Tuesday, December 23, 2008

Painsmith Blog

I have just discovered the excellent blog from Landlord and Tenant specialists Painsmith Solicitors. It has some really interesting posts, as one would expect, and I shall certainly be reading it in future. Highly recommended to anyone interested in landlord and tenant.

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Homeless hostel too comfortable says VAT man

Reading the recent issue of Roof Magazine, I came across this utterly bonkers decision by the VAT authorities.

Byker Housing Association has built a new 31 bed hostel for the homeless in Newcastle – however the VAT authorities have deemed it to be a commercial building (i.e. a hotel) rather than a residential one - because it is too comfortable! This means that it becomes liable for VAT of £315,000 – which will put Byker Bridge out of business.

Under the VAT rules, hostels should be exempt from VAT if they are for a residential use, designed as a dwelling, or used for a relevant charitable purpose. Despite this, because the VAT office does not have a workable definition of a homeless persons hostel, and because the new hostel is quite nice, they are treating it as if it were a hotel for tax purposes. Even though the building was partly developed with Housing Corporation finance which is only available for non commercial ventures!

Hopefully this decision will be set aside. Otherwise Byker Bridge will go out of business, there will be 1,500 per year more homeless on the streets of Newcastle, and it will have a knock on effect on other registered social landlords developing homeless hostels

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Saturday, December 20, 2008

Shelter – Charity of the Month (December 2008)

Shelter is a great force for good in this country and thousands of tenants and homeless people will be forever grateful to it for its help.

As they say on their web-site "Shelter believes everyone should have a home. We help people find and keep a home. We campaign for decent housing for all".

They offer some brilliant services. For example:

  • They have a free housing advice helpline - 0808 800 4444
  • They have numerous advice offices where you can visit for free help and advice
  • They campaign tirelessly – see here on their part in the recent assistance given to prevent repossessions
  • They publish an excellent magazine Roof (reviewed by me on Landlord-Law here)
  • And they also have many resources for professionals
If you want to donate – click here

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Friday, December 19, 2008

Convicted HMO landlord – doing the community a service?

This is the sort of attitude that Local Authorities have to put up with. Mr Bowden in Ipswich, who recently pleaded guilty convicted in the Magistrates Court to operating a house of multiple occupation without a licence (reported here), considers he has done nothing wrong. However,

- The property had 19 people living in it
- There were minimal fire precautions
- A converted attic was only accessible via an unsafe staircase
- A woman was living in a room with no natural light,

to name just a few of the problems. Yet Mr Bowden claimed "It seems a ridiculous thing to go to court about. It's something over nothing. Yes, I should've had a licence to rent a third floor, but I wasn't aware I needed one. … I've given people a roof over their heads that they otherwise couldn't get. Some people can't afford a deposit so I asked for very little. In some respects I was helping the council out but obviously they took a different view - I think I was doing the community a good service."

There is of course some force in what he says. It is generally better for the homeless person to be in an unsafe building than on the street. However an unsafe building threatens everyone around it. If there was a fire, all of the 19 occupants could have been killed, along with those living in adjacent properties. It cannot be allowed.

Mr Bowden, despite his protestations, is no doubt aware of this. Apparently when Environmental Health Officials made an appointment to view the property he made sure his tenants were out of the way.

It is good to see that there are more and more reports of Local Authorities using their powers under the Housing Act 2004, for example a report here of a landlord fined in Oxford.. I firmly believe that Local Authority action is the best way to deal with defective property, and that it should not be up to individual tenants to do this.

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Tuesday, December 16, 2008

Landlords responsiblities for fire safety

I have been sent a press release by the Fire Brigade regarding a sucessful prosecution of a landlord who was found guilty of breaches of fire safety legislation and ordered to pay nearly £13,000 in fines and costs. The press release reads:

Uxbridge Magistrates' Court fined Armajit Singh, £5,600 for seven breaches of the Regulatory Reform (Fire Safety) Order 2005. Mr. Singh did not own the premises but was managing it for his uncle and had responsibility for the property’s maintenance and repairs.

The prosecution followed a fire at the house converted into flats on Wood End Green Road, Hayes on 14 September 2007. A man and a woman were woken by the blaze and tried to escape via the staircase but it was engulfed by thick black smoke. They escaped by smashing the first floor bedroom window and jumping out. The woman broke her ankle in the fall and the man suffered deep cuts to his hands.

Fire safety inspectors visited the premises and found that there were a number of faults including no smoke alarm or fire extinguishers in the property and none of the doors were fire resistant.

The Regulatory Reform (Fire Safety) Order 2005 came into force in October 2006. In a landlord and tenant context it provides for those in control of properties and responsible for the maintenance and repairs (generally this will be the landlord) to carry out a fire risk assessment (which must be kept up to date), and to implement appropriate fire safety measures to minimise the risk to life from fire.

Note that the two pictures showing the damage done by the fire are copyright of the London Fire Brigade.

Mind you, maybe Mr Singh got off lightly. In October, Mr Mehmat Parlak was sentenced to four months imprisonment and his company, Watchacre properties limited, was fined £21,000 following a similar prosecution under the Regulations. Landlords be warned!

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Saturday, November 29, 2008

VAT changes – how these are being dealt with on the Landlord-Law site

Mr Darlings reduction of the VAT rate to 15% from 17.5% has created a bit of a headache for myself and doubtless lots of other UK traders. This blog seems to be the best place to explain the way I have decided to deal with the various prices on Landlord-Law.

For me to change the Landlord-Law membership fees (4.70/£15/£70.50) would involve my web-designer doing work to the site (which I would have to pay for), as online membership purchase is completely automatic and done via a secure server. Were I to drop the prices, the benefit to the customers would be very small - £0.10p, £0.31p, and £1 respectively. As the Landlord-Law service is (in my view) pretty good value anyway, I am going to leave these prices as they are. Sorry!

For the other prices, I have decided to deal with them as follows.

Where the online price is based on an ex VAT round figure I have reduced my price to take account of the VAT fall. This includes Kits 1, 2, 3, and 4 non member prices, all the possession proceedings, and the tenancy amendments service.

Where the total price was chosen because it is a nice round figure, in particular the £75 advice fee, this has been left as it is. I put a lot of work into the advice given and I think clients can (effectively) pay another £1.60. I have also left the possession notice drafting fixed fee of £75 (although this is not used much as most people use the online forms), and the members kit prices for kits 3, 4 and 5. Members buying kits get a lot of support via the online forum so I am not going to reduce these prices.

The other two prices are the non members kit 5 price, which I have reduced to £95 (a bit more than the VAT drop) and my tenancy agreement check price, which has gone up to £391 (a slight increase on the previous fee).

I will take a view on prices generally next year if Mr Darling puts the VAT up again.

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Wednesday, November 26, 2008

Student lettings - new agreements on Landlord-Law

I am just finishing a fairly long running project (about 2 months) to develop some new special tenancy agreements for student lets, for my Landlord-Law site.

Developed initially in response to a query from one of my members on the discussion forum, they are designed to deal with two particular problems with student lets:

  • The fact that they are generally signed when the previous tenants are still in occupation (which could potentially cause major problems if they refused to move out, as legally they are entitled to do), and
  • The fact that landlords will want to let the property for the whole year, but many students will not want to live there over the summer.

It was initially just going to be one agreement. However when I put it out to consultation with the membership, some of them wanted one part and others wanted another, and some said that they would definitely not want that part, so in the end I decided to do a number of different agreements using different combinations.

Then another member sent me his standard agreement for out of season holiday lets so I thought that perhaps I would do one of them too.

So there will eventually be four different types, although at the time of typing this I have not yet loaded up the out of season holiday let one.

Its been a bit of a time for tenancy drafting recently. Apart from these student agreements, I have been asked by clients to do an under 18 tenant (signing jointly with her guarantor), an assured tenancy for an elderly couple renting a flat intended for the rest of their lifetime, and a memorandum for protected tenancies. Heigh Ho!

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Friday, November 21, 2008

HMO licensing – tenants entitled to rent refund

I was interested to read the report here about a landlord in Liverpool who was convicted of operating a House in Multiple Occupation (HMO) without a license, and fined £3,000 plus costs. The Council then wrote to all his tenants, who successfully claimed back a part of their rent.

The rent refund application must be made to the Residential Property Tribunal (RPT) who can order the landlord to pay back up to 12 months rent to his tenants. In this case the RPT ordered the landlord to refund three months rent. This totalled £3,900, so in total this landlords failure to obtain a license for his property has cost him over £7,000 (if the costs order is taken into account).

Tenants wanting to make a similar application will find a pdf giving guidance and other information linked from the right hand margin of this page on my web-site www.landlordlaw.co.uk.

Landlords who are worried that their property might need a license, should contact their Local Authority asap. For contact details see the Landlord-Law Local Authority Directory.

Note that we are still compiling our list of HMO licence fees charged by different Local Authorities.

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Tuesday, November 18, 2008

Stop the traffik – charity of the month

Those of us who live independent lives in the west are very privileged. Many people are not so fortunate. Some are bought and sold as commodities. Children stolen or sold by their families into slavery. The reason (or one of them) – so cheap goods can be sold to us. Our clothes, coffee and chocolate.
Human traffic is the ultimate indignity. So this is why Stop the Traffik is the first Landlord-Law charity of the month.

One way you can help, is to only buy chocolate which is from ethical sources. Download a good chocolate guide from the Stop the Traffik web-site to find out more.

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Sunday, November 16, 2008

Landlords credit checks and happy tenants – two surveys

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


I have recently been given information about two surveys in the private rented sector.

First survey – credit checks
The first survey is perhaps the more serious of the two. The Letting Protection Service have commissioned a survey of 1,389 private landlords which shows that most landlords do not carry out proper checks before letting tenants in to their property. Their statistics show that:

  • 63% of landlords are happy to entrust their home to tenants based on little more than a hunch
  • Amongst those with bad experiences, 71% of private landlords have been left out of pocket because of unsuitable tenants
  • 24% of UK landlords allow tenants to move into their property after just one face-to-face meeting
  • 11% have received threats to themselves or their family as a result of a rogue tenant

Out of the landlords surveyed, only 13% of those questioned cited using a reference or credit search package as their usual method of vetting prospective tenants.

I have to say that I agree with the Letting Protection Service that this is not good news. All the experts agree that the most important aspect of letting property is having a good tenant. Although most tenants turn out to be fine, credit checks and references are essential. For example con men appear respectable and are very persuasive, that is why they suceed. You can’t always trust your judgment, particularly if you are not experienced at letting property.

There are some interesting geographical differences thrown up by the survey, which found "the North West of the country to be worst affected by bad tenants, with 82 percent of landlords faced with bad experiences at one time or another. Landlords in the West Midlands had the least trouble with their tenants, although 63 percent still reported having experienced problems. Their North-Eastern counterparts proved to be the country’s most cautious but, nonetheless, 55% give away the keys to their houses based only on a first impression."

The bigger percentage of problems in the North West may have something to do with Blackpool, which has a massive private rented sector, with many bedsits, and which is said to be the ‘drug death capital of the UK’ – see my blog entry here.

The press release goes on to say "The survey identified the UK landlord’s ideal tenants as middle aged couples - with 15 per cent of respondents finding the demographic the most suitable and reliable. Students and pet owners top the list of the least-preferred tenants and landlords would generally rather have women than men renting their properties."

The Letting Protection Service have of course carried out this survey to give publicity to their new online service. "The LPS" runs the press release "provides landlords with a range of services that have traditionally only been available through letting agents, including the first online quick tenant reference to offer an instant rent guarantee, comprehensive reports on a tenant’s suitability, gas safety inspections and emergency breakdown insurance cover." You can see their web-site here.

Good for them, however it is not true to say that these services have been previously unavailable to landlords. The Tenant Verify service from LettingZone has a good reputation, and further companies can be found via this link. There are many companies doing gas certificates, just look in yellow pages. However if you are a landlord, the new Letting Protection online Service is worth checking out.

Second survey – happy tenants

The second survey was provided to me by the Deposit Protection Service (one of the three companies running tenancy deposit protection schemes). Their survey says:

"84% of tenants get on well with their landlord and nearly a quarter of these described their relationship with their landlord as ‘fantastic,’ while 39% of tenants described their relationship as ‘okay.’ Only 16% of respondents said that they did not have a good relationship with their landlord."

This, they say, disproves the myth that landlords and tenants are always at odds. I would add also that it disproves the poor view often held of landlords in general by people who should know better. Most landlords provide an excellent service (although sadly not all of them).

The DPS Director, Kevin Firth goes on to say "Our figures show that since deposit protection legislation was introduced, relatively few disputes have needed to be resolved through the Alternative Dispute Resolution (ADR) Service".

So that’s nice then. Maybe tenants are a bit choosier in looking for landlords than landlords are in looking for tenants.

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Sunday, November 09, 2008

Burning wood

A couple of years ago we had an energy audit of our house. One of the suggestions made was that we had a wood burning stove in the living room. So when a small savings policy matured recently we decided to have one installed.

Our energy audit man had recommended a local firm so we duly went to see them in July. They recommended Clearview stoves which they said made the best stoves on the market. So we duly put down a deposit, and arranged for the stove to be installed in October, which was when the policy matured.

The installation, which took 3 days, was a bit of a business. We had to have a new flue liner installed which meant that the installer and his boy spent a lot of time on the roof. Our old gas stove was taken out, the original brick fireplace revealed, and a nice hearth made of old fashioned brick tiles cemented in. Our little black stove now stands demurely on this, its round black stove pipe leading up into the chimney.

Of course if you have a wood burning stove you need wood. We had an initial delivery from a man recommended from our stove supplier some time ago, before the fire was installed. That was fairly expensive but turned out to be very good slow burning wood. We have also had a delivery from a local tree surgeon, which was cheaper but not quite such good quality. The stove seems to eat up wood at quite a rate so we will have to keep getting it in.

I have of course thought about making bricks from our newspapers, and indeed have had a newspaper brick making machine mouldering in the outside shed for some 15 years. I made a few last week but they did not turn out very well. They also took about five days to dry out enough to be able to burn, plus during the drying out process they started to disintegrate. I haven’t given up though. On reflection maybe I need to soak the newspaper longer before putting it in the mould. However, I can see the drying time is going to be a problem.

But it is lovely having the fire. We can watch the flames through the glass door, and the wind in the chimney gives out a soothing background wuthering. It’s a bit more work lighting a wood stove than just switching on the gas heater, but it has much more personality, and has given a whole new look to the sitting room (along with the new hearth rug, and the wood store). It is also nice to know that our heating is not at the mercy of whoever controls the few gas pipelines into this country, plus at a pinch we could also cook our dinner on it (I did do a steak and kidney casserole the day after installation, but my husband said it marked the paintwork).

I will go back on topic with my next post I promise!

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Wednesday, November 05, 2008

God Bless America!

I am not often excited about politics. Certainly not foreign politics. But like many, I have been swept up and away by the Obama campaign.

In common I suspect with many British, I had never heard of Barack Obama until recently, and I suppose vaguely wanted Hilary Clinton to win because I had heard of her, sort of agreed with her, and she was a woman. (And surely anything must be better than the Bush administration …) But then Obama won the nomination and we all thought, who is this man? Learning on the internet that he had written two books, I popped into Waterstones and bought Dreams of my Father to find out more.

It is a wonderful book. Many times I found myself in tears, not only because of the powerful writing and the ideas expressed, but at the thought that this man, writing these words, might one day be president of the United States of America. Having finished it, the following week I snuck in and bought the Audacity of Hope as well (and I think, took the only copy in the shop – surely they should be piled up on the tables?).

This is a remarkable man. I think he brings hope for us all. Not just because in himself he crosses the divide between black and white, but because he is an intelligent man who thinks about things, and he is a powerful speaker who can communicate his vision to his people. Depressing times are ahead. If he can inspire his people, he can help them overcome their problems. Our problems.

Another beacon of hope, is the fact that his campaign was mostly funded, not by big business, but by the ordinary people of America. This means that he owes loyalty to them, not the big corporations. If anyone can stand up to the corporate bully boys it is him.

It was on the bus that I read these remarkable words in The Audacity of Hope :

"Instead of subsidising the oil industry, we should end every single tax break the industry currently receives and demand that 1 percent of the revenues from oil companies with over $1 billion in quarterly profits go toward financing alternative energy research and the necessary infrastructure …"

I was so thrilled by the vision of hope that this presented, that I was tempted to chuck a tenner myself into his campaign fund, although of course I can’t because I am not American.

The environmental problems facing our planet are so huge, we have no hope of dealing with them without America. The depressingly negative attitude of the Bush administration put the whole future of our planet at risk. In private moments I have even wondered if perhaps one day, if things did not improve, the rest of the world might be forced to unite to take hostile action against them. But Obama has changed all that. There are some wonderful scientists and initiatives in America (and also in Britain of course) which only need some support and help to get going. Hopefully they will now get it. And where America leads, the rest of the world will follow.

I am also enormously encouraged by his ability to get people to come together and work together. Like many, I loathe the negativism which pervades politics, and my usual reaction when politicians start their 'yes you did, no you didn’t' routine is to either switch off the TV or (if that is not possible) to walk out of the room. Obama has shown that co-operation and inclusivity can be popular and win votes. Let us hope that we see more of it.

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Wednesday, October 29, 2008

Another tenancy deposit decision

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


This is a report of a case kindly provided to me by Simon Parrott of Palmers Solicitors (Bedford).

I am writing following a recent hearing at Bedford County Court on 28th October, to let you know the result of my case. I act for the landlords.

The circumstances of the case were that the tenancy deposit had not been protected at the time that it was taken (1st June 2007). Then, approximately 13½ months later (mid July 2008), this was discovered by my clients after receiving a request from the Tenants for confirmation of the Deposit Protection Scheme. My Clients immediately took steps to protect the deposit with DPS that same day and then served the “prescribed” information upon the tenants. The tenants denied receipt of various letters and documents but they had received proof of the protection three times over by the end of July, and by the time they issued their proceedings claiming the penalty (mid August). We made an application to strike out the case under CPR24 and the hearing on 28th was our summary judgment application.

The Judge granted our application and struck out the claim on the ground that there was no real prospect of success. The essence of the judgement was that, considering the wording of Section 214 of the Housing Act, the Judge was satisfied that because we had paid the money into DPS we were able to satisfy the initial requirements of “an authorised scheme”. Having then served this information upon the tenants, the tenants were then able to obtain confirmation from the scheme administrator that the deposit was being held in accordance with the scheme. The tenants were therefore not able to get over the initial test of Section 214(1). The Judge also had quite considerable regard to the notes to the Housing Act, and in particular note 503, and was satisfied that the time for consideration of the Landlord’s rectification of his default was at the Court hearing.

One particular issue of the case was that my clients were unable to use any of the group insurance schemes available to them because by the time they discovered their mistake the tenancy had outlived its contractual term and was therefore a statutory periodic tenancy. Neither TDS nor MyDeposits would allow them to protect the deposit in those circumstances and my clients were, therefore, only able to protect the deposit by paying it into the statutory scheme (DPS). Whilst we were therefore unable to satisfy the initial requirements of Section 213(3), the Judge accepted my submission that by accepting payment of the deposit out of time the DPS scheme “initial requirements” allowed a late payment into the scheme which then enabled the Landlord to escape the penalty provisions of Section 214(4).

I am grateful to Richard Jones at Bury & Walkers for letting me have a copy of the Harvey v Bamforth report and whilst our District Judge was persuaded to read the report, he stressed that he didn’t feel himself bound by that as precedent.

This case makes it clear that, as things stand at present, tenants are unlikely to succeed if their landlord has protected the deposit before the issue of proceedings, and possibly if it is protected afterwards so long as this is before the hearing date.

I understand that these proceedings were issued by the Money Claim Online procedure. I recently came across this practice note here (you can also locate it by putting tenancy deposit in the search box on the Court Service web-site home page) which indicates that section 214 claims should really be made using the Part 8 procedure. It appears that in due course the CPR will be amended to provide for this.

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Sunday, October 26, 2008

Two B&Bs and one Hotel – three book reviews in one

From time to time I do book reviews on the Landlord-Law site, and several of these have been for a publisher called How to Books. They specialise in publishing really nice self help books on a wide range of topics. Books reviewed for them in the past include Tony Booths excellent Buy to let Handbook and How to Invest in the UK Property Market by Gerry Fitzgerald.

The publishers recently sent me three books, two on running B & Bs (one in England and the other in France) and one on buying and running a hotel. As they are not really landlord and tenant books, I decided to review them on this blog instead of on Landlord-Law, and as they form a theme I thought it would be nice to review them together. I will review them in the order that I read them.

Running a B&B – a landlady’s guide by Christabel Milner
This is an absolute gem of a book, which I enjoyed reading very much. I expect we have all at some time or another thought about running a bed and breakfast. Ms Milner, who has been a landlady for 27 years, is very experienced and it shows in her book.

The book is very clear and precise as well as entertaining. She starts by telling us how she started in the business, and the properties she has developed and run as B&Bs. Part One then looks at what is involved in running a B&B, for example whether your home is suitable and how it can be adapted, and also considering whether there will be a market for your business locally. Part two then goes into the reality of running the B&B covering practical matters such as linen, keeping the room in readiness, bookings, taking payments, marketing, and of course the breakfasts. There is also an excellent chapter on personal safety.

Although I have no intention of running a B&B I found the book enchanting. How wonderful it must be to arrive at Ms Milners house on a cold and rainy day, to be ushered into a warm welcoming room, with its crisp clean linen and generous hospitality tray! With Ms Milner herself, there to assist if you need her, but discreetly withdrawing to her own quarters when you don’t. A touring holiday staying at B&Bs is one of the great ways to see Britain, and this book will help anyone who want to be a part of that. Highly recommended.

How to Buy and Run your Own Hotel by Mark Lloyd
We all think we could run a B&B, but what about a hotel? Mark Lloyd had worked for years in the hospitality industry organising events, but had always wanted to run a hotel. This is the story of how he and his wife, together with their two young children, took the plunge and bought a hotel in Chipping Sodbury in the Cotswolds (in fact this hotel here).

Although this book gives a very good description of what is takes to buy and run a small ten roomed hotel, it is very uneven and I felt could have done with a lot of tidying up. Reading it from cover to cover, I found I was continually reading the same stories and the same points (good ones admittedly) over again. For example a detailed description of the day they took over the hotel is given twice – once in chapter 5 and then again at the end of the book. As a book it seemed to be at one time looking at things chronologically and at other times by topic, which was a bit confusing. However there are some great stories and Mr Lloyd is an entertaining writer.

The book paints a very clear picture of what it is like to take over a hotel, and the amount of work involved. In fact so busy are they that I am surprised that Mr Lloyd found the time to write a book at all. At the time of writing the book Mr Lloyd and his family had been there some 18 months. It was rather a shock to discover towards the end of the book, that fairly shortly after taking over, he had had a serious accident and had been hospitalised for several months. What a nightmare that must have been for him and his family!

For all its organisational inconsistencies, this book really is essential reading for anyone considering buying and running a hotel. I now know for sure that it is not something I want to do!

How to start and run a B&B in France
Do you sometimes tire of dreary old England with its constant rain and cold? Why not up sticks, buy a run down property in La Belle France and run it as a B&B? This is what Deborah Hunt and her husband did, and this book tells you how to do it.

This is a very well organised book and an excellent guide. Mrs Hunt and her husband are both architects and not surprisingly the whole process of renovating French property is gone into very thoroughly. In fact I would recommend this book to anyone who is considering buying and doing up property in France, irrespective of whether they intend renting out rooms. Mrs Hunt is also very clear about the different system in France and the process of buying French property and running a business.

If you are intending moving to France, obviously you will need to speak French. The book helpfully gives many lists of suitable words ands phrases, and every chapter ends with a hint on how you can improve your French (e.g. watch the TV news in French and read a French newspaper).

The book is very helpful on the different culture in France and the differences in what you will be expected to do as a B&B landlady in France as opposed to England. The author also looks at the different characteristics and expectations of different nationalities. Shamingly, English children are the worst behaved.

One charming feature of this book is that it is illustrated by Deborah Hunt’s own line drawings, which show different types of property and features. I also liked the cover illustrations (Susie Home - www.leperchoirdespaons.com).

At the end of the book, Mrs Hunt recorded interviews with five other English proprietors of French chambers d’hotes. These were fascinating and served to give a more rounded view of what can be done. All in all I would thoroughly recommend this book to anyone considering moving to France.

It has been fun reading these three books end to end and I have thoroughly enjoyed them all. They are all far more informative that I can describe here, and are all good reads in their own right, whether or not you are considering becoming a B&B landlady or hotelier.

Happily however they have not convinced me to change my job or to uproot and move to France. I enjoy running my legal and internet business too much, and however pretty France may be, I have no desire to always be a foreigner, plus I am dreadful at languages! But for a short period I lived the dream vicariously through these books, and that was enough for me.

NB If you want to buy any of the books, you will find them in the Amazon box in the right hand column of this blog.

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Monday, October 20, 2008

The Deposit Protection Service – problems answered

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

Since the tenancy deposit protection regulations came into force in April 2007 I have done quite a few blog entries on this subject, and there have been many comments from landlords and tenants. Some of these have been highly critical of the company running the custodial scheme, The Deposit Protection Service (DPS). In view of this, I thought it was only fair that I should contact them to give them an opportunity to respond to the criticisms which have been made about their service.

The DPS do not think it appropriate that they respond directly in this blog. However from what they have said to me, it appears that most of the problems complained of can be answered as follows:

  • It is essential that the information inputted when registering the deposit is correct. For example, if incorrect bank details are given then the claim cannot be progressed. If this happens the DPS will write to the landlord telling them that the information inputted is invalid and inviting them to deal with this so that their claim can be progressed.
  • When making a claim to have the deposit repaid, it is essential that the correct repayment ID is given otherwise the claim will be rejected.
  • The DPS also need to hear from both the landlord and the tenant before the deposit money can be repaid. It is up to the party seeking repayment to chase the other party. The DPS will not do this for you.
  • If the other party refuses to co-operate, then the single claim process can be followed. This may end in Adjudication if the other party does respond, otherwise the claim will be settled without the other party. Alternatively, if both parties are contactable and cooperating then the adjudication process can be used. In both these instances the party wanting to claim the money will have to apply to the DPS for the necessary forms.
  • The DPS do not deliberately delay payments to accrue more interest, they cannot do this even if they wanted to - they can only claim their agreed fees. They also point out that the Government have no access to these funds and do not make any financial gains from this scheme

For more information about the DPS service, you can visit their web-site at www.depositprotection.com, and there is a telephone helpline 0870 7071 707.

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Tenancy Deposit Protection – test case?

I have been contacted by a London tenant who is bringing a claim against his former landlords and their agents under the tenancy deposit protection legislation. He is looking for a local firm of solicitors to assist him with his claim (preferably on a pro bono or ‘no win no fee’ basis), which he hopes will be a ‘test case’. He tells me that the facts are briefly as follows:

- A well-established London based Estate Agency accepted a deposit to be held against a 1-year AST. The Agent registered the deposit with TDS over 5-months after the 14-day window allowed by UK Housing Law. The Agent never notified the Tenant of the deposit registration details despite repeated requests from the tenant.
- When the tenancy concluded, the Agent returned the deposit back to the tenant only after the tenant threatened legal action, and even then it was returned after a reasonable deadline was given by the tenant for its return without legal action.
- The tenant has filed a claim in West London County Court for 3x the deposit as per UK Housing Law. The Agent has stated that they will fight the claim and have retained the services of specialist housing solicitors.

Anyone interested in assisting can contact the tenant at tnhill@london.edu.

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Sunday, October 19, 2008

Twitter update

I wrote a blog entry about twitter when I first signed up. However on reflection perhaps this was a bit negative. Having used twitter for a couple of weeks I feel it is time to give a more positive update.

I have found it really good. I am now putting notifications of all new developments on Landlord-Law onto twitter so anyone who want to know what I am doing can follow me and find out. I know that a few people have set up twitter accounts just so they can do that, which is nice.

However I have also found some good twitter accounts to follow. The most fun must be Stephen Fry. At the time of writing he is filming in Kenya, and us twitterers following get regular updates, including pictures. However perhaps the most interesting are the news accounts – I am now subscribing to the Guardian, Law Tweets, The Times Law, the Times Property, BBC breaking news, UK Parliament and Number 10 Downing Street.

Following twitterers is also a good way of letting them know that you exist, and often they in turn follow you. So, for example, my tweets are now being followed by Stephen Fry, No 10, and the UK Parliament to name but a few. This is initially very flattering until you realise that they are also following lots of others. Stephen Fry for example is following over 7,000 so I doubt whether he reads them all or he would do nothing else!

I have particularly enjoyed the news tweets, and it is nice when my husband tells me a news item to be able to say ‘I already knew that’. Smug but true.

As a lawyer it is also very interesting to be kept informed, on a day to day basis, of what is happening in Parliament. As a result of this I may check out more the development of housing related bills and read the online information in the excellent UK Parliament web-site.

So all in all I would recommend twitter. It allows me in easy way to keep people informed of new Landlord-Law content, and keeps me up to date. A good combination.

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Thursday, October 16, 2008

Poverty is a state of mind. Discuss.

I read on the internet that yesterday was blog action day on poverty. I have rather missed the boat on that, but perhaps I can put in my tuppence ha’penny worth now. And be a bit controversial!

So. Poverty is a state of mind. Is it? If you live in somewhere like Africa during a time of famine, then no, it is real and there is not a lot you can do about it. However if you are lucky enough to live in the first world, then surely there is the opportunity for us all to escape poverty. I would suggest that one of the main thing which prevents this is your state of mind.

Everyone has in them the potential to do well. Everyone. I believe that the two great catalysts for this are belief in yourself and education. Assuming you live in the UK (this is a British blog) education is available to us all. There are evening classes, the open university, or just libraries where you can read books for free or use the internet. If you can’t read, there are classses where you can learn. With education will (hopefully) come belief in yourself and self worth.

Don’t believe negative things that people say about you. For example, many, many women have no ambition in life because they were told repeatedly when they were a child that they were stupid, only fit for marriage, and that their brothers were more important than them. But that’s not true! I believe that everyone has something they are good at or have the potential to be good at. If you think this isn’t true of you, then this just means you haven’t found out yet what that thing is.

Believing in yourself is very important. It carries you forward when other people might drop back. It propels you on to work at something when perhaps it might be easier not to. If you truly believe in yourself, work hard, and are not stupid, then you should eventually get somehwere. (Out of poverty at any rate)

Not being stupid is important though. I don’t think success depends on being very, very clever – just being sensible. And also I think, not being greedy. Many of the problems we have today are down to people being greedy. As we are now finding out.

An example of how important belief is. Two years ago everyone believed in the financial system, so loans were made, and everything ran well. Now people have lost their belief in the system to such an extent that the banks are not even lending money to each other. The difference is a collective state of mind.

So, is poverty a state of mind? Perhaps not, but staying in poverty is, in many cases because of a state of mind. Change the mindset and you have a good chance of changing your life. My recipe for success therefore (moderate success that is, not becoming a millionaire) is education, self belief /self worth, hard work, not being stupid about things, and not being greedy. Try it and see!

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Tuesday, October 14, 2008

Go to work on a poem

When my son Patrick was younger (he is now 12) we often read poetry together, but we hadn’t done any for quite a while. Quite by chance I was looking through a poetry anthology (looking for a reference) recently during that part of the morning before he goes to school, and suggested that we read a bit. I was thrilled when he actually switched off the cartoons and said, yes that would be nice. So this is our new routine.

I tend to be a bit of a re-reader of poetry (rather than reading new stuff), my all time favourites being Ozymandias (Shelley) and The Solitary Reaper (Wordsworth). I am also very fond of my Mothers favourite - Stopping By Woods On A Snowy Evening (Robert Frost). Patrick’s favourite poem seems to be The Snake (D H Lawrence).

I have started reading him the Rime of the Ancient Mariner (Coleridge) which may take us a while.

What shall we read after that?

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Thursday, October 09, 2008

Strutting my Stuff

I have had a few gratifying initiations to speak recently. Last month I spoke at London Landlords Day and also to the Lambeth Landlords forum, which were both very enjoyable.

This month I am due to speak to the CLT 11th Residential Landlord & Tenant Update Conference 2008 on 23 October, where I will be giving a possession proceedings update. CLT courses are always rather on the expensive side, however CLT have agreed to allow my annual members to attend this (and another conference I am doing in February) at subscriber rates, which means a discount of £100. Members can find out more about this in the Landlord-Law special offers section.

Nothing so far in November (I was invited to do the Landlord & Buy to Let Show in Birmingham, but couldn’t face the travel) but on 3 December I will be doing a presentation at the Residential Landlord and Tenant Update, organised by Professional Conferences, called Possession 'Claims For Private Landlords – A Formula For Success'. One of my co-speakers on this conference will be Jan Luba QC so I am quite excited about that. I have wanted to hear him speak for ages, but as I generally have more than enough CPD (and being a bit of a tightwad) I can never justify the cost of attending his courses.

Finally, I was really pleased to be invited to talk about Landlord-Law at the 2009 Legal IT Show on 4 February. My web designer Gill Bishop will be there with me, to answer all those tricky technical questions on things I don’t really understand. So if you are interested in how the site was developed and how it works, please do come along.

If you would like me to speak to your organisation please do get in touch. I always try to speak when invited if I can, but this is subject to my being able to travel to the venue – I live in Norwich and do not drive, so am dependent on the trains. You can find more about the talks that I can offer here.

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Amazon inflation

Having written a book review of Make Cash in a Property Market Crash by Mark Homer and Rob Moore, I went as I usually do, to put a link from my review page to the book on Amazon. I was amazed to see however that the book had a sale price of £105.75. However the book itself, on the desk before me, had a price on the back cover of £16.97.

Either something has gone very wrong, or this is an attempt by the boys (who self published) to ensure that all purchases of the book are via their web-site www.progressiveproperty.co.uk. The boys appear to have few flies on them, so I suspect it is the latter. Needless to say, the web-site provides other (no doubt more expensive) services.

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Wednesday, October 01, 2008

Energy Performance Certificates – have you got yours?

Today is the day that the regulations regarding Energy Performance Certificates (EPCs) come into force.

If you are a landlord you now need to provide an EPC (or a copy of one) to everyone who asks for particulars of your properties, and/or all who view your properties, or at the very latest, by the time the tenancy agreement is signed.

If you are a prospective tenant, you should make sure your landlord gives you an EPC as soon as possible. In todays world of increasing energy prices, gas and electricity bills will be an important part of your outgoings. Properties which are energy efficient could save you a lot of money. It may even be cost effective to pay a bit more rent for them.

But what if the landlord refuses to give it to you, and just laughs at you for asking? Well he does not have to give you one if he thinks that you are not serious about renting the property, or if he has made his mind up not to rent to you (perhaps because he thinks you are a trouble maker for asking for an EPC …).

However if you think he is deliberately flouting the law, you can complain about him to your local Trading Standards Office. They will then contact the landlord, and if they think he is breaking the law they can serve a penalty charge notice, which carries a fine of £200. No doubt once this has happened to a landlord once, he will take care to see it does not happen again!

However there are a few defences available to landlords. One is if they have ordered an EPC at least 14 days ago and despite chasing it up, have not received it yet. The other is if the tenant is so desperate for accommodation that he cannot wait for an EPC to be obtained, provided the landlord serves it on him at the first opportunity.

The general hope, is that having to obtain and serve EPCs in relation to rented property will highlight their efficiency or otherwise (mostly otherwise I suspect for the majority of properties) in their use of energy. Hopefully this will prompt more landlords to do something about it, to make their property more attractive to tenants. Or that tenants will demand that something is done about their expensive to heat properties. Thus helping to improve the carbon footprint of the nation.

Lets hope it does. For more information about energy saving in general see the Energy Savings Trust web-site.

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Tuesday, September 30, 2008

Tenancy Deposit Protection Schemes - news and views

I have seen several news items on the internet recently (eg here) quoting a report from the My Deposits tenancy deposit scheme, which apparently says (I have not been able to find the original report) that tenants are losing out, as 12% of claims are lost by tenants not properly following the terms of their tenancy agreement.

Excuse me, but doesn’t that also mean that 88% of landlords are losing their cases?

Meaning that under this scheme (primarily used by landlords rather than agents), more landlords are found wanting than tenants. Does that not perhaps also indicate that the TDPS was, perhaps, a good thing after all? (Contrary to the squawks of the landlords associations before the schemes were set up, including the NLA which now runs the My Deposits scheme).

Looking around at the schemes web-sites for more news, I see that the Dispute Services scheme web-site states that they are finding that only 2% of cases need adjudication, a lower than anticipated figure. As we do not know the percentage of My Deposits cases which go to arbitration, it is difficult to make much comment. However one could speculate that if there are more disputes in the My Deposits scheme (which is aimed at landlords) than in the Dispute Services scheme (which is aimed at agents), then that would indicate that agents tend on the whole to deal with deposits in a more responsible way than landlords. Needless to say, agents have been saying this for years.

There is also of course the shocking statistic put forward by the DPS of 62% of landlords not protecting the deposit at all (discussed in my post here).

Even though 88% (i.e. most of) of disputes with landlords are won by tenants, I suspect that it is still mostly only the good landlords who have protected their deposits, and that the worst landlords are still getting away with it.

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Wednesday, September 24, 2008

Saving pdf tenancy agreements and forms

The Landlord-Law tenancy agreements are all in pdf format. This has always been the case, for a number of reasons. Most people can access and use pdfs whatever sort of computer they have via the free Adobe Reader (which you can download from www.adobe.co.uk); they are easy (relatively) for me to create; and I can protect the template via the Adobe security system.

However a few landlords have complained that they cannot save the information in the fields. This is of course quite true, but it is nothing to do with me it is down to how the Adobe software works. If you complete a form with form fields using the free reader, when you close or save the document, the information on the 'fields' will be lost. You therefore have to be very careful to ensure that you have printed out sufficient copies of your document before closing.

If you have the Adobe Acrobat software this is not a problem. Acrobat saves the information in the fields, so you can open the document up again later, either to amend the information or print it out again. If you have Adobe Acrobat Pro as I have, you can even change other peoples forms (so long as they have not protected them). However this software is pretty expensive at about £3-400 plus, and most small landlords will not want to pay this. Indeed many of them will be quite happy with just printing the form out, and will not want to store it electronically. After all it is the paper copy with the tenants' signature on, which you will need in court.

However if you do want to save the wording, there is an answer. You need to 'print' the form, using special software. This software creates a new pdf document exactly the same as the document on the screen, so it will include all the information you have typed into the 'fields'. You won’t be able to change anything on this new document though, the fields won’t be there, just the wording you put in them. This could be very useful – for example if you want to email a tenancy agreement over to a tenant.

Adobe has this feature with its own Acrobat software – it used to be called the distiller although it may be called something else now (I am out of touch with what they do). I used to use it all the time (for sending court forms over to clients for them to sign), but then after I had some work done on my computer earlier this year it suddenly started producing a load of squares instead of text. I spoke to my computer people, who did not know how to fix it, but the computer man suggested that instead I use this free software called CutePDF Writer. It worked a treat and I have used it ever since.

So if you are a user of forms with form fields (preferably from the Landlord-Law website!) and want to save a copy of what you have done, but do not want to splash out on the Acrobat program, I would suggest you give it a try.

(Needless to say however, I make no warranties regarding it, and if it trashes your machine I am not liable!! But then I would say that, I am a lawyer.)

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Tenancy deposits – another happy customer

One of the tenants who posted comments to my item on tenancy deposit protection - 62% failure, subsequently bought my kit 2 and was on the point of issuing proceedings. She has now contacted me to say that her landlord has finally caved in and paid back the whole of her deposit. "Which", she said, "is all I ever wanted!"

This landlord had made a deduction for 'cleaning' despite the fact that there had been a clear inventory report, and tried to justify his failure to protect the deposit (which meant that my client could not use the free arbitration service to challenge his deductions) on the basis that his agents should have done it.

Obviously he has now taken some advice and found that his position was a bit shakier than he had thought. So it is worth tenants persisting with claims regarding tenancy deposits. Most landlords do not want to risk a court claim if it is clear that they are in the wrong.

See also my earlier post here.

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Sunday, September 21, 2008

Twitter twitter, tweet tweet …

I have decided to go on to twitter. For those who don’t know what this is, it is one of those social networking sites from America. You sign up and then every now and then you do a tweet. This is a short statement of what you are doing. Like 'I am having a cup of coffee' or 'I have just put the washing into the machine'. Anyone who is interested can sign up to follow your tweets, and find out what you are tweeting about. And you can sign up to follow other peoples tweets.

Put like that it all sounds a bit silly. But I suppose fun. However, there is a bit of marketing in there (being a bit of an entrepreneur I have to think of marketing, it sort of goes with the job, not that I have a job being self employed …).

For example I have discovered this thing called twitter feed. This puts notes of entries of my blog onto my twitter page. So those following my tweets will know when I have blogged. Then I can (and have, you can see it if you look to the left) put a feed from my twitter page onto my blog. So people following my blog can see what I am twittering about. All pleasingly circular and possibly futile.

I haven’t found anyone to follow yet, apart from Nearly Legal. Being of a slightly more mature generation, none of my friends really do that sort of thing. Or at least I have not found any yet, although it is early days. The Nearly Legal tweets are all feeds from the NL web-site, some of which seem to be reports of my postings on my blog. Which of course I already know about, having done them (and of course they are also reported on my twitter page). More circularity.

So what will I twitter about? I will probably use it to tell the world what I am doing on the Landlord-Law site, what new items have been loaded up and the like. I will probably also tweet about work related things I have done, such as talks, conferences etc. And I will probably from time to time just answer the question on the twitter text box, which is 'What are you doing?'. Which at the moment is writing this blog.

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Friday, September 19, 2008

Guest article – a view from the United States, from Kelly Kilpatrick

The Landlord-Law blog being a British blog, generally only looks at housing in England and Wales. However, this article, kindly provided by Kelly Kilpatrick, gives a transatlantic viewpoint. Note that the opinions expressed in this article are those of Kelly and do not necessarily reflect mine. If you are outside England & Wales and would like to write something about housing in your country, please contact me.

Consistency in Policy Regarding Tenant-Landlord Relations

Over the last several years, much has been done in the United Kingdom to reform Housing regulations. First came new laws to license owners of HMOs (Houses in multiple occupation). The reasoning behind this was that the owners of these properties were able to make a great deal of money without having to adhere to any sort of standards in regard to their tenants’ conditions.

Many HMOs were seen to be in poor or shabby condition, not providing the necessary function nor were they providing the amenities that the tenants were paying hard-earned money for. Although some landlords are still unlicensed, much progress has come with these reforms, benefiting both tenant and landlord.

The benefit of licensing an HMO ensures that the property in question meets certain standards and criteria. The tenant benefits by having a place to live that meets legal criteria and is suitable for habitation, making it worth the money spent on rent. The landlord, in turn, fixes up his property to meet the criteria and increases the value of his property as well as the amount of rent he is able to charge.

How does this compare with what is done in the United States? Each state handles its dealings with housing quite differently. What’s done in New York is handled in a completely different way than it is in Texas, for example. Housing authorities exist, but deal primarily with government-subsidized housing projects for those who live beneath the poverty line.

Generally speaking, there is a whole variety of ways tenants and landlords deal with one another in the states. In Texas, for example, the landlord of a rental property can ask for references or may not. He can ask for a deposit, and does not have to prove this deposit is protected, unlike the new tenancy deposit protection laws in the UK require landlords to do. Additionally, tenant and landlord can agree upon the terms themselves or sign a leasing agreement. None of this, however, is required by law.

Conditions in housing in the States also vary quite greatly from locale to locale. Since there is no standard law to which all landlords must adhere, the system is quite flawed, filled with fraud and unsettled disputes, much like it was in the UK before these wide-sweeping reforms were put into place. It is common practice to put shabby materials in a rental property, only to be able to subtract it from a tenant’s lease at the end of the term.

Predatory leasing is not practiced out in the open, but many apartment complexes and leasing companies use the old bait and switch to get people in the door in order to lease them something different. Many times, paperwork gets “lost,” and the terms of the lease have been changed, only to be discovered by the tenant at an inopportune time.

Naturally, most people who wish to spend their money with someone who is reputable and has established guidelines for the leasing agreement, as well as terms by which the deposit is released once the rental term is up.

Although it was a tough transition for many Britons, the HMO licensing act, as well as the tenancy deposit protection legislation has provided safeguards for both tenant and landlord alike. This has ultimately changed the face of tenant-landlord relations into a market that is now more consistent than ever before.


This post was contributed by Kelly Kilpatrick, who writes on the subject of the colleges for criminal justice. She invites your feedback at kellykilpatrick24 at gmail dot com (although please also post feedback on this blog!).

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Wednesday, September 17, 2008

Credit Unions and Local Housing Allowance

As I have written about before, Credit Unions can provide a useful service to tenants who want their Local Housing Allowance payments to go direct to their landlords. Many tenants prefer this, as it prevents them spending the money by mistake and thereby making themselves vulnerable to being evicted. However under the new rules payment direct to landlords will only be done now in exceptional circumstances.

However some credit unions have a service where they arrange for a special bank account to be set up to receive the payment. They will then pay it over to the landlord. As the money is ring fenced and kept separate, there is no danger of it being swallowed up by the tenants overdraft, and their homes will be safe.

I am now compiling a list of credit unions who offer this service on my web-site www.landlordlaw.co.uk which you can see here. If you know of any other credit unions which offer this can you please let me know.

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Wednesday, September 10, 2008

Affordable housing is not affordable

It seems that 'affordable housing', a term much bandied about nowadays, is actually not really affordable at all. Generally the phrase is taken to mean that the property is available at below full market cost or rent. Much is often made of the 'affordable' element of housing in new developments. However are they really affordable for low income families?

In an article in the excellent Property People magazine (available foc to annual members of my online service www.landlordlaw.co.uk) we are told that the term 'affordable' has recently been defined in monetary terms by a team of researchers (led by Peter Ambrose, visiting professor in housing studies at the University of Brighton, working closely with the Zacchaeus 2000 Trust and London Citizens).

The team calculate that the amount affordable for housing for a family of two adults and two children, living in east London, is £135 per week (at the present time). Not surprisingly the researchers also found that the only housing available at this price is local authority or registered social landlord (housing association) housing. Privately-rented housing or low cost home ownership would is completely out of the question.

So affordable is not affordable. Rather like the accelerated possession procedure is not really accelerated. Does anyone have any other similar examples of misleading phrases from government?

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Tuesday, September 09, 2008

Another mortgagee / tenant eviction case

I have another mortgagee evicting innocent tenant case for you. Here I was consulted by the letting agent who had been contacted by the distressed tenant. She had just found out she was being evicted, after having received the normal notice which is served on the occupier of the property in these cases. My client was furious as he felt that the landlord had deceived him, plus he was concerned that this situation would reflect badly on his agency business, although it was no fault of his. The property had apparently been owned by the landlord for some time, had been previously rented out by another agency, and there was nothing to alert him to the mortgage problems, otherwise (he told me) he would never have taken the property on.

His main concern was for the tenant however, and he attended Court where he spoke to the Judge about the case.

Apparently this was a second mortgage, and the mortgage company had not been paid since the tenancy started three months ago. The agent asked the Judge, on behalf of the tenant, if he would grant a stay or make a 56 day order, to allow the tenant to continue to live in the property until the end of her tenancy. The solicitor for the mortgagee asked for a 28 day possession order. After considering matters the Judge decided to make a 28 day order. However the tenant will have in the region of 2 months in the property before any bailiffs appointment, which will allow her time to find somewhere else to live (although apparently she had fallen in love with the property and will be sad to leave).

I suggested to the agent that he might want to review his agency terms and conditions and consider including a clause (assuming there is not one there already) specifically providing for the landlord to warrant that all mortgage payments for the property were fully paid up and would continue to be paid for the period of the tenancy. This would mean that if the landlord did default, he would be in breach of his agency agreement, which might give the agent more freedom of action. Agents might also want to consider calling for proof that the mortgage is paid up when taking on new instructions, so as to avoid a situation such as that in my previous post, where an order for possession had been made before the property was ever let to the tenant.

With the property crisis deepening, we will probably be seeing more and more of these sad cases.

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Monday, September 08, 2008

The Sheffield Case

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


The Residential Landlords Association is pretty pleased with itself, as it has successfully challenged a claim by a tenant, supported by the CAB, against a landlord who was in breach of the tenancy deposit regulations.

As regular readers of this and other housing blogs will know, the regulations appear to say that if a landlord fails to protect a deposit under one of the government authorised schemes, and serve a notice containing prescribed information on their tenant, within 14 days of receiving the deposit, they will be ordered by the court to repay the deposit (or protect it with the custodial scheme) and pay the tenant a fine of three time the amount of the deposit money.

There is a lot of confusion about these regulations, and Judges on the whole appear reluctant to enforce them. There are quite a lot of conflicting decisions coming from the courts. However these are all County Court decisions and are mostly unreported.

The Sheffield case (which you can read about in an RLA press release and in an article in the Solicitors Journal) involved a situation where the deposit had been protected, but the landlords agent had failed to serve the notice. The notice was then served out of time, but the tenant went ahead anyway and issued the proceedings. At first instance the Judge made the award in favour of the tenants. However the landlord, funded by the RLA, appealed the decision. It came before HHJ Bullimore who ruled that the landlords were not in breach and the fine was not payable.

However what was not decided at the hearing was whether the landlord would have been in breach if he had served the notice after the issue of proceedings rather than before. The RLA take the view that the it is the date of the hearing which is important, not the issue of proceedings. They base this view on the notes to the Housing Act 2004. These have this to say about proceedings relating to tenancy deposits:

"503. If at the court hearing the court is satisfied that the landlord has not complied with the initial requirements of a scheme or provided the information required by section 213 (6)(a) or that the deposit is not being safeguarded by an authorised scheme the court must either order the person holding the deposit to repay the deposit to the applicant or pay it into an authorised custodial scheme within 14 days of the order being made. The court must also order the landlord or his agent to pay the applicant an amount equivalent to three times the deposit."

The RLA take the wording 'if at the court hearing' at the start of the paragraph to mean that so long as the requirements are satisfied before the hearing takes place, the landlord will not be penalized. However this is not the only interpretation of these words – it could just be a statement of when the decision will be made by the court - it would after all be highly inappropriate for the Court to make any decision before the hearing!!

My feeling is that if the landlord can get off the hook by complying with the requirements on the day before the court hearing, this is grossly unfair. It will in effect be encouraging landlords only to protect deposits where tenants bring court actions, and will mean that it will be virtually impossible for a tenant ever to succeed in such a claim. However I agree that it is unfair to penalize landlords who act in good faith and who only fail to comply through error (as was the case in the Sheffield case, where the deposit had in fact been protected).

We should also remember, that although this was an appeal, it was not the Court of Appeal, so this decision is not binding on anyone. County Court Judges will probably take note of it, but they do not have to follow it. We really need a test case to be taken up to the Court of Appeal.

But isn’t it ridiculous that a major court case has to take place before the effect of a piece of legislation can be known. Surely there must be a better way?

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Friday, September 05, 2008

London Landlords Day 2008

Thursday was London Landlords day – this is an annual event put on by all the local authorities in London for their landlords. It is currently run on their behalf by a company called Accession.

I was doing a talk called 'Dealing with Tenants Rent Arrears'. This is a new talk, based largely on my new(ish) Rent Arrears Action Plan section on Landlord-Law. It was just going to be about what to do when tenants fall into arrears with a short section on preventative action at the beginning, but then the organizers in their wisdom sent out a flyer saying (without consulting me first) that I was going to tell everyone how to prevent rent arrears arising in the first place! I wish! Still I decided I had better add a few more slides, so that turned into quite a largish and important part of the talk (which I am now thinking of turning into an article).

I think the talk went well. It was in the auditorium which I think seats about 400. There seemed to be quite a lot of people there for my talk, although it was difficult to see much beyond the blinding lights which shone into my eyes whenever I tried to peer out in the audience.

If you were one of those people, thank you for coming along and I hope you enjoyed it. Some of you took up my invitation to let me have your business card or email address so I could send you a pdf of the presentation. These have all been sent out, apart from a few where I could not read the handwriting. So if you have not had it, that is the reason!

I also took the opportunity (while walking to and from the station) to take a few digital photos of houses and flats in the surrounding area which, being Kensington, is posh. Eagle eyed readers of Landlord-Law have probably noticed that it is now festooned with pictures of property. I now take pictures whenever I go anywhere new, much to the irritation of my family ("come on Mum …"). There are some stunning blocks of posh flats on the Kensington side of Olympia, some of which may well be rented out, although I would surprised if any of them are ASTs (where the rent must be under £25,000). Square clips of these will gradually get onto the Landlord-Law site, hopefully giving it a bit of class, and making it a bit more representative, most of the current pictures having been taken in Norwich.

Apart from a jaunt to Lambeth in a couple of weeks to speak at their Local Authority forum, and my normal slot in the CLT October property conference in October, that is it for my speaking this year. At the moment anyway.

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Sunday, August 24, 2008

Responsible Renting - the final report

After having got back from holiday, settled back in, and dealt with the back log, etc, I have finally got around to reading what is the final report from the Law Commission on their housing projects.

The new legal team on Nearly Legal got in ahead of me with a rather depressing report, taking the view that the proposals are basically ineffectual, and the government probably won’t take any notice of the report anyway.

There does seem to be a deafening lack of action by the government on the Law Commissions proposals. In particular the Renting Homes report which has been out for several years now. However there are I suppose a number of excuses for this. For example:

  • The fact that on the whole the private sector is not working too badly so maybe action here is not as necessary as elsewhere in the economy
  • The need for the private rented sector to grow to provide much needed housing and therefore a desire not to 'rock the boat' which may discourage investment, and
  • The need for recent initiatives to bed themselves down.

The last of these is I think particularly important. In the space of a couple of years we have had three major changes, the new Housing Health and Rating System, the HMO licensing scheme and the tenancy deposit scheme. Very shortly there will also be the need for landlords to provide environmental performance certificates. These changes all need time to settle down and for landlords to get used to them, before anything else new is brought in.

For example it has taken Local Authorities some time to get to grips with the new licensing scheme which came into force in April 2006. The first year was taken up with setting up the new schemes from scratch, dealing with the initial rush of registrations, and getting used to things. The second year was building on this, so it is only now that Local Authorities are starting to do more enforcement work. I am pleased to see many more reports of enforcement action for landlords default, and no doubt this will continue. It will probably take quite a few more years (bearing in mind the limited staff resources available to most Local Authorities) before they dig out all the recalcitrant landlords, and are able to say that they have most of the HMO landlords in their area properly licensed.

Likewise with the Tenancy deposit scheme. As set out in my earlier post, it appears that many landlords are still not compliant, so again this will take some time to work through.

In the circumstances I think that the Law Commission are right not to go for major change, but to seek to strengthen the existing initiatives. Their main proposals are:

  • To make landlord accreditation available everywhere rather than in just a few areas, as now
  • To set up a housing standards monitor body to carry out further research, develop a single code of practice, and trial initiatives (such as a scheme for home condition certification)
  • To have all letting agents regulated (Everyone agrees with this! Apart from the cowboy letting agents of course)
  • And to carry out proper evaluation of any new reforms introduced

This all sounds pretty sensible to me. It will lay a foundation for further work, won’t rock the boat too much and discourage new landlords just now (particularly important in the present economic climate), and probably won’t cost too much. The Law Commission also make the point that there is a cost in doing nothing, as poor housing creates costs elsewhere in the system, and therefore (taking a wider view) expenditure in the field of housing could result in significant savings elsewhere in the economy.

There are a number of other reports which have been published recently (which are set out in the Law Commissions paper), plus there is the report commissioned by the government on the private rented sector being undertaken by the University of York which is yet to be published. It may be that once this is out, and now that the commission has completed its housing project and the government is able to look at it as a whole, together with the other reports, government may now decide to do something. For example take steps to bring the Rented Homes Bill onto the statute book.

If you are interested in housing, it is probably worth getting hold of the report – which can be downloaded from the Law Commission web-site here and in the Landlord-Law Law reform section. As usual it is well written and readable (bearing in mind that it is a legal report). I was pleased to see that Landlord-Law was mentioned favorably (page 17), and also interested to see that the responses via the Landlord-Law answer form provided nearly 30% of the total. There is a very interesting appendix where they report on what people responding to the consultation actually said.

Interesting times ahead!

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Sunday, August 03, 2008

EPCs - a step in the right direction

Reading my Observer today, I came across an article on Energy Performance Certificates (EPCs), which as many of you will be aware, will need to be provided by landlords to prospective new tenants after 1 October.

The article however is more than a bit on the negative side, pointing out that landlords have no compulsion to carry out any of the recommendations set out in the EPCs, and that older properties will appear in a bad light not withstanding the fact that landlords may have done all they can. It also claimed that the EPCs could cause friction if tenants found that their bills bore no relation to the examples in the EPC, although one source seemed to think that that most people would not take any notice of them (or no one would ever rent a thatched cottage).

All of this may well be true, but surely the point of EPCs is that it will force people at least momentarily to think about energy efficiency, and will make landlords and tenants aware of what can be done to reduce usage. Surely that has to be a good thing?

We keep reading about how we are going to have to take huge steps to reduce our carbon footprint, but whenever any practical steps are attempted to actually do something about it, this barrage of negativity is put up. EPCs are a waste of time. Low energy light bulbs are not bright enough to see by. Wind turbines are noisy and spoil the view. The Severn Barrage will adversely affect migratory birds and fish. This sort of attitude is not really helpful, bearing in mind the amount of carbon reduction we are going to have to do to have any chance of affecting climate change.

I think that EPCs are an excellent idea. In order to do something about a problem you need information to help you make the correct decision, and this is precisely where the EPCs can help. It is not a perfect solution of course (nothing ever is), but it is a start. Some landlords will probably ignore them, as will some tenants, but I expect many others will take notice of them, and will carry out at least some of the recommendations. That has got to be good.

It is all very well people talking about new buildings and eco towns, but most of us live in older properties, which were built in times when energy efficiency was not a priority. We need to adapt our homes to meet the new situation, and many of us have no idea how to do this. Mandatory EPCs to be provided whenever properties are sold and rented out is at least a start.

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Thursday, July 31, 2008

Tenancy Deposit Protection - 62% failure

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

I read a news items on the Deposit Protection Service website today which reported a survey showing that 62% of private landlords are flouting the tenancy deposit rules, and not protecting their tenants deposits.

If this report is true, and I suspect it probably is, or at least very near the truth, then this means that only letting agents and the better landlords are complying – meaning that those the scheme is really aimed at are ignoring it.

One probable reason for this is that the penalties (in particular the provision for the tenant to be awarded a 'fine' of three times the deposit money) appear in reality to be difficult to enforce. This is partly because the legislation is unclear. Upon careful reading it does not actually say that the fine is automatic if the landlord fails to protect within the time limits (although they do appear to indicate that it might be if the landlord is in breach of his schemes rules - there may be grounds for a test case there).

I am only aware of one case where the tenant succeeded. This was reported in Legal Action Magazine (June 2008) and was where the tenant had actually vacated in response to a section 21 notice served on her. Here the landlord was unable to remedy the position (ie by protecting the deposit out of time) and the Judge reluctantly made the order. However if the tenant had still been in possession, no doubt the landlord would hastily have arranged for the deposit to be protected, and the Judge would then have refused to make the order. The Legal Action report made it clear that the Judge only awarded the fine with reluctance and because the legislation gave him no alternative. (NB I would be very interested to hear of any other cases.)

[Note - since this post was written in July 2008, there have been considerably more cases reported, see the other posts on this blog on tenancy deposits to find them]

What is doubtless happening is that many landlords are taking the view that they will not protect deposits unless tenants threaten court action. However most tenants do not do this. Many will be wholly unaware of the tenancy deposit protection provisions, particularly, for example, if they have only recently come to this country and English is not their first language.

However, even if they are articulate British nationals, most people, even if they have a vague sort of idea that the landlord ought to do something about the deposit, will just assume that either he has done it or that the rules no longer apply. Ordinary people do not go around assuming that their landlords are breaking the law, or threatening court action. Generally people are unfamiliar with the courts and find the very thought of bringing a court claim scary.

One answer I suppose, is to do more to make people aware of the tenancy deposit scheme. Maybe it ought to feature in one of the soaps, there is probably a storyline in there somewhere. The other is to amend the rules to make it clear that if the landlord has not protected the deposit within the time limits, he cannot prevent the tenants succeeding, in a claim for the 'fine', by protecting the deposit out of time.

NB Tenants wanting to bring a claim, should note that there is a do-it-yourself kit (Kit 2) available via my web-site www.landlordlaw.co.uk.

[Note - there a many questions from landlords and tenants in the comments, most of which I have answered (although COMMENTS ON THIS POST ARE NOW CLOSED and no more will be added or answered). Please bear in mind that new cases (and interpretations of the rules) have come along since my answers were given. Note that there are many other more recent posts also on tenancy deposits which you can read via this link.]

[Note 2 - see my post here one year on : Tenancy deposit protction - now only 30% failure]

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Thursday, July 24, 2008

Solicitor sues the court!

There is an interesting news article in the Law Society Gazette today about a solicitor who is so fed up by the appalling service provided by the Central London County court (CLCC) that he is bringing a claim in the High Court! The claim is for a judicial review to force the CLCC to list a landlord and tenant claim for hearing. The writ claims that "neither letters to the court, nor telephone calls, nor even a letter written under the Judicial Review pre-action protocol copied to the Official Solicitor .. have produced any action."

Of course if you know the court system, you will know that sending a letter is often worse than useless. As things are dealt with in strict rotation, you will receive a reply to your letter of complaint, several weeks after the original problem has been resolved, telling you that it has been resolved (which of course you already knew!). The only way to find anything out is to ring the court, where normally (and invariably for the London Courts) you will have to wait in a queue for hours. Most solicitors do not have time for this.

In the Gazette article, the courts service is quoted as saying that the number of complaints to the courts are down. The reason for this is probably that most people, in the legal profession anyway, have given up complaining as they know it will be no use.

The real reason for all the problems in the courts is of course chronic underfunding. Some courts, I understand, cannot afford to use Deputy District Judges at all, which is why cases are taking so long to be dealt with. They cannot afford to pay good wages to their staff, which is why all the good staff are leaving or have left, and those who take their place are mostly unqualified and untrained. Dealing with the listing of cases is a nightmare anyway, what with having to deal with witness availability on both sides, and it becomes impossible where there are not enough Judges to hear the claims. I feel very sorry for County Court managers and am devoutly glad that it is not me having to do it!

Incidentally, I did give some suggestions for county court fundraising in an earlier post.

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Sunday, July 20, 2008

Thank goodness for Geograph

When I upgraded up web-site recently I left reviewing the Local Authority Directory for a later date. This is a very large section of the site, which covers all local authorities giving the LA web-site and contact details for housing related information. As there are now so many pictures in the rest of the site, I decided it would be nice to put a picture for every page showing an aspect of the LA concerned. However there is one problem here. I have not visited every borough in the country.

Having got the upgrade out of the way, the directory needed to be tackled. But what to do about the pictures? It would be a bit expensive to buy them in, and I was unhappy about just lifting them from the internet. However, I did a trawl via Google images to see what I could find. What I found, was Geograph.

This is an amazing site, sponsored by the Ordnance Survey. Its aim is to collect geographically representative photographs and information for every square kilometer of Great Britain and Ireland. The pictures are donated by ordinary people who load them up to the site, where they can be viewed online. What is more, they can be reproduced under the creative commons license on web-sites! Voila, my problem solved!

I have decided that, in accordance with the spirit of the Geograph site, I will only use their images in my 'open access' Local Authority Directory, and will rely on my own and purchased images for the commercial part of the site. There is a fantastic selection of pictures to use, many of them of superb quality! Mind you, artistically speaking, there are also a lot of rubbish quality photos, but good show all the same. It has made the otherwise tedious business of reviewing and updating my directory, fascinating.

So, after doing a few amendments to my template (some of you may have noticed that the amended entries have the H1 orange heading, and the unamended entries still have the blue H3 heading), and checking the housing information from the LA web-site, I can then turn to the more interesting business of looking for a suitable picture on Geograph. This of course has the added bonus that I get to find out where the local authority actually is. This may sound silly, but many authorities have names which give no indication (to the average person) of their location. I now know for example that Allerdale is Cumbria, Broxtowe is in Nottinghamshire, and Calderdale is around Halifax.

It is interesting to see what pictures have been loaded up on geograph. It is clear that many of the photographers are keen railway buffs, as there are a lot of rail tracks, steam engines and the like (I have used one of them for Bury). There are also a lot of very nice pictures of canals and canal boats (eg Charnwood), and of course castles, and countryside.

Some of the pictures I have chosen for the site are city scenes, such as Brent and Bromley, others are of special buildings, such as in Cambridge and Canterbury, or show a well known scene in different weather conditions - Looe in winter, and Exmouth beach before a storm, plus a nice sunset for Brighton. There are also a few statutes, such as in Cannock Chase and (my favourite) Cheltenham. Some, such as Dover and Ely could only have one subject. As you can see, it has been fun.

A condition of using the photos under the creative commons license is that the photographer must be credited, and the fact that it is published under the creative commons license must be acknowledged. I have done this in the alt text, which you can see by hovering your mouse over the image, as well as mentioning it in the notes which will go (eventually) on every directory page.

At the time of writing this blog entry I am part way through the E’s so I have quite a lot of work still to do! Mind you, not all the LA Directory pictures are geograph ones, but most of them are.

As a grateful user of Geograph images, I have loaded up some of my own pictures to the site, and will continue to do so, so I can give back as well as take. I hope that some of you readers will also visit Geograph and find it as interesting as I have.

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