A new case on section 21 notices

We have recently had a fairly sensible case on section 21 notices, where the Court of Appeal has squashed an attempt by a tenant to wriggle out of getting evicted by claiming that the notice was defective.

This was a situation where the fixed term of the tenancy had expired and the landlord was having to rely on section 21(4) of the Housing Act 1988. The notice used the words "Possession is required of the premises which you hold as tenant(s) at the end of the period of your tenancy which will end after expiry of two months from the service upon you of this notice.". Section 21(4) contains the following wording:

"that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section".

At first instance an order for possession was made, but the tenant then sought legal advice and decided to run the argument that the wording in the notice did not comply with the notice in the statute, claiming that the possession order should therefore be set aside. The argument went that the phrase "at the end of the tenancy" meant "on the last day" so that the notice did not satisfy section 21.

Happily however (for the landlord) the Court of Appeal did not agree and found that the notice did comply sufficiently. The court held that the judge had been entitled to conclude that the notice complied with section 21(4)(a) since it was clear that, applying a normal use of language, the phrase "at the end of a tenancy" in a notice under section 21 meant "after the end of the tenancy". It did not mean at the split second after the tenancy came to an end, but any time thereafter.

This follows other Court of Appeal decisions in the past on notices, where so long as the sense of the notice is clear, the court have not allowed the notice to be defeated by minor technical quibbles. For those who are interested in such things, the name of the case is Nottingham Hill Housing Trust v. Roomus. I have not been able to find a report of this online so am unable to give a link.

New Law Commission consultation paper on housing dispute resolution

The Law Commission have recently published a consultation paper on the resolution of housing disputes, giving their proposals for reform, with a deadline for responses of 11 July. For more information see this page.

They have also set up an online forum, hosted by the University of Kent, for discussions on their proposals and on the topic of housing dispute resolution generally, which you can see here.

I have stuck my neck out and put up two posts. If you hold strong views on the resolution of housing disputes go and have a look, and put up your own post. This is your opportunity to put your ideas to those who may be able to do something about it. Don't waste it.

Musings on the tenancy deposit scheme

I have heard a rumour that the proposed tenancy deposit scheme (being brought in pursuant to the Housing Act 2004) may not be introduced in October 2006 as has been widely anticipated, but may be delayed until next year, probably next April. This may not be true of course, but many landlords will feel very relieved if there is a delay, beset as they are with the new HMO and other new regulations which came into force recently.

I do hope though that when the new scheme does come into force it will be light on paperwork. I can remember when the pilot scheme was being run by the Independent Housing Ombudsman, how all landlords I spoke to were horrifed by the massive (in their opinion) amount of paperwork involved - and remember that many landlords judge a tenancy agreement not by its contents but but by how short it is! In fact I suspect that the paperwork was a major contributing factor to the low takeup of the pilot scheme.

I was speaking to one of my landlord clients only the other day and she was saying how concerned they are about the new scheme and whether it will be worth their while to take a damage deposit at all, when they were going to have to deal with (she told me) so much extra administration. I suspect that many landlords will either assume that the scheme operators will be anti landlord or be put off by the paperwork, and will stop taking a deposit at all and just increase the rent overall to compensate them for losses which would normally be covered by a damage deposit.

It will be unfortunate if this happens, as an increased rent is not refundable to the tenant at the end of the term in the same way that a deposit is, so good and bad tenants are punished alike. And although technically a tenant can challenge the rent in the first six weeks by referring it to the Rent Assessment Panel, in practice very few tenants do this. It is possible therefore that a scheme brought in to benefit tenants may just result in higher rents. I hope not but we shall see.

HMO tenants have duties too

As I have mentioned before in this blog, there are new management regulations now in force for landlords of HMO properties. These provide for the landlord (or his manager) to provide contact details to occupiers, ensure that the property is safe in various respects (fire safety, handrails and banisters, bars on windows with low cills etc), maintain the property in a good condition, get proper certificates for gas and electrical installations, deal with rubbish and bins properly etc etc. All important management things that will ensure that HMOs are better and safer environments in which to live.

But what if the wretched occupiers thwart the landlords efforts? Damage the property installations, refuse to deal with waste responsibly, and keep the place in a mess? Well, landlords will be pleased to note that tenants now also have obligations under the new regulations, obligations not to impede or obstruct the landlord or his manager in the execution of his duty.

So arguably, if the tenant continually knocks over all the bins and rips out the bars in the windows, he too can be prosecuted and face a fine on conviction. Its not all bad news for landlords.

Two steps back?

One of the penalties for failing to get a license for your HMO will be that you will not be able to use the section 21 procedure to evict your tenant (this is the no fault/shorthold possession ground from section 21 of the Housing Act 1988, generally enforced via the optimistically named 'accelerated' possession procedure). Likewise, when the tenancy deposit scheme comes into force later this year, landlords who take deposits while not part of an authorized scheme will also be unable to use the section 21 procedure.

The Housing Act 2004 states no section 21 notice may be given in relation to a shorthold tenancy of a part of an unlicensed HMO so long as it remains such an HMO (s75) and if a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy (s215).

However they cannot physically stop a landlord from drafting up a document purporting to be a section 21 notice and serving it on the tenant. What the statute actually means is that the notices will not be effective. However how will the court know, if the landlord then brings proceedings for possession?

The answer is almost certainly that the court forms will be changed and the landlord will be required to certify that (with regard to licensing) either the property is not subject to licensing or that one has been obtained. So far as tenancy deposit schemes are concerned, again, the landlord will either have to show that no deposit has been taken or give proof of compliance with the scheme requirements.

However there will also be ways that defendants can check and verify the landlords assertions. Every local authority is required to keep a register of licensees which must be open to inspection from the public, and to provide certified copies of entries (s232). Likewise no doubt the authorized tenancy deposit scheme providers will also be required to keep a register of landlords and deposits, by the regulations due to be published later this year.

Although I understand and indeed to a large extend applaud the aims of the licensing and tenancy deposit schemes, which are there to improve standards and protect tenants deposits, I can see that this will all add an extra layer of complexity to the bringing of proceedings for possession under the section 21 procedure, already rendered hideous by the insane requirements of s21(4) regarding the need for the notice to state the ‘last date of a period of the tenancy’, which has caused many a landlord to lose his case and declare the law to be an ass. Let us hope that this blight on an other wise straightforward process is done away with in the forthcoming Law Commission proposed new tenancy laws, should they ever enter the statute book. Although for many landlords it may appear just as one step forward after two steps back.