Who's afraid of the TDS?

Rummaging in Google's news pages recently I came upon an interesting report which indicates that landlords are so worried about the pending tenancy deposit scheme (being introduced under the Housing Act 2004) that they have decided to continue to pay letting agents to manage their properties for them, rather than go it alone. The article concludes that this is an unforseen effect of the new law, and suggests that the increasing regulation and bureaucracy may result in landlords leaving the private rented sector altogether. Not something I suspect that the government will want.

Of course this trend might also be because landlords think that they will have to use an agent. A recent questioner to my Q&A page on my website seemed to think that she would only be able to comply with the new laws by using an agency. I am sure that this is a view which many agents would like to encourage! However it is not correct - the new schemes will have to be available for both landlords letting in person and those letting via agents.

In fact a little bird has told me that this might be causing problems, in that none of the companies who have tendered to run the scheme have satisfied the government's requirements in this respect, which means that it is possible that they may not be able to introduce the scheme in October, as intended, after all. However 1 October is still clearly given as the start date on the ODPM website, so we will have to see what happens.

The end of the tolerated trespasser?

Note - the Landlord Law Blog has now moved to www.landlordlawblog.co.uk.

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For a long time housing law has been bedeviled by a concept known as 'the tolerated trespasser' which occurs when a tenant who has had a suspended possession order made against him, breaches the terms of the order but is allowed to stay in occupation.

A suspended possession order is where a possession order is made but the landlord is not allowed to send in the bailiffs to recover physical possession of the property so long as the tenant complies with conditions set out in the court order - normally relating to the payment of the rent arrears by instalments. Often the terms of the order are breached by something which was not the tenants fault, such a failure to pay rent which is solely due to non payment of housing benefit. He then becomes a 'tolerated trespasser'.

This 'tolerated trespasser' situation has caused problems, as many tenants (generally tenants of registered social landlords such as council tenants) have continued to live in the properties months and years after the order was made, but because their tenancy officially been ended when the order was breached they are no longer proper tenants. This means for example that they cannot enforce repairing covenants against their landlords.

However in a recent case, the Court of Appeal has suggested a new form of court order to solve this problem. In this new form of order, it will state that a possession order has been made but will provide for the date for possession to be fixed by the court at a later stage, upon application by the claimant if the defendant breaches the terms of the order. In the meantime the defendant keeps his tenancy, and the 'tolerated trespasser' problems will not arise.

Its nice to see the Court of Appeal sorting things out. Let us hope that the new order is taken up as they suggest, and that it works.

The case (which is actually two cases heard together) is reported on BAILII and is called Bristol City Council v. Hassan/Bristol City Council v. Glastonbury.

More trouble for ASBO landlord

I have received in the post a copy of an article about ASBO landlord Steven Dickens, mentioned in my earlier post, who it appears is in more trouble. Fresh charges are mentioned in the article, which all appear to involve obtaining property by deception from the Department of Work and Pensions and the Conwy Council Borough Council. The sum mentioned is £45,931.48.

It looks like a family business as his parents and partner are to be charged also.

Mr Dickens asked the court if he could have his passport back (handed to police as part of his bail conditions) so he could have a family holiday abroad, but this was refused.

The full trial is due to be heard next year. No doubt I will be kept informed by my Welsh correspondent, to which many thanks.

In the meantime, from another online article here it looks as if Mr Dickens (or rather his court appointed receiver) is selling his property stock. Sale proceeds are in the region of two million pounds, which will be nice for Mr Dickens' creditors. No doubt the DWP and Conwy Council will be looking to the sale proceeds for recompense, should the claims against Dickens be proved.

Waste paper

I have just recieved a delivery of six individual envelopes all with advertising literature from a well known legal training organisation. It was some sort of special delivery as a little man came in a van to deliver them to me. All of the six envelopes and their contents have gone straight into the bin.

This is such a waste of resources. I can't help feeling that, with the availability of electronic communication which wastes less trees, there should be some sort of limit on this sort of paper advertising.

Possession claims stats

For those who are interested in such things, the Department of Constitutional Affairs have published the stats for possession proceedings which can be viewed here.

To see the figures you have to scroll right down to the end of the page. The stats are divided into mortgage claims and landlord possession claims, the latter including both social and private landlords.

The figues for this quarter are slightly up on last year, but less than the previous years. It looks as if the trend over all is downwards, as the total figures for 2001 claims made was 175,908 whereas the total claims for last year were 144,674. For some reason the number of claims always seems to be higher in the first quarter of the year. It seems fairly constant that only about 67% of claims get converted into possession orders (including suspended orders).

Sad but true

I met a friend the other day, who was absolutely incandescent about the fact that her (new) solicitors had asked her to provide proof of her identity. "What about my opponent?" she kept asking, "They don’t ask her to prove who she is!"

I explained to her that most solicitors are obliged to do this now, we don’t particularly want to (all that extra administration) but if we innocently act for a client who is not who he says he is, and who is involved in money laundering, we can be jailed along with the client. She was unmoved by the prospect of innocent solicitors being jailed because of the shenanigans of their clients, but exclaimed "Oh what an untrusting world it is nowadays!". Well that’s true enough.

Another unfair decision against a landlord

I did an advice today for a lady who had brought proceedings for possession (acting in person) on the basis of over £12,000 in arrears of rent. However the Judge put back the date for possession for over seven weeks (during which periode of time it is virtually certain that the tenant will pay no rent) because the daughter of the tenant was due to take her 'O' levels and he did not want her to be disturbed.

I have seen a lot of unreasonable decisions, but I have to say that this takes the biscuit! Why should my client be responsible (effectively) for the cost of housing her tenants daugher during her 'O' levels? Bearing in mind that even once the date for possession arrives, it will then take up to six weeks or more to actually obtain a bailiffs appointment.

No wonder the Law Commission in their Renting Homes consultation (see last post) received so many complaints from landlords about Judges use of their discretion in possession claims!

They propose to solve the problem, by the way, by making the exercise of a Judge's discretion statutorily structured. This means that the Judge will have a checklist of questions they must answer before coming to a decision. Let us hope (if it happens) that it helps them come to more sensible decisions.

Mind you, if my lady had used our repossession service instead of going alone, we would have made sure that the claim form was drafted properly, which would have ensured that the very most time the Judge could have given would have been six weeks - and I expect my barrister would have made sure that the period was actually much less than this. But if landlords will act in person ....

Renting homes - the final report

For the past four years, the Law Commission has been working on a project called 'Renting Homes' which is looking at housing law in England and Wales with a view to making it less complex.

Two consultation papers (with over 400 responses) and over 70 public visits later, they have now produced a final report and draft 'Renting Homes' bill. So what does it say?

Here are some of their recommendations:

• Replacing the 13 or so types of agreement with just two - one for social landlords and one for private landlords
  
• Making tenancy agreements (or rather occupation agreements as they will be used for licenses as well as tenancies) more comprehensive, including all relevant law. They will be much longer than most current agreements, and most of their content will be prescribed (ie will be compulsory)
  
• Landlords will be under a legal duty to to provide an agreement in the proper form - if they don't occupiers will be legally entitled to withhold up to two months rent, plus landlords will not be able to evict them for six months after the agreement is finally provided.
  
• It will be possible to add a new occupier to an agreement without having to draft up a new one
  
• One of joint occupiers will be able to end their liability under an agreement without affecting the other occupiers
  
• There will be a new procedure landlords will be able to use if they think tenants have abandoned the property, to recover possession without having to get a court order
  

However it is a long report so if you are interested you should download a copy and read it for yourself. It can be found at the Law Commission web-site and via Landlord-Law at www.law-reform.co.uk.

If the draft bill becomes law it will be a major piece of legislation affecting millions of people - some 1/3 of all property in England and Wales is rented, approximatly 10% being with private landlords.

The only current types of tenancy which (as the bill is currently drafted) will not be affected, will be protected/secure tenants under the Rent Act 1977 and tenancies under the Rent (Agriculture) Act.

Why not tell the Law Commission what you think about the courts?

Further to my earlier post on tbe Law Commission's issues paper and consultation on housing dispute resolution, I have now placed an answerform online to allow members of the public to respond easily.

So rather than having to read a ginormous paper, and then painfully draft your anwers with paper and pen, all you need to do it go to www.law-reform.co.uk, and read and answer the form online. If you want to check what the issues paper says about one of the questions, the form helpfully gives the relevant section numbers so you can look it up. Needless to say you will find the issues paper online both on my web-site and on the Law Commission's web-site.

If you are at all unhappy about the way housing disputes are currently dealt with in this country, do use the form and let your views be known. The Law Commission cannot take you views into account if they do not know what they are. This is democrary in action - use it!