contrast to a statement that rent is unpaid, a statement in a section 8 notice that the rent was owed in my judgment is sufficient notice to enable a recipient to appreciate that it would be an answer to the claim to show that the rent was not lawfully due, thus the recipient of a notice using the word “owe” is aware that he or she must find some basis for showing that the rent is not owed”.

Floyd LJ was unable to find a case where rent might be owed but not lawfully due. He ended his judgment ( with which the other two C of A judges agreed) by quoting from the judgment in Mountain v Hastings:
“ ‘It is difficult to think of any good reason why a person given the task of settling a form of notice should choose to use words differently from those in which the Crown has stated in the schedule.’
That is and remains sound advice”

Comment

A section 8 notice which does not replicate the statutory wording is not necessarily defective, if the tenant can ascertain from it what the notice requires, and what s/he needs to do to maximise chance of keeping her home. In this case it was that rent was owed, and that the tenant needed to pay the arrears ( or counterclaim) in order for the rent not to be owing.

This decision seems to be very much from the Spencer v Taylor stable of Court of Appeal decisions and arguably represents a growing reluctance to find notices invalid on technicalities or hair splitting meanings of words.
That said, we would still recommend using the statutory wording. Why make things complicated when they need not be. Use the statutory wording and keep your possession proceedings to a five minute first instance hearing. Or better still hope that the tenant clears the arrears.

*How did it end in the Court of Appeal ?
After the original possession order was granted the tenant had made an application to set aside the possession order and stay the bailiff’s warrant. At the application hearing the judge concluded that he did not have the power to set aside a possession order, but granted possession to appeal.
The Court of Appeal also considered the point as to whether the judge hearing the set-aside application had been right not to set aside a possession order made in the presence of both parties. Floyd LJ cited a stream of authorities on the subject. Where the defendant did not attend the hearing at which possession was made, then possibly ( see London Borough of Hackney v Findlay [2011]EWCA ), but otherwise if “all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done in the context of an appeal”. See Collier v Williams [2006] EWCA Civ 20.

Filed under: England & Wales

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