Dr Ian Gibson MP

Leaving landlord and tenant law to one side for a moment, as a Norwich Citizen, I would like to make a statement in support of Dr Ian Gibson. He is, I know, a hardworking and conscientious constituency MP, who has stood up for what he believed in, and is one of the very few qualified scientists in the house.

When I read in the paper about the 'Star Chamber' hearing which concluded that he should be de-selected, I was reminded of the many cases I hear (when taking statements with my husband for his employment tribunal practice) where an employee is dismissed after a 'disciplinary hearing', which is not really a hearing because the deciders have already made their minds up. However employees can bring a claim to tribunal. Dr Gibson has no redress.

He is reported as saying that he has broken no rules and still has not been told exactly what he has done wrong. From what I have read, it seems that he is being criticised for allowing his daughter and her partner to live rent free in his flat, and then selling it to them at an undervalue. However

• No one is denying that Dr Gibson lived in the flat for about three days in most weeks
  
• His daughter was apparently not permitted under the 'rules' to pay him rent or contribute towards the utility bills (why not?)
  
• It was sensible (prudent even) for security reasons, to have someone else living in the flat, so it was not empty when Dr Gibson was away

As for selling the flat at an undervalue, only Dr Gibson lost out financially here. Sure the daughter had a windfall, but so have many other people in all sorts of circumstances. I can think of far more reprehensible things to do than providing for your family.

I think it is enormously unfair that Dr Gibson has been singled out in this way, when other MPs have not. I would suggest it is the rules which are a fault rather than Dr Gibson. If what he did was so wrong, why did the fees office not tell him so? There is a nasty suspicion as well, that he was thrown to the wolves because he has not been afraid to speak his mind against the government in the past.

I am also concerned that everyone seems to be quite happy for their to be a 'Star Chamber' at all. To quote Wikipedia, the Star Chamber in the sixteenth century became "a symbol of the misuse and abuse of power by the English monarchy and courts". Is this what we want in England today?

I am concerned that most people appear to consider this sort of thing acceptable, and are happy to condone trial by newspaper and dismissal of a decent hard working MP by an process which appears to be unconstitutional and against natural justice.

Landlord licensing and agent regulation – impact assessments now published

Those interested in the governments consultation paper issued in response to the Rugg Report, will also be interested in the impact assessments which have now been published by the Department for Communities ands Local Government .

Impact assessment for regulation of Landlords
This is available to download from here. This shows that there are two options under consideration. The first is full licensing, which would involve a five year fee of £500 per property. The second is a web based national register. This will involve an annual fee of £30-50 per landlord.

Although both options are discussed in the report, it is clear that it is just the second option, the web based register, which is being seriously considered. All landlords will be required to sign up to this, although landlords who are members of existing organisations (presumably landlord associations) will be passported into the register. In return for signing up to the register, landlords will be offered benefits such as free documents e.g. tenancy agreements, and property advertising.

The report analysis is on the basis of 1 million landlords with 3 million properties.

Impact assessment for regulation of Agents
This is available for download from here. There are only two options discussed in the report, doing nothing and mandatory regulation. Regulation is the favoured option.

The report states that there are around 8,000 letting agents, only half of which are members of a professional organisation (such as ARLA or RICS). The large number of unregulated agents is undesirable as they are not compelled to have any client money protection or undergo any training on property management. Apparently some 60% of landlords use letting agents to manage their properties, so many landlords are at risk of poor practice by unregulated agents.

The report estimates that existing members of professional organisations will be passported into the scheme. Others will have to pay a joining fee in the region of £180 pa, and all agents will then have to pay an annual fee in the region of £120 pa.

Implementation of this (which has been widely called for across the industry) will protect both landlords and tenants from fund misappropriation, and will provide a more 'level playing field' for those agents who are currently operating properly (with the associated costs which this involves).

Note that I have set up an answer form for those wishing to respond to the governments consultation paper here. This now provides links to these two impact assessments.

mytenancydeposit.co.uk - not a recognised tenancy deposit company

I, and probably many landlords and other property professionals, have received notifications from both The Deposit Protection Service and MyDeposits warning that the web-site mytenancydeposit.co.uk is not that of a government authorised tenancy deposit scheme.

Landlords and agents should beware. If you protect your deposit with this company, this will not constitute compliance with the tenancy deposit regulations. You will remain vulnerable to a court claim from your tenants for the 'fine' of three times the tenancy deposit amount.

There are only three companies you can protect your deposit with:

1. The Deposit Protection Service - www.depositprotection.com
   
2. My Deposits - www.mydeposits,co.uk, and
   
3. Tenancy Deposit Scheme (from the Dispute Service) - www.thedisputeservice.co.uk

Information on the My Tenancy Deposits site show that it is owned by a company called MTD Secure Limited. A search at Companys House shows that this company was incorporated on 28 January 2009,. The company has offices in Newhall Street, Compton in Birmingham.

Landlords may become liable for tenants' water bills

According to a report in the Times today, the government is considering a report from Ofwat recommending that landlords should be made liable for water bills, if these are not paid by departing tenants,

The reason for this is the high level of unpaid bills suffered by water companies. They are often a low priority for payment as they are not allowed to disconnect. For example the Time reports that Northumbrian Water has increased its provision for bad debt from domestic users by £2 million to £30 million.

Recovery of unpaid bills is difficult. "Quite often by the time we have found out who the tenants are, they have gone," Mr Cuthbert, MD of Northumbrian Water said. "We are talking to the Government about what help they can give us here. One proposal would be to make the landlord liable."

However landlords should not panic immediately as the measure would require primary legislation. A draft report is expected to be published in the next few weeks with a final report later in the year.

Letting to tenants with pets

The Dogs Trust estimate that in the region of 40% of us in the UK have pets. Probably mostly dogs, cats and caged birds. As about 12-15% of the population live in rented accommodation it is fair to say that there must be many potential tenants looking for accommodation who have pets.

However many landlords routinely reject all pets as a matter of course, worried about the potential damage they could do to the property and its contents, and virtually all tenancy agreements have clauses prohibiting pets as standard.

However a report available on the Dogs Trust 'lets with pets' web-site challenges this viewpoint and suggests that many landlords are foolish to reject out of hand many people who would, along with their pets, prove to be excellent tenants. A survey carried out by the Dogs Trust also shows that

• 78% of pet owners reported that they had experienced difficulties finding privately rented accommodation that would allow their pets
  
• 54% of pet owners were never able to find a suitable property that accepted pets, and
  
• 8% of people had to rehome their pet

A landlord therefore who is willing to allow pets in his property will find that he has a much larger pool of potential tenants and is likely to let his property quicker, and to tenants who will probably stay for longer, meaning fewer voids.

In order to assist landlords, at Landlord-Law we have produced a new tenancy agreement specifically for landlords letting to tenants with pets. It contains special 'pets' clauses in the terms and conditions and fields for details of the pets, their vet, and someone who will look after them in case of emergency. You can read about it in the article 'Letting to tenants with pets' which you can download from here.

91% of tenants suceed at arbitration say My Deposits

A news report out by My Deposits shows that 91% of tenants get their money back at tenancy deposit arbitrations. The report states:

"Figures from mydeposits.co.uk show 91 per cent of dispute cases settled by the scheme's independent adjudication service found in favour of the tenant. The average amount in dispute was £733, which is significantly lower than the average deposit of £1,052.

In only nine per cent of cases landlords and letting agents were able to withhold the full deposit."

However the report goes on to say that only a small proportion of deposits, 0.35%, actually go to arbitration. This could mean though that it is still largely only the good landlords who are protecting deposits, and that the bad landlords, the ones who will habitually make unjustified deductions, are still refusing to comply.

It would be interesting if the Deposit Protection Service could follow up their survey reported in July 2008 (and discussed by me here) that 62% of landlords were failing to protect.

The Law Bazaar

If you are looking for a lawyer, there is a new option available now. This is the Law Bazaar (reported by the Guardian here). Set up by solicitor Costas Andrea, fed up with the huge sums made by claims companies just for referring work to solicitors, this allows clients and lawyers to make contact direct.

Lawyers and clients (from any country - it is an international site) can both register on the site free of charge. Both appear as anonymous, although lawyers are rated on the basis of client feedback. Clients can load up details of their case and then lawyers and client can discuss the case before the client chooses a firm to act. At that stage the lawyer pays a modest fee to the site (£50 or £150 for PI cases).

As it is free of charge, all lawyers should register. There is nothing to lose and they may gain some lucrative work.

Landlord Licensing - tell the government your views!

The Government recently published their response to the Rugg Review, which was reported by me here. In particular the report proposed mandatory licensing for landlords and regulation for all letting agents. The report is also a consultation.

As before with important consultations, I have prepared an online answerform to allow people to give their views easily.

On my form, I have reproduced the whole of the government paper (less the footnotes and appendix) and have provided form fields in context so you can read the report and write your response there and then. Your answers can then be sent to us easily by clicking the submit button at the end. We will forward them on to the relevant department.

After the end of the consultation period (7 August) I will be preparing a consolidated report of all answers (annonomised) so people can see what the general consensus is.

You will find the online form here.

NLA/SPLA case dismissed

No sooner do I write a post saying that a case looks to continue than I get an email telling me it has been dismissed!

A news release on the NLA web-site here states:

"On Thursday 21 May, His Honour Judge Pelling QC dismissed the legal challenges to the merger. He also ordered those who brought the action to pay the NLA’s costs."

A full written judgement will follow in due course, and will no doubt be made available via the NLA web-site.

SPLA/NLA merger dispute continues

Landlords and property professionals will have been depressed to read an article by Oliver Romain in the excellent Landlord & Buy to Let Magazine, that the legal action brought challenging the merger of the Southern Private Landlords Association (formerly the National Federation of Residential Landlords) with the National Landlords Association, announced last year (and reported in this blog here) it still continuing.

Apparently at a court hearing in March the Judge asked for members to be questioned about their views. Of the 5,200 SPLA members, apparently 1,720 responded, of which 892 said that they did not support the merger, with a similar number supporting the legal challenge. I make that just over 17% of the total membership, which is not what I would really have called a majority.

However it is a majority of those voting, and Mr Stimpson (who is leading the challenge) claims that this justifies his action. A spokesman for the NLA on the other hand apparently claims that large numbers of SPLA are voting with their feet by moving over to the NLA. A specialist marketing company employed to find out members views, apparently found that most of them were sick and tired of the dispute and wanted nothing to do with it.

It is really sad that those leading landlord associations are embroiled in this sort of dispute, when there are so many important landlord issues for them to deal with. Oliver Romain's article concludes that the parties appear unlikely to settle, so it looks as if a contested court hearing may take place. As the costs of this are estimated at some £800,000, landlords may well question whether this is really in their best interests.

Landlords out of pocket for deposits - DPS may be best after all!

A report published in The Times today highlights the growing problem of landlords having to pay up for deposits, when agents go bust.

Under the two 'insurance based' tenancy deposit schemes (MyDeposits and the Tenancy Deposit Scheme run by the Dispute Service) if the agent deals with the deposit on behalf of the landlord, the agent holds the deposit money. If the agent becomes insolvent, this does not affect the tenant (other than perhaps a delay in getting paid) as the insurance company pays out.

However it will have a serious effect on the landlord. This is because the deposit schemes are entitled to recoup their losses by claiming the money back from the landlord, on tbe basis that the landlord is the employer of the failed agent.

The Times report states that "hundreds of letting agents have ceased trading in recent months" and goes on to report that "MyDeposits has received 279 notifications of a letting agent going into liquidation and being unable to return the deposit". In the majority, if not all of those cases, the landlord will have had to pay.

The problem is more likley to occur with MyDeposits as the Dispute Service are now refusing to accept agents who are not members of ARLA, RICS or a similar professional body.

Landlords letting through non regulated agents should therefore think carefully before allowing the agent to manage the deposit unless it is protected by the Deposit Protection Service where the deposit money is actually lodged with the company so there is no possibility of it being lost.

Pain Smith on Foxtons

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

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I just wanted to draw your attention to an excellent post from the Pain Smith blog here on the Foxtons case. This points out that nothing is decided yet, and nothing may be finally decided for quite some time if the case goes to the Court of Appeal.

Pain Smith also point out that this case will just be about Foxton's terms and conditions. Although it will, clearly, have a huge impact on what other firms can and cannot do in future, there may be circumstances where a clause criticised in the context of the Foxtons case may be allowable in different circumstances.

This is the most unsatisfactory aspects of the Unfair Terms in Consumer Contracts Regulations - until something has gone to court no-one really knows where they are! It is like walking on shifting sands.

CAB report highlights unfair charges to tenants by letting agents

An item on the BBC news site has alerted me to a new report from the Citizens Advice Bureau on fees to tenants by letting agents. The report comments that many letting agents are regularly making unjustified charges to tenants for "tasks that are no more than the routine business of letting and managing a property" (and sometimes for items they are also charging to landlords). For example, the report states:

"Charges included a non-returnable holding deposit, a deposit administration charge, a reference check charge, an administration fee, a check-in inventory charge, a check-out inventory charge, and a tenancy renewal fee."

Of these, I would comment that one inventory charge is fair if the landlord pays the other (ie one paying check in and the other paying check out) provided the fees are reasonable and reflect the actual cost of the work. Reference checks are probably also reasonable, if they reflect the actual cost of referencing. However, the holding deposit should be credited to the rent or damage deposit if the tenant rents the property, and 'renewal fees' have long been considered unfair by many.

The CAB is right to draw attention to these fees. Often tenants feel that they have no choice but to pay as they fear that otherwise they will lose their home. Many agents act responsibly and only charge for what is fair, but there are a large number who do not. The CAB report comments "charges often bear little or no relation to the cost of the work involved and in some cases letting agents appear to make them up as they go along."

The report also mentions the change in attitude of many agents towards tenants before and after they have signed up. This is no doubt true in many cases - to get a flavour of what tenants think of agents you only need to do a search on 'Foxtons' in twitter.

Hopefully things will improve if the agent licensing plans put forward by the government in their recent report go ahead.

What I can't understand about the MP's expense accounts scandal is this ..

Why didn't they see it coming? Surely it must have been obvious after the Freedom of Information Act was passed in 2000 that something like this was going to happen sometime? Surely anyone with any sense would have known that the press were going to probe at some stage, and would have taken care to be careful. It was only a matter of time.

It is also a shame that the good MPs, the ones who only claimed what was right, are caught up with this too. I hope they sort it out soon.

The phrase 'Augean Stables' comes to mind.

A lady at lunch

Had a great time with Graham and Karen on Radio Norfolk today - they invited me to be one of their Friday ‘ladies at lunch’ which was huge fun.

My co ladies were Pam Brooks aka Kate Hardy (in black in the photo), novelist; and Sara Lock (in turquoise), all round good egg who has been on cash in the attic (and who went to school with the fabulous Joanna Lumley). I am the one in blue, with Karen in green. Graham was heavily outnumbered by us girls.

You can listen to the program again (for a limited period) here.

Graham and Karen are having a week on the Wensum next week which sounds fun. I hope the weather is good for them.

Susskind - the end of lawyers?

I have just listened to an interesting webcast of an interview of Richard Susskind here. Susskind is promoting his new book, The End of Lawyers?: Rethinking the nature of legal services, having written several groundbreaking books on the use of IT and technology in the internet in the past.

Susskind covers quite a wide range of legal IT related topics in the interview, but it is some of the comments at the end which are most worrying (for lawyers). Both he and his interviewer make the point that lawyers are not (on the whole) natural innovators and tend to be resistant to new developments, particularly if they are making a good income as they are.

However he believes (and I have to say that I agree with him) that technology and the internet will have huge implications for the profession, and it is worrying that the Law Society and the government are planning new rules and regulations for the future of the profession, without really taking these properly into account.

For example one thing he mentioned was shared knowledge on forums and how this may develop in the future. In fact however this is happening right now, as there are a number of consumer forums where people exchange information about legal matters, for example this forum here on tenancy deposits. Shared knowledge of this kind could well reduce the need to use qualified lawyers in the future.

The conclusion, more or less, was that there will always be a place for some lawyers and the subject is an interesting discipline in itself, but that the profession has probably passed its high point and things will never be the same again. He also made the point that new lawyers are entering an uncertain profession and many law students should be prepared to use their law degree for something other than practising as a lawyer.

The Rugg Report – the governments response

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

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The government published a consultation paper yesterday in response to the recent Rugg Report and the other various reports that have been published over the past few years.

Supporters of the Law Commissions long project and reports, will be pleased to see that this is acknowledged and referred to in the response which confirms that many of the Law Commission’s ideas are being considered. However it also states that they do not think the time is right for the extensive changes in tenure proposed in the Renting Homes report.

No doubt further comments on the paper will be made later, but on a preliminary reading, the following points stood out for me.

The report acknowledges that most tenants are satisfied with their landlords and that the majority of landlords provide a good service. The main thrust of the proposals therefore are intended to support good landlords, improve standards generally across the sector, and drive out the persistent bad landlords.

National Register
The paper proposes a national register for landlords. This will be 'light touch' and mostly web based. Landlords will need to register their name and address, and details of their property holdings, and pay a small fee annually. They would then be given a number which would have to be used in all landlord related paperwork such as tenancy agreements, tax forms, benefit claims, and court proceedings etc. The register would be run by an independent organisation.

The benefits of the register for government is that it would give them accurate statistics, and they could use it as a way of disseminating information to landlords (such as regarding energy efficiency standards). It would presumably also (although this is not specifically stated) help the revenue with tax collection.

Landlords who fail to comply with the regulatory regime or where there are 'persistent abuses' will be removed from the register, be unable to let out property by themselves, and will probably be ineligible to receive housing benefit.

Tenancy agreements
They are considering introducing mandatory tenancy agreements, as suggested by the Law Commission, and are seeking views on how this should best be implemented.

Rent Limit
They propose increasing the limit above which tenancies are not longer ASTs to £100,000 pa (currently it is £25,000 pa)

Regulation of letting agents
The paper concludes that voluntary regulation of the letting agency sector has not worked, and propose full compulsory regulation of all letting agents. This would include

• entry requirements
  
• a code of practice
  
• business and consumer protection (e.g. indemnity insurance, client protection schemes, complaints procedures)
  
• monitoring of compliance by an independent body
  
• enforcement powers and sanctions

Dispute resolution, Courts, etc
The Law Commissions proposals put forward in their Proportionate Dispute Resolution paper are being considered in conjunction with the Ministry of Justice.

Encouragement of investment
They are considering setting up a Private Rented Sector Initiate to encourage institutions to invest on a large scale and in the long term

Support for tenants being evicted by landlords mortgagees
They will be looking to change the law to ensure that tenants in this position are given at least two months notice to find alternative accommodation.

Tax changes
Significantly the report simply says that the treasury is aware of changes proposed (e.g. by the Rugg Report) to the tax system to support the private rented section, and will keep them under review. Which presumably means that nothing will happen.

Local Authorities
They discuss how local authorities can better engage with local landlords, perhaps by dealing with them through their small business unit rather than via environmental health, and by giving better training to staff. Many local authorities are of course already doing this sort of thing.

Accreditation
They would also like to build on the various current accreditation schemes for landlords, perhaps with a view to developing a national standard.

There is a lot more in the report (which runs to 37 pages) but the above gives a flavour of what it says.

The full report can be found here

The paper is also a consultation and various questions are asked at various stages for feedback on particular points. These should be submitted to the department by Friday 7 August. Note that I hope to be able to set up one of my online answer forms for this shortly, so watch this space.

Four more cases on possession proceedings

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

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There are four interesting cases in the most recent edition of Legal Action Magazine on proceedings for possession under section 21 and the provisions of the Housing Act 2004, so I hasten to share them with you. They all cover different points. Although they are all County Court decisions and therefore not binding on other Judges, they show how Judges are thinking and interpreting the statute.

Universal Estates v. Tiensia
Croydon CC, 23 Feb 2009
In this case the deposit was paid in instalments. The tenant, Ms Tiensia, fell into arrears and the landlord served a s8 notice based on rent arrears. Ms Tiensia counterclaimed for the 3 x deposit award on the basis that the deposit was unprotected. The landlord then protected the deposit with MyDeposits and faxed the certificate to Ms T. However the Judge found that this was not enough. The landlord had failed to comply with the initial requirements of MyDeposits terms and conditions, and was thus in breach of s213(1) and (4) and s214(1)(a) of the Housing Act 2004. Order for £7K to Ms T.

I was particularly pleased (and perhaps a little smug) to see this decision, as the point about the failure to comply with the schemes own rules, is something I remember writing about some time ago, but has not so far as I am aware been mentioned by anyone else until now.

Seghier v. Rollings
Bow CC, 6 Mar 2009
Here the landlord, Ms Rollings, only protected the deposit shortly before the hearing and handed the certificate to the tenant at court. However she did not fully comply with the notice requirements, and for example had not handed over the MyDeposits leaflet. Here the Judge 'distinguished' (legal phraseology meaning the two cases are not the same) the Sheffield case of Harvey .v Bamforth (where the landlord won) because here the landlord had not fully complied with s214(6)(a). Order in favour of the tenant.

Beal v. McCartney
Plymouth CC, 12 Mar 2009
Poor old Mr Beal was evicted by his landlords mortgage company due to his landlords mortgage arrears. As he had not been given any information about his deposit by his landlord, he sued for the fine of 3 x the deposit sum. He succeeded and was also awarded £500 damages for the eviction (legal terminology is for 'breach of quiet enjoyment'). However the fact that he was evicted by his landlords mortgage company indicates that his landlord is in probably in dire financial problems, so this may be a bit of a phyrric victory.

Raco Ltd v. Roberts
Central London CC, 6 Mar 2009
Unlike the others in this post, this case is about failure to obtain an HMO license. A good sub heading for this case would be 'if at first you don't suceed, try, try and try again, and still fail'!

Here the landlord had served two section 21 notices and issued two separate sets of proceedings. Mr Roberts, the tenant, defended the first on the basis that the s21 notice had been served before the tenancy was signed and at a time when the property was unlicensed, and the second set of proceedings just on the basis that the property was unlicensed. The two cases were joined and dealt with together. The landlord then served a further section 21 notice (presumably by this time having obtained a license) and applied to the court to have the proceedings amended to rely on this notice rather than the earlier two. However the Judge refused the application as a 1996 Court of Appeal decision (Lower Street Properties v. Jones) has held that the s21 notice must expire before the issue of proceedings. (Presumably Raco Ltd have now changed their lawyers and started a new set of proceedings, but we are not told about this).

In conclusion
All of these cases were resolved in favour of the tenant. This just goes to show how careful landlords need to be to follow the rules properly. If you don’t, you risk not only losing your claim for possession, but also being made to pay your tenants legal costs. Which, if they were in receipt of legal aid, could be expensive.

Starlight Children's Foundation - Charity of the Month (May 2009)

The Starlight Children's Foundation aims to brighten the lives of seriously and terminally ill children by granting their wishes and providing hospital entertainment to help take their minds off the pain, fear and isolation of their illness.

It is also the charity being supported by employment barrister Daniel Bartlett for his ten year anniverary fundraising campaign. Daniel is to be congratulated in raising over £10,000 for the charity. You can read more here.

LHA direct payment e-petition

After my earlier post giving details of an e-petition against the governments licensing plans, I have now learned of another one here requesting Local Housing Allowance be paid direct to landlords.

Petitions seem to be taking off - it is a shame therefore that the government is no longer supporting them, according to this report on the parliament.uk blog.

NLA calls for changes in housing benefit/local housing allowance rules

The National Landlords Association (NLA) has recently started a campaign to change the rules for the payment of housing benefit/local housing allowance (LHA). As has been described elsewhere in this blog, LHA cannot normally be paid direct to the landlord in the way that housing benefit was. The NLA consider that this is unfair, particularly in view of the fact that LHA is paid direct to social landlords and local authority landlords.

LHA can be paid direct in limited circumstances, these are (1) if the tenant is deemed to be ‘vulnerable’ or if (2) he is in arrears of rent of over 8 weeks. However benefit offices are not acting consistently in interpreting these rules. For example many are refusing to accept that rent can be in arrears if it is payable in advance (benefit is paid in arrears) which means it can be well over three months before benefit starts to be paid direct to landlords where tenants are in default. Landlords are finding this unacceptable.

The NLA have recently carried out a survey of their members which shows that over 52% say they are less likely to take on tenants in receipt of benefit and 59% say that they are concerned about rent arrears or local authority maladministration.

They are asking for the following:

• an ‘automatic trigger’ for direct payment to landlords after one month’s rent arrears (as opposed to two months/8 weeks as now)
  
• Better local authority administration of LHA
  
• Better determination of the vulnerability of tenants by local authorities, with clear guidelines being laid down
  
• the creation of local authority links with local deposit guarantee schemes so each new LHA application is accompanied by a deposit guarantee bond.

You can read more about this on the NLA website here.

e-petition against landlord licensing

I have been informed that an e petition to No 10 has now been posted by Mark Horne of Property Hawk. The reasons on the petition are

Mandatory licensing would:
1. Undermine the private property rights of a citizen to do what they choose with their property including letting it to a willing tenant.
2. Not drive up standards in the residential letting sector as suggested.
3. Would duplicate existing methods of control and therefore is unnecessary.
4. Restrict the supply of rental accommodation.
5. Be a tax on the rental sector.
6. Be costly to implement and an added financial burden to the citizen.

If you are against licensing you will find the petition here.
Mind you personally I think licensing is probably a good idea (but then I am a solicitor and not a landlord). I provide details of the e-petion in the interests of democracy! There is no reason why those who feel licensing is important should not post their own petition.

Fast Facts on new licensing plans

The Times in an article today has listed six 'fast facts' on the new licensing plans which are expected to be announced formally in a new Green Paper shortly. They are as follows:

• A new licence-to-let which is expected to cost landlords £50
  
• An independent body which will mediate in disputes between landlords and tenants
  
• A government agency which will find new homes for affected tenants
  
• Landlords who flout basic accommodation standards to be banning from letting
  
• A national watchdog to monitor all lettings agents
  
• A lettings register which will name all agents who have signed up to ARLA industry guidelines

It will be interesting to see how correct these are when the green paper is finally published,

New plans for landlords

Two reports in the press this morning on landlord regulation. The Times reports that ministers are considering introducing licensing (as recommended last year by the Rugg Report). They anticipate that the costs will be covered by the licensing fee, provisionally put at £50, plus there is also a suggestion that the scheme will help the revenue track tax evasion.

The BBC site reports that The Association of Residential Letting Agents (ARLA) is introducing a licensing scheme for its UK members and a code of practice for landlords.

In my previous post on the Scottish scheme (commenting on problems highlighted by Shelter), I suggested that funding implications might put the government off introducing any new schemes England and Wales at this time. However if the scheme assists with the collection of tax, this puts a different light on things.

We are told to expect a Green Paper shortly.

Advice for landlords whose tenants are not paying rent

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

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A report on the BBC web-site today states that more tenants are in arrears of rent now than since the late 1980's. Which is not surprising given the almost daily announcements of redundancies.

Here is a bit of advice for landlords:

• Keep on top of things and contact tenants as soon as they fall into arrears
  
• Be sympathetic to tenants who respond to you, and consider reducing the rent if they are geninely in financial difficulties through no fault of their own
  
• If tenants are on housing benefit/Local Housing Allowance, tell the benefit office - they should make payment direct to you if the arrears reach 8 weeks
  
• However if tenants have not responded when the arrears reach 2 months worth, serve a section 8 notice and consider issuing proceedings for possession. Remember possession proceedings can take months.

For more information see my article 'Dealing with rent arrears - some different approaches' which you can download and read free of charge in this section of my LandlordLaw web-site.

Further guidance and help is available in my Rent Arrears Action Plan.

Good for the Ghurkhas!

If I may go 'off topic' for a moment, I would like to say how pleased I am at the MPs recent vote which hopefully will result in Ghurkha veterans being allowed to live in this country.

Maybe it will cost a bit. However if we can chuck billions at bankers who have almost brought the worlds financial system crashing down, surely we can spare a bit for some respected soldiers who have put their lives on the line for this country?

And good for Joanna Lumley for all the work she has done for this cause.

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.

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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.

HMO landlords water rates shock

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

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A long standing Landlord-Law member has written to me informing me of a potential problem for HMO landlords with water rates. He tells me that

"I recently had a revised water bill from Thames Water back-dated six-years totalling nearly £8.000 for an eight-studio HMO that I own. Previously, I had paid the water rates based on the rateable value of the building (£circa £450.00 pa) as there is only one water supply that enters the property. I'm not sure whether there has been a change of law, but Thames Water (and, I believe, other water companies) are now billing each studio separately. Since I do not have a meter on the property, they have based the charge on the average water consumption of other (separately rateable) studios in the area. Since my studios are almost certainly a lot smaller and have single occupancy, I am planning on having a water meter installed as soon as possible."

Fortunately my informant managed to get the invoice changed so it was only backdated to October 2008, however he wanted me to know the situation so I could warn other HMO landlords of the possible shock in store for them.

Tenants - the forgotten victims of repossession

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

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I was delighted to read a report that a campaign is being launched to help tenants who get evicted through no fault of their own, because their buy-to-let landlords have not kept up their mortgage payments. You can read more about it on the Citizens Advice Bureau site here.

Long term LandlordLaw Blog readers may remember several cases reported here in the past, in particular the distressing case of two tenants whose landlord rented their property to them after the possession order had been made, which you can read here.

Although in many cases the reason the landlord is unable to pay his mortgage is becuase the tenant has failed to pay his rent, there are many situations where this is not the case, and where the tenants are entirely innocent.

At present the court have limited powers to protect innocent tenants. The organisations are calling for a change in the law which would mean courts would have the power to defer the possession to allow the tenant to find other suitable accommodation. This is only fair.

If you agree with this, I would suggest you contact your MP and ask him/her to support the campaign. You can do this via the Write to Your MP web-site.

In the meantime here is some advice for tenants:

- Always open mail addressed 'To the Occupier'. This may include notice of any possession hearings.
- If you're thinking of moving into a new property, make sure the landlord has permission from the lender to rent it out. Otherwise, the lender does not have to recognise the tenancy at all.
- If you were already living in the premises at the time when the mortgage was taken out, the lender may take you on as a tenant and allow you to pay rent to them directly. If you think you may be in this position, contact a Citizens Advice Bureau or Shelter.
- Try to find out as much you can about your prospective landlord and his/her mortgage status before taking up a tenancy - although in practice this isn't always very easy.

Datchelor reunion

Had a brilliant re-union with old school friends on Saturday, hosted by Suzanne at the fabulous Teatro Club in Shaftsbury Avenue. So nice to see people again after such a long time.

Also of course fond memories of those high fashion garments we so loved to wear...

Essential Legal Points for Landlords talk at the Landlord&Buy-to-Let Show

It was very nice to see people at the Landlord&Buy-to-Let Show on Friday. Thank you to everyone who attended, it was great to see so many of you there, and I am sorry some of you had to stand. I am also sorry that the noise of the conference was a bit intrusive - I hope you all managed to hear me.

I have now sent off to everyone who asked, a pdf of my powerpoint and added those who asked to go on my newsletter (note if you forgot to ask you can do this here). There were inevitably a few where I could not read the handwriting and there were bouncebacks, so if you did not receive your copy please do email and I will send it out (and to anyone else who wants it).

Liability of 'let only' agents for the deposit under the TDPS

I have been meaning to comment on the post on the Pain Smith blog recently on tenancy deposits and 'let only' agents. However Francis Davey on the Nearly Legal blog has beaten me to it.

It only remains therefore for me to refer you to the original posting by Pain Smith, and the subsequent posting on Nearly Legal.

As I said in my comment on the Nearly Legal blog, my view has always been that an agent is responsible for ensuring that the deposit is dealt with properly if the deposit is paid to him (irrespective of whether he is acting on a let only basis or a management basis). The fact that the deposit was passed on to the landlord is no defence.

I would advise all agents to either protect the deposit themselves or only pass it over to the Landlord if they are really certain that it will be protected. Or of course they could ask the tenant to pay the deposit direct to the landlord.

It will be interesting to see what conclusion the court come to. Keep us informed David!

takeITon seminar

I attended an excellent seminar yesterday, which was provided free of charge by takeITon, a company offering free business IT support and advice to businesses in the East of England.

I sat next to Penny Lindop who designs cards and stantionary and who also runs a blog. She sells to shops but also sells online so do take a look at her website.

I also met Sally Clearly who is setting up an exciting new online community The Virtual Business Club. Sally is a very experienced marketeer and she told me that the club will have lots of new features to help members spot the Next Big Thing. She is offering a free years membership to the first 500 members (so she can populate the site) so I would suggest you get there quick!

Well thats enough blogging, I now have to review all my metatagsa and site links and implement a few google adwords!

More bonkers Legal Services Commission rules

I had a conversation recently with a worker at a legal 'not for profit' organisation (who wishes to remain anonymous) who is in despair about their Housing Court Desk Duty Scheme. She had been using student volunteers in addition to the qualified helpers. The student volunteers were all law students from a local college. They were really enthusiastic, worked hard, and the scheme was going well. However she has now been told that, for schemes funded by the LSC, all advisors must either be qualified solicitors or be doing 12 hours per week housing law case work. So she can’t use the students any more.

I assume that the LSC have made this stipulation so that they can assure 'quality'. However the effect of this is to make the scheme very difficult to run. Although they are generally willing to help, in the present financial climate local solicitors will need to spend most of their time on fee earning work, to enable their firm to stay solvent. They are not going to have a lot of free time available for voluntary work, bearing in mind that there are very few solicitors nowadays who specialise in this area of work anyway.

It is ridiculous to say that only solicitors and those carrying heavy housing law caseloads can give advice to people facing repossession. With proper training, anyone sensible who understand the legal system can do it. I would have thought that law students were eminently suitable for this work, plus it will enable them to gain experience which will help them in their careers, and may even encourage them to specialise in the area of housing and welfare work in the future.

It reminds me of when I used to do volunteer work for a local legal charity. I was donating my time entirely free of charge but the Legal Services Commission's expectations were wholly unreasonable. For example they demanded that I physically attend the office for a certain amount of time each week (which would take up more time that I was able to give, bearing in mind that I also needed to earn a living) whether this was actually needed or not. This is one of the main reasons why I resigned.

It seems that not only have the LSC virtually destroyed the network of legal aid solicitors that previously existed, they are also (still) making life difficult for volunteer services.

Red Nose Avatars - only £1

If you are on facebook, myspace, twitter etc, do go and get yourself a red nose for your avatar for Comic Relief (our Charity of the Month). It is only £1. Plus there are three fantastic red noses to choose from. You get them at www.digitalrednose.com.

The tweetometer

As you will know from my previous posts and from the side bar of this blog, I am a twitterer. One of the twitterers I follow is TweetMinster who tweet about MPs on twitter.

They have now developed this really cool app called a tweetometer. You can see it in my sidebar. Two words go in the two boxes at the top and when you click go it works out which is the most popular on twitter that day.

The example given on the TweetMinster site is Gordon Brown and David Cameron. However you can put anything. I have put as my default, landlord and tenant (although I expect I will change this from time to time). But, you can click into the tweetometer and type your own words. I just checked out Dalek and Cyberman (Dalek won as you would expect).

TweetMinster is also a very good and serious service facilitating communication between MPs and their constituents, and worth checking out.

Comic Relief - Charity of the month (March 2009)

With Red Nose Day this coming Friday (13th - hopefully unlucky for none) it would be difficult to choose any charity other than Comic Relief for this months Charity of the Month. We are not doing anything particularly silly here (apart from the usual) but will be donating on the day. They promise that every pound raised from the public will go to good causes.

Follow the links for more information on Red Nose Day and to donate.

Complaints about the DPS

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

Despite the comments made in my previous post on complaints about the DPS, I have received a few further emails and blog comments outlining further problems with the DPS service. In one of my comments to this post, I mention the complaints procedure which is referred to in the FAQ on the DPS web-site.

However my DPS contact has drawn my attention to the fact that this complaints procedure cannot be used in respect of the arbitration process itself. Some of the problems that people have contacted me about have been regarding the arbitration decision, in particular evidence not being passed on to the arbitrator. My DPS contact told me

"The complaints process does not apply to the ADR decision these are binding on both parties and there is no appeal process. They are made aware of this when they accept the Terms and Conditions. If we receive a complaint about the decision we do check to make sure all the evidence has been included. Often when a case is lost and the decision has been received citing lack of evidence, we receive a claim saying the evidence was sent - there will always be one unhappy party in every case.

The complaints process can be used to complain about the service they have received but not to appeal any ADR decision."

It is an important aspect of the arbitration process that decisions must be accepted as final by both parties. This prevents the process becoming long winded and allows people to move on.

However I can understand the indignation of a landlord or tenant who finds that his case has clearly been decided wrongly. If the decision is one which no reasonable arbitrator could have come to, is it right that it should be allowed to stand? But then on the other hand, how do we know that this is that one in a thousand case which really has been decided wholly unreasonably? Almost every losing party in a case considers that his case was wrongly decided! If one appeal or case re-hearing is allowed, then everyone will want it, and the advantage of the finality of arbitration will be lost.

I think probably the answer is that if the decision does not go your way, there is not much you can do about it, at least as far as changing the decision is concerned. In life one does sometimes come across injustices which we just have to put up with. You just have to do your best to make sure it does not happen again.

However I would suggest that you do at least write and complain about it, and tell the DPS exactly what happened. If a large number of complaints are received on a particular topic this may prompt a change of procedure which could prevent the same problem happening again.

Does anyone else have any ideas or comments on this? Also, the complaints I have received have also been about the DPS service - are people happy with the service from the other two providers?

Mary Datchelor Girls School

If you were at Mary Datchelor in the year that did its A levels in 1975 (particuarly if you were in Miss Traize class in the fifth year) can you get in touch, as a reunion is planned for 21 March 2009.

It looks as if the building has now been re-developed into flats - here are some depressing images.

Gas Regs change

I am obliged to the Pain Smith blog for letting me know me about a forthcoming change in the Gas Regs, which will come into effect on 1 April. From then on, gas inspections need to be done by installers registered with the Gas Safe Register operated by Capita. This is because CORGIs contract with the HSE has come to an end.

You will find a leaflet about it here.

Talk to CNS

I did a talk to the sixth form at my son's school today, CNS (City of Norwich School). The main points I wanted to get over were that they should be careful about rushing into renting a property, and that they should be careful who they choose to rent with. And of course that they have rights and should take advice if they are worried about something.

Some of them seemed to be listening although there was the inevitable undercurrent of muttering and rustling at the back (it was a large roomful). There was one intelligent question and a boy at the front taking notes, so hopefully some of the points will stick with them at least. And really that is all that is needed. To hear something and have it at the back of your mind, so that if one day you have a problem, you will think 'Didn't that woman who spoke to us at school say something about that? Lets look it up.'

It is an exciting time of life, your last year at school, with all of your life in the 'real world' ahead of you. If you were there, I do wish you all the very best.