Plus ca change, plus c'est la meme chose

I did my Q&A this morning, something I do every other Sunday morning, and which see I wrote about nearly a year ago on this blog. I always get far more questions than the 10 that get answered (I had 32 today I think) and the same old questions still keep cropping up.

For example, unbelievably, there are still landlords who think that they can go in and change the locks if their tenant has not moved out after the notice period of the possession notice expires. I still get loads of questions on damage deposits, and from the way some of these are worded it is apparent that the landlords are failing to protect deposits under the statutory tenancy deposit schemes. Properties are still being let in a poor condition, and there still appear to be quite a lot of dodgy and/or useless agents, greedy landlords, and clueless (or thick) tenants about.

No change there then.

Two months rent in advance is not the same as a damage deposit

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

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When I wrote about tenancy deposit protection avoidance earlier this year, I did not mention one other option which I understand is being taken up by many landlords – that of taking no deposit, but two months rent in advance instead of one month.

Although there is nothing wrong with this, and superficially it seems the same, as very often the tenant will be paying the same amount of money in advance, in fact the landlord will not be protected against damage in the same way as he will by taking a damage deposit. This is because the money will be paid as rent.

The significance of this is that money paid as rent cannot, technically, be used for dealing with damage. That is not its purpose. So with a six month tenancy the tenants will pay no rent in the last two months. They do not have to – it was paid in advance. However, if they then leave the property in a mess, the landlord will have no fund of money to deal with it. In fact it is probably more likely that the tenants will leave the property in a mess. As they are not at risk of losing their damage deposit there is no reason why they should bother overmuch about the condition in which the property is left.

Better for landlords to bite the bullet and take a deposit, in my opinion. The custodial scheme, for example, is free of charge, everything can be done via the internet, and the tenants will know (as the money is being held by the scheme administrators) that their money is safe. Where is the problem?

Hands across the Pond

If anyone is interested in why I became a sole practitioner and then went on to develop my online service, see this post which I wrote for American lawyer and blogger Susan Cartier Liebel. Susan has developed a consultancy helping American lawyers who are tired of ‘big law’ and want a life, to go solo.

Nerdy stuff

Visiting the Amazon associates central website the other day after a long absence, I was excited to see that they now have some intriguing new ‘widgets’. The most useful for me is the ‘my favourites’ widget, a customizable box you can put on your web-site containing selected books, and your own comments on each book. Once you have set the box up and put it online, you can then alter it via the Amazon site, for example by changing the books.

I have put one on this blog, in the side bar, featuring all the books I have mentioned in posts. It will now be much easier to add new books, than via the individual entry for each book I did before.

I have also done lots of ‘favourites’ boxes on my Landlord-Law site (I don’t call them that, you can change the text at the top). Its great because I can recommend books which relate to the content of the page. More of a service to readers really than a money earning exercise - I think my average earnings are about £10 per quarter so it is hardly a get rich quick exercise.

But there is more. I can now put links in the text like this (hover your mouse, it is supposed to make a box pop up, but even if it doesn't it will still link to the book). Cool eh? You need an ASIN for that – I had to go to the ever helpful Wikipedia to find out what that was, and how to locate it (it is the ISDN number for books).

Other widgets include a slide show and product cloud, but I don’t like them as much, so will leave them for the time being.

Still, hours of innocent fun to be had. Why not try it - you too could earn a few pence extra per day! Oh, and here's a banner:



Of course your links depend on the Amazon site working properly. So if none of the above are showing - its not my fault!

In two minds about Malcolm

Speaking to a solicitor friend of mine recently who does housing association repossession work, she said bitterly that it seemed to be impossible nowadays to evict tenants who have any sort of disability. She is not going to be pleased with the recent Court of Appeal decision in London Borough of Lewisham -v- Malcolm.

Mr Malcolm was a tenant of Lewisham LB. He suffered from schizophrenia which initially was controlled by medication. He applied to buy his flat under his statutory right to buy. However there were delays. At about this time he stopped taking his medication, and his behaviour became erratic. Before his sale had gone through he let his property to tenants. By doing this he lost his security of tenure, and with it many of his statutory rights. Lewisham therefore decided to serve him with a Notice to Quit, and then issued proceedings for possession.

Normally there would be no defence to such as claim, Malcolm having lost his security of tenure. However Malcolm defended on the basis of the Disability Discrimination Act 1995, section 22(3) of which makes it unlawful to discriminate against a disabled person by evicting them, claiming that he had only parted possession with the flat as a result of his disability which led him to make irrational decisions.

At first instance the Judge found that (1) Malcolm was not disabled within the meaning of the act, (2) that the section would not apply anyway in a claim where the Judge had no discretion to refuse an order for possession, (3) that the subletting was not caused by his disability and (4) that the LA could not have discriminated as they had no knowledge of his disability. However the Court of Appeal did not agree.

Rather worryingly for landlords, the Court of Appeal found for the tenant on all four of the issues in question. Malcolm was disabled with in the meaning of the act. The subletting had been connected to his disability as it had affected his day to day activities (and by implication the subletting, even though there was no direct evidence on this point). A landlord does not have to know about the disability to discriminate against the disabled, and finally s23(3)(c) is unqualified and does not limit the unlawfulness to cases where Judges have a discretion to grant possession. The Judge refers in paragraph 52 to two County Court decisions, one of being a case where a Judge refused to make an order under s21 where the tenant was disabled, as examples of courts happily adapting to the DDA 95 without difficulty.

The thought of landlords being unable to evict tenants under section 21 because of the DDA will send a shiver down the spine of all private landlords, and may well result in a private determination not to knowingly let to any disabled tenant in future. This will do nothing to help the prospects of the disabled (particularly those suffering from mental illness) obtaining accommodation in the private sector.

I have to say that although I do not like discrimination and approve broadly of protective legislation, I am worried by this case. For example, the status of Malcolm’s current occupation is now uncertain. He presumably is now unevictable, but it is probable that he does not have a tenancy (if the notice to quit served on him is still valid). Does this mean for example that the repairing obligations in s11 of the Landlord and Tenant Act 1985 do not apply? Or would this also be a breach of the DDA?

Also, it is one thing to use this type of legislation against social landlords, who to a certain extent have a duty to look after those in society who are disadvantaged. However this case opens up the prospect of the DDA being used against private landlords, even if claims for possession are brought under section 21. Is it right that a private landlord, who may only have a few properties, should be forced unwillingly to continue to rent to a tenant, simply because he is disabled, even if the landlord was unaware of his disability, when he would normally be entitled to possession as of right? Or would the private landlord be able to use justification in such a case?

This case opens up a vista of uncertainly which will no doubt make private landlords (particularly those who rent to tenants who are disabled) most uneasy.

Eco vision in Norfolk

I was excited to read about possible plans for an eco town in the now disused RAF centre at Coltishall in Norfolk. It would 10,000 homes and 2,000 jobs with an electric bus link to Norwich and a new broad.

It sounds brilliant. I hope they get the ‘green light’

Good luck Gordon Brown

I read a book on Gordon Brown today. There is a cautious feeling of optimism in our house at his becoming PM, and I have long had a feeling that in the cup of cappuccino which is the Labour Party, Tony Blair was the froth on the top and Gordon Brown the grounds underneath.

Deciding against the Tom Bower book (I would prefer to read something which gives hope for the future), I bought Gordon Brown, Past, Present and Future by Francis Beckett, a (more or less) supporter, which I read this afternoon.

It was an enjoyable read. He gives a certain amount of background, for example he discusses Browns alleged ‘weakness’ in not pursuing top jobs at certain times, explaining that those jobs were either ones he didn’t actually want anyway, or he that felt it was the wrong time to pursue them. I must say I felt a lot more sympathy for Gordon Brown, spending that crucial day after John Smith died in writing obituaries, than for Tony Blair, eagerly setting his machine in motion to bid for the leadership.

I am not sufficiently knowledgeable on all the events to say whether Beckett’s book gives an accurate representation or not of Brown, his actions and his policies. However I would like to think that the picture he gives of a man deeply concerned about poverty and education, with an abiding sense of moral justice, and a disinclination to follow any course of action he has not thoroughly researched is a correct one. It is comforting to think that the man in charge understands the economy and (hopefully) will be reasonably competent at the job.

I am also guardedly encouraged by the fact that he has started his premiership by focusing on something really needed in this country – more affordable housing. It would be really nice if he could also think a bit about transport (better trains please), and perhaps leave the transport minister there long enough to sort things out properly. And please, please can he not squander time and money on unnecessary wars, and interference in the running of foreign countries. We have quite enough problems in our own country to sort out, and that is after all what he was elected for (genuine humanitarian concerns excepted).

The only thing that worries me a bit is that he really, really wanted the job. Didn’t someone (was it Plato?) say that the best rulers are those who do not want to rule, the worst those who eagerly seek the position? But I wish him well.