Power down plugs

Our son brought back a number of E-on power down plugs the other day from school, and tonight I decided to fit one to my computer It was not nearly as simple as it appears on the box, in fact it was rather a difficult job.

After bits of my computer got burnt out by a lightining strike a few years ago (I was lucky not to lose my hard drive) I now put everything, including telephone lines, through a big surge protector. So the power down plug has to go into this, with adaptors plugged into the side of it with all the peripherals.

But then there are a number of things which I don't want to power down when I switch the computer off. The telephone answer machine for one. Then I don't want the broadband to go off otherwise I can't use the laptop via our Wi Fi.

So there I was with a torch, groveling on the floor under the desk, trying to work out what all the plugs are. Its a real cats cradle down there. I have tried to sort it out, honest, but its just impossible. Some of the plugs have labels on so I know what they are, but not all, so then you have to follow the flex through the jumble to find out what it is ...

I think I have it sorted now, and I have labelled a few more of the plugs. We are on course to save the planet and get a few pounds off our electricity bill (every little helps).

I suppose I am going to have to deal with the TV system next...

Landlord registration scheme in Scotland not working, says Shelter

According to a report on the Shelter Scotland web-site, one in four rented properties in Scotland is not covered by the Scottish registration scheme, which came into force three years ago today.

It is not all bad news. The report says that the registration scheme has been an impetus to set up landlord training and advice services. However it is of concern that a quarter of Scottish properties still appear to be outside the scheme.

The Shelter report has a number of recommendations, which include more money to Local Authorities and a campaign to raise awareness.

Although we do not have a registration scheme as such in England and Wales, this was recommended by the Rugg Report which was published last year. However this may be kicked into the long grass now, if ministers that the view that results from the Scottish scheme show that more funding will be required than was originally anticipated. Particularly in view of the current financial crisis.

How safe are you from serious flooding??

I was fascinated to see this map indicating which areas will be flooded if the sea rises, showing the incremental increase in land loss at different levels of sea rise (obtained via a report on The Times web-site). The grey areas show the predicted flooded areas according to the flood level selected by a drop down list at the top left.

As I expect you will now do, I immediately checked our street and was relieved to see that even at 14m sea rise we appear to be safe - maybe we can leave purchasing that cottage in the peak district for a bit longer.

Large areas in (as you would expect) the Fens are due to go however (always assuming the sea does in fact rise) together with much of the coast and a large area centered on Goole in the north.

I suspect that insurance for flood damage in the grey areas will soon become prohibitively expensive. If you are considering moving house or buying investment property - read this map carefully!

More tenancy deposit muddle

One of my clients has drawn my attention to an interesting forum discussion on tenancy deposit claims here.

It seems from this that many Judges (although not all) are taking the view that the fine of three times the deposit amount should not be awarded if the landlord refunds the deposit before the court hearing. The reason for this is the wording of the relevant sections. This is s214 (3) and (4) which say (after the first part of the section says what things trigger a claim):

"(3) The court must, as it thinks fit, either—
(a) order the person who appears to the court to be holding the deposit to repay it to the applicant, or
(b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,

within the period of 14 days beginning with the date of the making of the order.

(4) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order."

The argument is that the words ‘must also order’ in (4) means that if the award in (3) is not payable because the landlord has returned the deposit, the award in (4) is not payable either. You can only have both or neither.

If a landlord can escape liability by simply handing over a cheque in the court waiting room, five minutes before the hearing, it makes the penalties look ridiculous.

We urgently need a test case to go to the Court of Appeal so we all know where we stand.

Foxtons on Twitter

Having nothing better to do today, while messing around on the computer I did a twitter search on Foxtons. It was interesting to see what came up.

- There were a large number of moans from discontented tenants and landlords.
- There was the announcement of the Court of Appeal's decision (against Foxtons) in the preliminary point in the case brought by the OFT (see more here).
- Finally (and I had missed this earlier) there were, a couple of days after the CA decision announcement, tweets on the possible deal re-financing Foxtons and writing off their massive debt (see the report here on Reuters)

Could all these be connected?

My own view is that I don't want them to go bust before the case with the OFT has gone through to its conclusion. There are so few cases on the Unfair Terms in Consumer Contracts Regulations, we really need this one. Plus it is important now for the letting industry to know where they stand.

Refunds after Foxtons

One aspect of the Foxtons case which I have not seen mentioned is the impact this will have on the status of past payments.

To remind readers, a claim has been brought against Foxtons by the Office of Fair Trading, for a declaration that some of the terms in their landlord agency agreements are unfair under the Unfair Terms in Consumer Contracts Regulations 1999 (see my post here).

The OFT are objecting to clauses which require landlords to pay commission when tenants renew where Foxtons are not managing the property (and even if the landlord has sold the property), and also pay commission if the property is sold to the tenant where Foxtons pay no part in the sale.

We have had a preliminary Court of Appeal decision in the case which says that the ruling (when we get it) will apply to both current and future contracts. The High Court decision is expected shortly.

What I would like to know (and I am sure a lot of landlords would like to know also) is what then is the status of payments already made by landlords under these agreements. If the OFT win the case, then this will mean that these clauses were always unfair and unenforceable. Can landlords claim a refund?? Or offset payments made, against future commission?

Tenancy Deposit Protection – deposits paid before 7 April 2007

I am obliged once again to the Pain Smith blog for drawing my attention to a new County Court case on the Tenancy Deposit Protection Scheme regulations.

One of the many imponderables of the regulations is whether or not they apply to deposits taken before 7 April 2007, where a new tenancy agreement had been taken after that date. In a County Court decision in Clerkenwell & Shoreditch recently, the Judge took the view (in my opinion, rightly) that when the tenancy is renewed (by the parties signing a new tenancy agreement) the deposit is, in effect, taken again and must therefore be protected from that point.

The blog also raises the spectre of periodic tenancies coming into the same category. This is because of section 5 of the Housing Act 1988 which provides for a new periodic tenancy to arise after the expiry of the fixed term. If the courts (and in particular the Court of Appeal) took this view, it would have very serious implicantions for practically all tenancies where the fixed term ended after 7 April.

My advice to all landlords holding deposits (or rent paid in advance) is that you should arrange to have them deposited as soon as possible (if you have not done so already), whether or not the deposit was paid before 7 April 2007. Only this way can you be (relatively) safe from claims from tenants under the regulations.

Tessa’s Travels – writings on Wordpress

Some of you may have noticed that from time to time I go ‘off topic’. This is because I like writing and do not always want to confine myself to strictly legal matters. However I have decided to hive off some of my more creative writing into a new site, which I have called Tessa’s Travels. This will contain all my writings about trips, holidays and visits to places interesting.

I decided to try a new blog platform for the new blog and have used Wordpress. This is fairly easy to use (particuarly if you have used Blogger before) and there are some very nice templates. I have used ‘Connections’ by Patricia Miller. This allows me to customise the header and has a nice (albeit fairly limited) collection of widgets.

So far using Wordpress seems to be pretty similar to Blogger but I must say that I am impressed with the Wordpress facilities for updating pictures (or media as they call it). I can decide where to put the pictures in the post (in Blogger I have to manualy move them), and there is a facility for me to put a caption and description. I have been putting cropped versions of my digital pictures into my blog for years, but the facilities offered by Wordpress allow me to make them more of a feature in the blog post. Which is very relevant for a travel blog! Although when I say travel, I suspect that most of our wanderings will be in Norfolk for the time being.

So from now on all travel type posts will be on Tessa’s Travels. However I still reserve the right to go off topic here in other respects. This is after all, my blog!

Out of season holiday lets

I did some work for a client today who runs a couple of holiday homes in a converted barn near her country home. She sometimes lets these out on short term lets out of season but is now regretting it, or at least the most recent let. This was to a lady who, having moved in on the understanding that she would have to go in May when the holiday makers start coming, has now decided that she is going to stay on, as indeed is her right technically. Which puts my client in a difficult position.

So my lady came to me to draft up a section 21 notice, which has been done and which will be served on the tenant tomorrow. But it is looking increasingly unlikely that she will move out much before the autumn, so my client is in problems with her holiday customers, some of whom booked up to stay in the holiday cottages over a year ago. She is hoping that they do not sue.

It is very difficult to get over to clients sometimes the difficulty of getting tenants out. "Oh, I told her she could only stay until April" I hear them say about their tenants. But telling them this is meaningless if the tenant is determined to stay, and has the legal right to do so. And a letter politely asking them to leave in 14 days when the holiday makers arrive is almost worse than useless. Any request to a tenant to vacate when their rights have not been followed (i.e. the right to have a proper form of possession notice served on them first) can technically be harassment, which is a criminal offence.

If you have a holiday cottage, it is always a risk letting it to a tenant on an out of season holiday let. If you only let to holiday makers you have the right to move them out at the end of their holiday period without going to court, as holiday lets are one of the exceptions under the Protection from Eviction Act 1977. However if your residential tenant refuses to go, you have to get a court order, and by the time this has been done, even using the so called 'accelerated procedure' the holiday period could be almost over and you will have a lot of disgruntled customers.

In an effort to help things, I have now prepared a special out of season holiday let form, for members of my Landlord-Law service (to be found in my student lets section, as this sort of arrangement often works best with students who do not want to stay in the property over the summer anyway). The agreement specifically states that the property is let as a holiday home at other times of the year and provides for the rent, if the tenant stays on after the end of the fixed term, to go up to the holiday rent rate. This should hopefully discourage tenants from staying on.

Energy efficiency in existing buildings - a new report highlights problems

A new report out from the Economic and Social Research Council and Technology Strategy Board makes interesting reading.

The report states that some 27% of emissions come from domestic buildings - twice the emissions of commercial and public buildings and five times that of industrial buildings.

According to Professor Kevin Lomas, University of Loughborough, virtually all the 24 million existing buildings in the UK would need some attention to reduce their emissions by just 40 per cent. 'To complete the task in 40 years we would need to refurbish an entire city the size of Cambridge every month. If we assume that each intervention would take a team of trained workers two weeks, we would need 23,000 teams of people to work at this rate non-stop for the next 500 months,' he warns.

A long job. Particularly as, it appears, energy saving devices do not always save energy. The report goes on to say that ‘occupants of buildings do not always understand or use these devices in the way their designers intended’.

Oh dear! We obviously have a long way to go!

A new landlord scam

A new landlord scam has been highlighted on the Directgov web-site.

Tenants answering ads on web-sites such as Gumtree, fish4 of Craig's List are being asked to 'prove that they have enough money' by transferring money to a friend or relative.

They are then asked to send a scanned copy of the transaction receipt to the 'landlord' as proof that they have enough money to rent the property. However, the receipt contains enough information for the criminals to collect the money first.

So if you or someone you know is thinking of renting property, watch out for this.

You can read more here.

The National Trust - Charity of the month (April 2009)

Over Easter we have enjoyed two visits to National Trust properties - The Elizabethan House in Great Yarmouth, and Ickworth House in Suffolk. We did not have to pay a penny to visit either of them, as we have a family membership. We tend to holiday in England and whereever we go there are always fabulous places to visit, courtesy of the National Trust.

The National Trust do wonderful work preserving our heritage and countryside, we are very fortunate to have them. It is important that they are supported, so I would urge all of you who are not already members to join up. And you will then have all these wonderful places to go to! The more you visit, the more cost effective your membership will be.

Click here to read about and join the National Trust.

Increased use of set-off by banks

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

***

I am obliged to Sally Chicken to referring me to a blog entry by Martin Lewis of moneysavingexpert.com on banks right of set off. It seems that the banks have the power to transfer money from savings accounts (if they are held by the same organisation) to pay off money due to them by the account holder elsewhere, for example for credit cards or loans. The bank is unlikely to let you know that they are going to do this, to prevent you from moving the money, so it could hit you at any time (although banks are unlikely to do this save as a last resort). However sudden unexpected transfers can cause enormous trouble for the account holder.

It looks as if banks are now doing this more, the Citizens Advice Bureau apparently have seen a 25% increase in this happening.

Probably the answer is to make sure that you keep your savings entirely separately from your main accounts. Although as so many banks and building societies own each other nowadays this may be easier said than done. If you are not sure about this, consider using a Credit Union.

Mr Lewis also points out that if the transfer results in cheques or other payments not being met, this could result in your incurring bank charges (i.e. the bank who caused the problem might be profiting from it!). Which is very unfair. Maybe if this happens to you, a complaint could be made to the Office of Fair Trading?

You can read Martin Lewis’ blog item in full here.

BlogNor09 : A day out in Great Yarmouth

Our son Patrick is on holiday from school, so we decided to take a day off from work and visit Great Yarmouth. I have always been a bit negative about Great Yarmouth, my memories being mainly made up of the depressing building which formerly housed the Great Yarmouth County Court (now closed), and the seaside Pleasure Beach and amusement complex, which is not really my thing.

However I had heard that there was another side to Great Yarmouth so we decided to hunt it out. Following guidance given from helpful leaflets on the railway station we made our way to the historic South Quay where we found the charming Elizabethan House Museum, owned by the National Trust. It is apparently famous as the place where the execution of King Charles 1 was plotted, but leaving that aside, it is the most delightful place and despite being a museum has a very homely feel to it. In fact it is the sort of house I would love to live in, and over lunch (in a very nice local bistro) we worked out what we would do in the various rooms, were it ours.

After lunch we strolled further down and found two delightful houses maintained by English Heritage called the Row Houses. They are where those working in the herring industry used to stay, for example the ‘girls’ who came down from Scotland to clean the fish before processing. The houses were nice if a bit empty of furniture. Looking out of the window it was good to see a gang of kids playing in the street, probably exactly the same as the kids who lived in the museum houses.



The last place we went to was the truly extraordinary Great Yarmouth Pottery. This building, built largely of old scraps from ships, and with a fresh water well in the main room, was once a herring smokehouse and after about 70 years you can still smell the fish. However the building is now a museum and working pottery, filled with the genius of Ernie Childs the potter and artist. You see not only the place where he works together with work in progress (and get a lesson on how they create their mugs) but also an amazing collection of artifacts of marine and fishing life, plus you can watch a short film on the history of the herring industry, while sitting on benches made from the herring girls trunks. Upstairs there is a small cafe (with toilets wallpapered with out of date nautical charts) and large shop where there is a wonderful selection of mugs, ornaments, china clocks, pottery crab dishes, and all sorts of other items, all made by Ernie in his kiln. We bought three mugs to remember it by.

So back to the grindstone tomorrow, but it has been good taking a day out, and I will think differently of Great Yarmouth in future.

OFT preliminary success in Foxtons unfair terms case

As many of you may know, the Office of Fair Trading (OFT) is involved in litigation with Foxtons Ltd (the letting agents) regarding Foxtons’ refusal to agree that certain terms in their agency contracts with landlords are unfair under the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR).

One side issue in the litigation was whether any injunction brought against Foxtons could affect current contracts as well as future ones. The Judge at first instance accepted Foxtons’ argument that any injunction in respect of unfair terms could only apply to future contracts.

However today the Court of Appeal overturned this ruling, confirming the OFT's long-held view that it can take enforcement action under the UTCCRs to protect consumers in relation to both existing and future contracts. The Court of Appeal stated that the UTCCRs aim was to protect consumers, and that they were of the view that traders should not have the freedom to pursue existing customers without restriction, in correspondence or by litigation, in order to enforce contractual terms that have been found to be unfair.

So if you are a landlord with an agency contract with Foxtons, they should not now levy any charges under the disputed clauses on you until after the main action has been heard. This is presumably not going to do Foxtons’ cash flow a lot of good.

The main action, i.e. on whether the terms in question are actually unfair or not under the regs will be dealt with by the High Court in the week commencing 27 April.

To read more, click here.

Complaints against the DPS - the governments response

There has been quite a bit of discussion below about problems a few landlords have had with arbitration's carried out for the DPS, in particular relating to evidence not being passed over to the adjudicator. One of my landlord members had a similar problem, and she wrote to the Department of Communities and Local Government to complain. She has provided me with a copy of the letter and authorised me to reproduce part of it on this blog, as it may be of interest. The relevant parts read as follows:

"I am sorry that you are not happy with the way the DPS handled your complaint. The Tenancy Deposit protection measures introduced in the Housing Act 2004 are designed to safeguard the interests of both landlords and tenants, ensuring good practice in deposit handling, so that when a tenant pays a deposit and is entitled to get it back, he or she can be assured that this will happen. As you are aware, each scheme offers a free alternative dispute resolution service (ADR) to deal with disputes over the return of the deposit. It is also open to the landlord or tenant to choose to have the dispute dealt with through the Courts. Where both the landlord and tenant agree to using the ADR service the decision made by the adjudicator is binding and there is no right of appeal.

I should explain that the DPS is a government authorised scheme but is not run by the government. We are not able to deal with formal complaints at Communities and Local Government, although we monitor the scheme closely and are always interested to hear if particular issues arise. Each provider submits Key Performance indicators to the Department every month showing how they are performing against targets, and penalties are imposed for poor performance. Regular meetings are also held with each of the scheme providers to discuss the type of performance related issues you have raised.

We are satisfied that the DPS takes any complaints very seriously and will investigate thoroughly through their formal complaints procedure."

It may be therefore that if you have a ‘performance related issue’ in connection with an arbitration, a letter to the Department of Communities and Local Government may help to resolve it for future users, although it will not help with your own case.