Do you complete court forms for your landlords? You could be in contempt of court

For as long as I can remember, letting agents have undertaken issuing notices such as Section 21 and Section 8s and then continued to complete the court application form for their landlords.

Personally I have also shied away from the form filling, this is for 2 reasons

• 1    I don’t like form filling with the added headache of 3 lots of papers
• 2-      I knew legally I couldn’t do that work

A recent High Court ruling in Baxter v Doble & Anor highlights the need for caution among agents when choosing to undertake eviction work in the course of their daily property management work.

When we think of legal work, such as litigation, and the roles of solicitors we think of attending court and standing up in front of a judge, we don’t necessarily think that simply completed some forms could be a detrimental act.

So, lets break this down,

What is Litigation

Litigation is the process of an individual or a business taking legal action against one or more parties to resolve a dispute, Litigation is a reserved activity.

Various principles were outlined to help judges decide what does and does not amount to the conduct of litigation.

The court made its decision in accordance with those principles –  it was held that some of the activities carried out were consisted of the conduct of litigation. 

The list of such activities a include all of the following:

• Filing the claim form and particulars of claim.
• 
  
• Serving the reply and defence to counterclaim on the other party.
• 
  
• Payment of the court fee of £355 by cheque from the respondent’s account, having been put in funds in advance by the claimant.
• 
  
• Giving of instructions to an advocate.
• Drafting of witness statements.
• 
  
• Drafting of an application notice.
• 
  
• Drafting of a draft order for a strike-out application.
• 
  
• Drafting of the reply and defence to counterclaim.
• 
  
• Drafting of the case management summary for the CMC.

It has been held in other cases that serving a claim form and particulars of claim do amounted to the conduct of litigation.

Who can litigate

A person who is authorised ( eg: a registered and regulated solicitor)

So, to be clear serving section 8 or section 21 is NOT deemed to be conducting litigation, but if the agent then goes on to help the landlord complete the N5b or any other type of possession claim form including PCoL or completes it on landlords behalf, they will be, Under the Legal Services Act 2007, committing an offence to carry out a reserved activity without being an authorised person.

At paragraph 4, Schedule 2 to the 2007 Act ‘conduct of litigation’ is defined as

“Conduct of litigation

4 (1)The “conduct of litigation” means—

(a) the issuing of proceedings before any court in England and Wales,

(b) the commencement, prosecution and defence of such proceedings, and

(c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).

Agents who chose to complete these claim forms leave themselves and their landlord open to having the possession claim struck out and at worse be found in contempt of court which carries a sentence of 2 years in prison.

It is not worth trying to complete these forms and agents are encouraged to form partnerships with local solicitors who will take on this work once the section 8 or section 21 has expired

Baxter v Doble & Anor (2023) https://www.bailii.org/ew/cases/EWHC/KB/2023/486.html

What is a tenancy?

When working in, or researching the rental sector we come across the word ‘tenancy’ all the time.

We all make the similar assumption that tenancy means the type of rights and/protection someone has in a property.

More often than not, we associate tenancy with Assured shorthold tenancies (AST)  in particular.

 

However, the fun fact here it that ALL types of let are in fact tenancies, it is then down to the circumstances surrounding the let that determines what level of protection from eviction and rights the occupant has.

 

The science bit:

Let’s start with the origin of the word tenure.

In Middle English it’s called tenure.

In Latin  *tenitura, from *tenitus,  tentus (from teneō) + -ura.

 

All of these meaning the same thing:-

the conditions under which land or buildings are held or occupied

 

So how many types of tenure are there?

·       Owner

·       Leasehold

·       Secure 

·       Protected

·       Assured

·       Assured shorthold

·       Basic occupier

·       Excluded occupier

 

Each of these tenancies rely on the law and case law to establish how they will be created.

 

Owner is simple to explain, the interest in land is owned outright by the person.

They have the title to the property, they pay the taxes and rates

 

Leaseholders are in fact tenants, they may only ever own the lease and not the building so live in the property as tenant to the freeholder/owner. The lease is for a set period of time normally 99 or 125 years. Unless the leaseholder makes arrangements to extend it, once the lease ends, ownership of the property returns to the freeholder.

 

Secure and protected provide the occupants the highest level of security without owning any part of the property or its lease.

Defunded by Part 4 of the Housing Act 1985

Secure and protected tenancies are normally issued by local authority and are much less common now

Eviction generally required the tenant to have breached the contract 

 

Assured / Assured shorthold

As defined by   s.1(1) Housing Act 1988

An assured tenancy is defined as a tenancy of a dwelling-house let as a separate dwelling to an individual, who is a single (sole) or joint tenant, where the tenant or at least one of the joint tenants occupies the house as their only or principal home

Assured and ASTs are in principle the same, except an AST allows the landlord to issue a no fault notice, known as s21

 

But to evict an assured tenant you will normally require them to ah w breached the contract 

 

Basic occupier /Excluded occupier

Most tenants are protected by either the:

·       Rent Act 1977 (regulated tenants)

·       Housing Act 1985 (secure tenants)

·       Housing Act 1988 (assured and assured shorthold tenants)

 

If a tenant does not come within the protection of one of these Acts or another statute giving security of tenure, they are either an occupier with basic protection or an excluded occupier.

Under the Protection from Eviction Act 1977 occupiers with basic protection cannot be evicted without a court order. A landlord must follow the correct procedure to evict an occupier with basic protection.

 

Excluded occupiers however do not have protection from eviction and are not subject to Protection from eviction act 1977

The most common example of his are

 

·       people sharing accommodation with a resident landlord

·       people renting holiday lets

 

So when embarking on renting a property, it is worth doing some research to ascertain what type of tenancy you will be embarking in and what legal requirements you have as a landlord but also what rights and protections your tenant may also have.

 

It’s my property, I don’t need a court order

With mortgage rates, the cost of living and the energy crisis having a huge detrimental effect on both landlords and tenants in the private rented sector, many landlords are finding themselves directly effected either by lost of equity, the property no longer making ends meet or change in circumstances which are not of a direct effect of any tenant action.

In these situations many landlords are in desperate need to move back into their rental properties as their own home, leaving tenants facing the prospect of eviction through no fault of their own.

Surprisingly to me, there is a common presumption among inexperienced landlords on Social media platforms that they do not need to serve their tenants with formal notice in order to move back into their properties.

It is unclear where this misconception has come from, but it is a worryingly increasing trend, so to clarify the situation to those who are unsure please read on.

When you rent your property to a tenant on an assured shorthold tenancy agreement you are in the eyes of the law transferring possession of your property to the tenant.

This provides the tenant with 'Exclusive possession' this means the tenants has every legal right to exclude anyone from their home including the landlord and their agents.

There are only two legal ways in which a landlord can regain possession of their property.

1. By the tenant serving Notice to Quit or signing a Deed of surrender and vacating the property voluntarily 
2. By the landlord serving notice seeking possession, proceeding through the court system and having a bailiff exercise an eviction warrant  

If the rental property was previously the landlords home directly before the tenant moved in then the landlord can serve a Section 8 notice using ground 1  which states Landlord wants property to be own home or the property was previously their own home, this is a 2 months notice 

However, The landlord can't use this ground to get the property back in order to sell it, and most importantly, before the tenant moved into the property, the landlord would need to serve on the tenant a notice ( a letter is fine or clause in the AST) stating that this situation may arise, without this pre-ground 1 notice ground 1 cannot be used

If the tenant has not breached their tenancy in anyway and the landlord simply wants their property back to move into, then the formal Notice seeking possession will need to be served, this will be a Section 21 notice on form 6a giving 2months notice

If the tenant is in a fixed term AST, you can’t issue the S21 to end the tenancy sooner than it’s natural fixed term end.

The other important thing to remember is that any notice seeking possession that a landlord issues to a tenant, either Section 21 or Section 8 is NOT an eviction notice and the tenant does not have to leave when it expires, the notice is simply that, a note to the tenant advising them of the date after which the landlord can go to court.

So if you wish to move back into your home for any reason the tenant is still legally entitled to full notice and the full court process.

 

 

A New Year means New Legislation for Landlords

On 23^rd January 2023 the Fire Safety (England) Regulations 2022 will come into force.

 

These new regulations will predominantly apply to high-rise buildings, specifically those over 11 metres and 18 metres or at least over seven storeys with communal areas. 

 

However, section 9 and 10 does relate to all buildings with two or more domestic premises and communal areas, which would lead us to assume that in addition to buildings with self-contained flats, these regulations will also apply to rooms let on individual tenancies in HMOs.

 

It is also assumed if there has been a conversion and the structure comprises two maisonettes with front doors on the street and no communal area, these regulations will not apply.

 

So what do you need to do if these regulations apply to your type of property

 

Section 9- Fire safety instructions to residents 

 

A responsible person must display fire safety instructions prominently in communal areas. The instructions must include the following:

 

·       how to evacuate a building,

how to report a fire to fire and rescue, and

·       any other instruction that tells residents what to do when a fire has occurred.

 

In addition, the responsible person must provide a copy of the instructions:

 

·       to all residents within the building within 12 months of the start of the regulations;

·       to a new resident as soon as reasonably practicable after they move in; and

·       to all residents every 12 months

 

The regulations also state that these instructions will be provided to the occupant when there is a change and annually.

 

Section 10- Fire doors

 

Requires the responsible person to provide information about the fire doors in the building, whether or not they are within the individual dwelling or the communal parts. That information must include that:

 

·       all fire doors are to be kept closed when not in use,

·       residents or their guests should not tamper with any self-closing devices, and

·       residents should immediately report any fault or damages to the fire doors to the responsible person.

 

This information must be given to all existing occupiers within 12 months of when the regulations come into force (23^rdJanuary 2023) and to all new occupiers as soon as reasonably practicable after that resident moves in. 

 

The information must be given annually as a refresher.

 

The full Act can be viewed Here: 

https://www.legislation.gov.uk/uksi/2022/547/contents/made

 

 

 

 

  

The Snow On Your Roof can tell you a lot About Your Home

With the recent snow still sat on our roofs looking like a picture postcard we can be forgiven for wishing for warmer weather.

But the snow on your roof can tell you aloe but your property and help you make smart decisions for the future.

Whether the snow on your roof is a perfect blanket, or it has splotches of melting spots, that says something about the insulation efficiency of your home.

A roof that is evenly snow covered means that home’s insulation is doing its job.  Think about it:  during the winter months we put a lot of effort into heating our homes.  However, heat naturally rises.  So, if your home has lots of leaky spots and not enough attic insulation, that warm air is going straight to the attic and out to the roof, melting snow.

If you start to notice big spaces on your roof that aren’t snow covered, you have a problem.  Those are areas where the insulation is not working properly.  Not only are you losing energy and money, but it could have a direct impact on your tenants who pay the bills.

But it’s not all doom and gloom

An even covering of snow on the roof means that the insulation inside is working well.  It also means that your home is receiving an extra layer of insulation against cold outside temperatures.  

Paul Fisette, wood technologist, explains,”…on average snow has an R-value of 1 per inch — about the same as wood. Twelve inches of snow have roughly the same insulating value as a 2×4 wall filled with fiberglass insulation.”

So get your tenants to take a photo of your snow covered roofs and see if your insulation needs topping up

When is an AST NOT an AST…. When Foxtons says so..

The tenant fee ban act has been in place since 1st June 2019, but is it shocking to see how many Property professionals, also known as letting agents, are either not aware of its existence, or believe they can charge a fee as long as they call it something else.

As most of you know, I am fascinated by the total disregard or ignorance of some agents to the existence of the Tenant Fee ban Act (TFBact).

I spend many a dark night reading through the decisions made by the First Tier Tribunal regarding payments taken by agents and landlords alike which breach the TFBact rules.

Mostly, the breaches are lack of knowledge / education.

I have looked at the last 14 cases that were heard by the First Tier Tribunal relating too Tenant Fees Act - Financial Penalties.

Shockingly of these 14 cases only 3 were brought against landlords who were self-managing, the rest were all against letting agents, a number of which where high street National agents who, in my opinion should have known better.

The most common compliant raised by tenants was agents not refunding the Holding deposit, in all of these cases the Tribunal found in favor if the tenant and ordered the agent to refund the tenant in full

This particular case caught my eye simply for its open attempt to sideswipe the TFBact by a National high street agent who lets face it reputation precedes it

The background

3 tenants entered into a joint tenancy agreement for a property in London for a fixed term of 8weeks.

Foxtons charged each tenant a fixed fee of £250 to cover a variety of works depending on the individual circumstances of each tenancy, including conducting viewings, negotiating the tenancy, verifying references, and drawing up contracts and as specified in the 3 Terms and Conditions attached to the Application for Short Let.

Tribunal Decision

The tribunal found that as the tenants were to live in the property as their main or principle home this met the requirements of the Housing Act 1988 Section 1 (b) which requires the property to be the persons main home and that section 19A of the Housing Act 1996 was met as no minimum term in required to establish an Assured shorthold tenancy.

The tribunal demanded that Foxtons return the full £750 to the 3 tenants as this payment breached the TFBact and was a prohibited payment

Let’s talk mediation…

What is mediation and why does it matter?

Mediation is a form of dispute resolution, many people think it is a mamby-pamby approach with a tree hugging mediator asking you to "get in touch with your feelings" and "see things from the other persons perspective"

Mediation isn't like that at all... think of a mediator as a guidance referee, someone who can help two people reach an outcome they are both happy with, while keeping them focused on moving forward.

Mediation gives you more options than court, allows you to control the outcome and helps you resolve many issues

Landlords and tenants are seeing the benefit of mediation as apposed to going to court.

Mediation can help with Rent arrears, access issues, needing vacant possession and much more.

Mediation agreements are legally binding too, so you can rest assured the outcome you agree is sealed in contract between you both.

So don't think of mediation as a waste of time and money, see it as a cheaper option to getting a mutually beneficial outcome.