Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

More consultation over the Private Rental Sector

Due to the ever increasing demand for rental properties the Government have decided that a consultation on this area is needed. The discussion titled ‘Review of property conditions in the private rented sector’ is in its initial stages so no changes are imminent; but certain topics have been raised with a view to helping the system perform better and raise the standard of the housing industry to make sure tenants are protected and are able to live in a safe environment.

The intention of the consultation is to protect tenants from rogue landlords and agents but to try to balance this by not adversely affecting the good landlords/agents. The aim is to avoid imposing unnecessary legislation which could create more hassle, decrease much needed investment in private rented housing and result in further costs which will eventually be passed on to the tenant in the form of increased rent etc.

There are a number of topics that have been proposed as talking points for which they are inviting comments and suggestions. These include:

• Rights and responsibilities of landlords and tenants – How can it be made clearer to both sides what is required of them and what can be done if the other side has breached their obligations?
• Retaliatory evictions – How to prevent landlords from simply serving notice to evict a tenant that has notified them of necessary repairs to the property?
• Illegal evictions – Should the penalties against landlords convicted of illegal evictions be stricter?
• Safety conditions – Should smoke and carbon monoxide alarms be mandatory in all properties?
• Licensing of rented housing – Should there be mandatory licensing for all properties? Should there be voluntary accreditation schemes for Landlords so that the good landlords can be found more easily?
• Housing Health and Safety Rating System – Is more information required to make the system clearer for all parties?

This is a non-exhaustive list and so if you have any ideas of how to improve the housing market the details of where to send your proposals are detailed below and any suggestions made should be considered and discussed.

The closing date for responses is 28 March 2014 and they can be sent to PRSReview@communities.gsi.gov.uk

We will be looking to keep an eye on this and will update the blog when there are any further developments.

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

HMO mandatory licensing- calculating storeys

London Borough of Islington v The Unite Group Plc [2013] EWHC 508 (Admin)

Thanks again to David Smith and our friends at Nearly Legal for drawing this recent case to our attention. NL has summarised the case comprehensively here so the below is a quick overview.

The High Court in this case has clarified the rules on calculating the number of storeys of a property in a block of flats. This is important in order to determine whether a particular property falls into the mandatory licensing category.
The building in the case in question contained a number of flats over more than 3 storeys. Each flat comprised of one storey with up to six student occupiers in each flat – what you might describe as a standard HMO. The ground floor of the building was used as business premises.

The Court was asked to determine whether these flats were HMOs that required licensing. The statutory requirements are that if an HMO or any part of it comprises three storeys or more and it is occupied by five or more persons and those persons form two or more single households, then the HMO must be licensed.

The high court found that “it is the HMO that must comprise the three storeys and not the building in which an HMO happens to be found”.

So, where living accommodation is in a part of a building above or below business premises you must take into account each storey comprising the business premises. Where a series of self-contained flats sit above commercial premises, you count the commercial premises in your calculation and the number of storeys in the flat itself, not the building.

The case should make it simpler to calculate whether an HMO falls into the mandatory licensing category and should release many landlords from the requirement to license self-contained single storey flats that sit in a block. However, since failure to have a licence when required has such severe consequences including prosecution, fine and rent repayment orders, if in doubt do seek guidance from the local authority (armed with a print out of the high court ruling to wave at them if necessary).

This ruling contrasts with the case of R v Roderick John Williams 2008 but as a High Court decision will take precedence. In Mr Williams’ case, he was successfully prosecuted for having an unlicensed HMO. This HMO actually covered two storeys but it sat on top of a basement flat and the court decided that under the Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2006 [link] the two storey flat had to be calculated as having three storeys as it sat over a one storey flat.

Filed under: England & Wales, , , ,

Landlords’ safety obligations

Thanks to our friends at Nearly Legal we have been alerted to the recent case of Gillian Drysdale v Joanne Hedges (2012) QBD 27/07/2012. A tenant slipped off some steep steps while moving her belongings in at the beginning of the tenancy and injured her back. The steps were painted with gloss paint which became slippery while wet, and there was a dangerous drop unprotected by railings. The tenant claimed against the landlord under section 2 of the Occupiers Liability Act 1957 (OLA), section 4 of the Defective Premises Act 1972 (DPA), as well as under his common law duties. You can read a full summary here.
In short it was decided:
1. Section 2 OLA did not apply at all – a landlord’s duty is defined in section 4 of the DPA and it is this Act which applies.
2. Section 4 DPA provides that where there is an express or implied right of access for the Landlord to carry out repairs, there is a general duty of care to occupiers (and their possessions) to take reasonable care to ensure safety from damage or injury as a result of any defect which the landlord is liable to repair, and which they are – or should be- aware of. (Note that this duty applies without actual notification if the landlord should reasonably have been aware). The court confirmed that these provisions did not translate into a duty to make safe.
3. Common law duty of care: the court confirmed the principle that there was no requirement to make safe a property let in a dangerous condition. ( In this particular case there was no common law requirement to make the drop safe, but there was a duty of care not to create an unnecessary risk of injury).
The claim was dismissed.
So what does this mean for Landlords? It does not mean that they can leave their tenanted properties in a dangerous condition. It means that the court confirmed the position with regard to the claimant’s claim and the landlord’s liability under the DPA, OLA and his common law duty of care. There are however safety standards set out in other legislation and regulations.
Landlords will be aware of the provisions of the Housing Act 2004. The Housing Health and Safety Rating System ( HHSRS) introduced by part one of the Act imposes a set of safety obligations on Landlords, including obligations in relation to slips, trips and falls. Under the HHSRS a local authority, by way of an environmental health officer, can inspect a property for hazards and require that remedial action be taken to diminish a risk. (NB, HHSRS applies to all residential properties, not just rental properties).
Houses in Multiple Occupation ( HMOs) are subject to enhanced safety obligations . See our blog here
Further all landlords will be aware of the Gas safety ( installation and use) Regulations 1998 which we have blogged on here.
So although in this particular case the tenant was unable to claim against the landlord under the heads of claim pleaded, there are nevertheless requirements on landlords to keep their properties safe. We often get queries on our Helpline as to safety in rental properties. Landlords and agents should bear in mind not only their repairing obligations but also the requirements of HHSRS and the raft of other legislation designed to keep occupiers safe.

Filed under: England & Wales, , , , ,

Fire Safety revisited

We have had a few queries regarding the Fire Safety (Protection of Tenants) Bill on which we have previously blogged, and so here is our update: the Bill failed to complete its passage through Parliament before the end of the session. This means the Bill will make no further progress and will not become law.

To recap, this was “a bill to require landlords to provide smoke alarms in rented accommodation; and connected purposes”. All landlords were to be required to install a mains operated battery backed smoke alarm before the tenancy agreement is signed.

The tenant would have been required to test the smoke alarm at least once a month and notify the landlord of any defects, who would then be required to carry out the repairs. There was to be a criminal penalty of up to 2 years in prison and/or a fine of up to £5000.00.

Filed under: England & Wales, , , ,

Selective Licensing

Selective Licensing

Selective licensing is provided for by Part 3 of the Housing Act 2004 and is related to the licensing of HMOs. Unlike, normal HMO licensing however, it allows for the licensing of any rented property in a designated area irrespective of its HMO status. To undertake selective licensing the individual local authority must make an application for permission to the government sowing that the area is one of low housing demand or that the area is one suffering from anti-social behaviour.

Local authorities are supposed to publicise their application process and the making of a selective licensing designation but it seems that these often pass people by.

The following Local Housing Authorities are known to have gained permission for selective licensing in some or all of their areas of responsibility although they may not yet all have schemes in operation:

  • Salford
  • Manchester
  • Gateshead
  • Middlesbrough
  • Sedgefield
  • Blackburn with Darwen
  • Hartlepool
  • Burnley
  • Easington
  • Bolton
  • Newham

It should be made clear that the failure to obtain a licence for a property that is subject to selective licensing carries the same criminal and civil penalties and restrictions as would be imposed in relation to an HMO that has no licence and, indeed, a landlord in Salford has already been prosecuted and fined due to a failure to have a licence required under a selective scheme. Notably, however, the fine was relatively small at £2,500.

It is usually best to keep an eye on the LACORS website as they tend to be aware of the applications of local authorities for selective licensing consent. This is definitely something that local authorities in England and Wales are being encouraged to carry out and will probably continue to grow during the course of the year.

Filed under: England & Wales, , ,

LACORS on Cancellation of Contracts

On my weekly NFOPP email I was directed to this article on their website which mentions LACORS guidance on the Cancellation of Contracts Made in a Consumer’s Home or Place of Work Etc Regulations 2008.
Unsurprisingly LACORS takes the view that the Regulations apply to Estate (and presumably also Lettings) Agents.
What is more interesting is one of the scenarios in the guidance which we have reproduced here:

2.3.3 – During an estate agent’s visit to the consumer’s home, if the consumer has been able to review the information required by the Estate Agents Act 1979 and the Estate Agents ( Provision of Information) Regulations 1991 and then agrees to the quotation provided by the estate agent and says “Yes” to contracting with the estate agent for his services. The estate agent says “I’ll go back to the office and finalise the contract and send it through” – the Regulations are likely to apply as the contract is made following the offer made by the consumer. The estate agent needs to be careful to give the written notice of the right to cancel at the point the offer is made by the consumer.

This is an interesting view. LACORS is essentially saying that if a verbal agreement is made for business to commence then the notice must be handed over at that stage and cannot wait until the written contract is signed.
This is, of course, quite logical as a verbal agreement concluded on agreed terms is enforceable immediately and does not need to be reduced to writing. However, agents should take care and consider at what stage they are at with a landlord if they are talking to him face-to-face in his own home or place of work. If they are taking away from the meeting that they can immediately start marketing a property and can get th terms signed along the way then they should have handed over a cancellation notice and could potentially be liable to prosecution.

Filed under: Uncategorized, , ,

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