Malcolm reversed

Landlords the length and breadth of the country will (or should) be celebrating the House of Lords decision in the leading case of Lewisham v. Malcolm, (discussed by me previously here) and the reversal of the previous Court of Appeal decision. This denied Lewisham a possession order on the basis that Mr Malcolm’s subletting of his flat (which in normal cases would have entitled Lewisham to an order for possession without question) was as a result of his disability (schizophrenia), and that their claim for possession was therefore discriminatory.

This raised the worrying (for landlords) possibility of disabled tenants being unevictable, no matter how serious their rent arrears (for example). Or, as Mr Bernstein found, unevitctable under the section 21 procedure, if they are disabled, even if the landlord did not know this.

However it now looks as if these fears are groundless (other than for poor old Mr Bernstein who should have had his possession order months ago) and possession orders will in future only be denied to landlords in cases of obvious discrimination.

Lawyers are less happy with the decision, which they say messes up established employment law principles.

The Malcolm decision is a very long one and although I have tried to read it, it is past 11.00pm (at which time I start to fade ...) and it is difficult to stop my eyes from glazing over. No doubt an authoritative analysis will be posted in due course by Nearly Legal. So I will leave it to him, and go to bed.

Councils get tough on HMO regulation evaders

I have just seen two reports of landlords breaching the HMO regulations being fined.

In Redditch, Nadeem Asghar, (23), pleaded guilty to operating a house in multiple occupation and was fined £2,000 and ordered to pay £1,071 costs.

In Loughborough Mohammed Tayaib Ali Chowdhury (age not given in the report) was fined a swinging £10,000 and £1,015 costs. His property, a three-story Victorian terrace in Toothill Road, Loughborough, was occupied as an HMO by nine adults and two children, without a license.

There seems quite a gap between the two awards, so either the Loughborough Magistrates are considerably harsher than those in Redditch, or there is something we have not been told.

Still, defaulting HMO landlords beware – it could be you next!

More tenants evicted by landlords mortgagees

I have been contacted by another tenant today, who is being evicted by her landlords mortgage company. Her situation is not quite as bad as that of my clients in my previous post, as no order for possession has been made yet (the hearing is in July). However she was not at all happy to receive the notice of proceedings from the mortgagees solicitors two months into an eighteen month fixed term! Particularly as she had just paid to have broadband connected.

Once again I question the role of the letting agents here. In this case the tenant has found out that the landlord has probably been in arrears of rent for quite a long period, it could even be a year. As well as this it seems that the landlord failed to obtain consent for the letting from his head lessor. If a tenant can find these things out, why can’t the agent?

Is it right for a letting agent to be able to let a property which is obviously vulnerable to repossession, and after it is let (and their commission paid – taken from the tenants rent of course), not be liable in any way when the property is repossessed? Should they not be obliged to carry out at least some rudimentary checking?

The agents in this particular case are a large high profile London firm of estate and letting agents. When a tenant is renting a property from a professional agency such as this, they do tend to assume that they will at least be able to live in the property without being evicted two months into the term!

It is arguable that in such a situation, particularly as it is a business/consumer situation, there should be some sort of tortuous liability on the agent to ensure that the properties on their list are not vulnerable to repossession, at least during the initial fixed term.

Incidentally, the Civil Justice Council has recently carried out a consultation on a proposed new mortgage repossession pre action protocol (the consultation period finished on 23 May) but this does not appear to consider the situation of innocent tenants.