Energy Efficiency Certificates

The government has announced details of the energy efficiency certificates that will need to be included in Home Information Packs ("HIPS"). It is believed that private residential landlords will in due course be required to provide tenants with a similar certificate. See this page regarding this (you will need to scroll down to the bottom).

An interesting opinion report dated 24 June 2006 on the Energy Efficiency Partnership for Homes website states that the training and qualification for surveyors falls short of the standards required. There is clearly quite a lot of work to be done on the whole energy efficiency front before scheme is in a satisfactory format.

Empty homes regulations – threat or blessing?

Local Authorities are shortly to get new powers to take over empty properties and rent them out to homeless families. Some press reports have greeted this with outrage, as the regulations apparently state that properties in good condition which have only been lying empty for six months can be repossessed.

For example a report in the Telegraph on 17 June points out that bereaved families may be at risk if family homes are not sold within six months, which may be a bit difficult as it can sometimes take much longer than this to sort out probate and the administration of a deceased persons estate. A more alarmist report in the Daily Mail has the headline "Homes of the dead to be seized by the state". Tory housing spokesman Michael Gove is even claiming (according to the Mail) that it could be "a stealthy new form of inheritance tax".

However in fact it is most unlikely that the bereaved will visit their family home seven months after father died, to find the local authority has broken in and let it to homeless families – a scenario implied by the various reports in the press. Indeed the Telegraph report itself states towards the bottom "A spokesman for Ms Kelly denied that the powers would be used to seize homes inherited by relatives. If the issue was not resolved in discussion with the council, he said, it would go to a tribunal".

But is the local authority taking over a property really such a bad thing for property owners? For example in Tower Hamlets, they are handing out grants in an effort to bring substandard empty properties back into use. In Walthamstow some flats have already been offered to tenants on the Councils waiting list after refurbishment funded largely by the authority.

Some people I have spoken to consider that the new rules will not be much used, as Local Authorities will not want the expense and hassle of taking over and running someone else’s property. Clearly though not all Local Authorities will think this way, as can be seen from another report from Swindon, Wiltshire.

We shall have to wait and see whether the regulations turn out to be a threat to bereaved families or a blessing to impecunious property owners.

All change at the ODPM

I wish government departments would make up their mind what they want to call themselves. Until Mr Prescott’s shenanigans with his secretary, the department with responsibility for housing was the department of the Office Deputy Prime Minister – odpm for short. And the web-site where we found all the stuff was www.odpm.gov.uk.

However now its Ruth Kelly, so the department (or the bit of it that she is in charge of) has changed its name to the Department for Communities and Local Government, and the web-site changed to www.dclg.gov.uk. So, all references to this on my web-site had to be changed so people following them were not at risk of getting the dreaded ‘page not found’ page. Which took a while, because I have a lot of links (many of them only put in quite recently, when I updated the HMO section). However, now I look at the site and see that they have another new website url, www.communities.gov.uk.

Why can’t they just stick to the one name and the one web-address? Its such a lot of bother for us all keeping up with it. And I dread to think how many man hours have been and will be wasted at the dear old DCLG itself, dealing with these changes, and how much stationary will be redundant because it has the wrong name on it. Such a lot of waste and bother. So unnecessary. So annoying. So typical of government.

Registration in Scotland

All those English landlords moaning about licensing should be grateful that they are not in Scotland. All Scottish landlords now need to register both as a landlord and per property (£55 and £11 per property for a three year period).

A report in Residential Landlord states that some 57,000 have registered over 105,000 properties netting over £2.7 million registration fees.

If you are a Scottish landlord and have not yet registered, you can do so here

The cost benefits of building green

Continuing the theme of my earlier entry, there seems to be a contradiction between the conclusions of the Green Value report, which found that the increased costs of green buildings was not as significant as was generally thought, and the conclusions in an article in The Times on Barratts EcoSmart show village in Chorley, Lancashire, where Barratts are trying out environmentally friendly features in normal style houses to see whether they really are worthwhile – the conclusion the article reaches in that they are probably a bit too expensive to be cost effective.

Looking in a bit more detail at the Green Value report (which is worth reading, or at least skimming – to see the full report follow the pdf link in the box at the top right of the green value page linked above) most of the case studies are larger developments, mostly for commercial rather than residential use. There are just two residential developments – one is a large residential apartment development in New York (in fact adjoining the site of the former World Trade Centre) and the other is a owner occupied housing co-operative in British Columbia. However the New York apartments apparently have proved very popular, the indoor air quality in particular proving to be a big marketing plus.

Indeed the general view in the report, is that you cannot just look at strict financial benefits of building green – there are other benefits which are perhaps more difficult to quantify. The commercial developments all reported that the green buildings were pleasanter to work in and resulted in greater worker productivity. Plus a company whose buildings are environmentally friendly has a marketing edge, as it is perceived more favourably by the public.

Going back to the Barratts scheme, I see that none of the houses are actually going to be lived in (at least during the 18 months testing period), which is a shame. The scientists will be analyzing the merits and drawbacks of the various technologies used in the properties on the basis of the general public visiting them. Presumably after this though they will be put up for sale. It will be interesting to see how quickly they are sold, and whether people really will be willing to pay that bit extra for the green features. I suspect that many people will, perhaps more than Barratt and their accountants imagine.

The future is green

I read an interesting article by Karen Dugdale in the Ob today (sadly it is not online so I cannot link to it), about energy efficiency for rented properties. The conventional view is that it is not worth a landlord bothering to make a property eco friendly, as tenants will get all the benefit and landlords will not be able to recover their investment. However apparently a recent independent study, Green Value , has found that environmental enhancements can add significant value to rental properties by reducing operating and maintenance costs, attracting tenants quickly and reducing turnover while commanding higher rents. AND saving the planet!

Most UK landlords though still feel that the financial incentives are not sufficient, despite the Landlords Energy Saving Allowance having been extended in the recent budget.

However, Urban Splash who specialize in environmentally friendly brownfield developments, told Karen Dugdale that they have found green rentals to be very popular. Having had enquires about their properties from people who could not afford to buy them, they decided to hold some back for rentals, and have found this so popular that they are considering adding more.

If you are interested in environmentally friendly property, website Green Moves which specializes in advertising green properties for sale may be able to assist. Advice can also be obtained from the Bioregional Development Group.

Who's afraid of the TDS?

Rummaging in Google's news pages recently I came upon an interesting report which indicates that landlords are so worried about the pending tenancy deposit scheme (being introduced under the Housing Act 2004) that they have decided to continue to pay letting agents to manage their properties for them, rather than go it alone. The article concludes that this is an unforseen effect of the new law, and suggests that the increasing regulation and bureaucracy may result in landlords leaving the private rented sector altogether. Not something I suspect that the government will want.

Of course this trend might also be because landlords think that they will have to use an agent. A recent questioner to my Q&A page on my website seemed to think that she would only be able to comply with the new laws by using an agency. I am sure that this is a view which many agents would like to encourage! However it is not correct - the new schemes will have to be available for both landlords letting in person and those letting via agents.

In fact a little bird has told me that this might be causing problems, in that none of the companies who have tendered to run the scheme have satisfied the government's requirements in this respect, which means that it is possible that they may not be able to introduce the scheme in October, as intended, after all. However 1 October is still clearly given as the start date on the ODPM website, so we will have to see what happens.

The end of the tolerated trespasser?

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

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For a long time housing law has been bedeviled by a concept known as 'the tolerated trespasser' which occurs when a tenant who has had a suspended possession order made against him, breaches the terms of the order but is allowed to stay in occupation.

A suspended possession order is where a possession order is made but the landlord is not allowed to send in the bailiffs to recover physical possession of the property so long as the tenant complies with conditions set out in the court order - normally relating to the payment of the rent arrears by instalments. Often the terms of the order are breached by something which was not the tenants fault, such a failure to pay rent which is solely due to non payment of housing benefit. He then becomes a 'tolerated trespasser'.

This 'tolerated trespasser' situation has caused problems, as many tenants (generally tenants of registered social landlords such as council tenants) have continued to live in the properties months and years after the order was made, but because their tenancy officially been ended when the order was breached they are no longer proper tenants. This means for example that they cannot enforce repairing covenants against their landlords.

However in a recent case, the Court of Appeal has suggested a new form of court order to solve this problem. In this new form of order, it will state that a possession order has been made but will provide for the date for possession to be fixed by the court at a later stage, upon application by the claimant if the defendant breaches the terms of the order. In the meantime the defendant keeps his tenancy, and the 'tolerated trespasser' problems will not arise.

Its nice to see the Court of Appeal sorting things out. Let us hope that the new order is taken up as they suggest, and that it works.

The case (which is actually two cases heard together) is reported on BAILII and is called Bristol City Council v. Hassan/Bristol City Council v. Glastonbury.

More trouble for ASBO landlord

I have received in the post a copy of an article about ASBO landlord Steven Dickens, mentioned in my earlier post, who it appears is in more trouble. Fresh charges are mentioned in the article, which all appear to involve obtaining property by deception from the Department of Work and Pensions and the Conwy Council Borough Council. The sum mentioned is £45,931.48.

It looks like a family business as his parents and partner are to be charged also.

Mr Dickens asked the court if he could have his passport back (handed to police as part of his bail conditions) so he could have a family holiday abroad, but this was refused.

The full trial is due to be heard next year. No doubt I will be kept informed by my Welsh correspondent, to which many thanks.

In the meantime, from another online article here it looks as if Mr Dickens (or rather his court appointed receiver) is selling his property stock. Sale proceeds are in the region of two million pounds, which will be nice for Mr Dickens' creditors. No doubt the DWP and Conwy Council will be looking to the sale proceeds for recompense, should the claims against Dickens be proved.

Waste paper

I have just recieved a delivery of six individual envelopes all with advertising literature from a well known legal training organisation. It was some sort of special delivery as a little man came in a van to deliver them to me. All of the six envelopes and their contents have gone straight into the bin.

This is such a waste of resources. I can't help feeling that, with the availability of electronic communication which wastes less trees, there should be some sort of limit on this sort of paper advertising.

Possession claims stats

For those who are interested in such things, the Department of Constitutional Affairs have published the stats for possession proceedings which can be viewed here.

To see the figures you have to scroll right down to the end of the page. The stats are divided into mortgage claims and landlord possession claims, the latter including both social and private landlords.

The figues for this quarter are slightly up on last year, but less than the previous years. It looks as if the trend over all is downwards, as the total figures for 2001 claims made was 175,908 whereas the total claims for last year were 144,674. For some reason the number of claims always seems to be higher in the first quarter of the year. It seems fairly constant that only about 67% of claims get converted into possession orders (including suspended orders).

Sad but true

I met a friend the other day, who was absolutely incandescent about the fact that her (new) solicitors had asked her to provide proof of her identity. "What about my opponent?" she kept asking, "They don’t ask her to prove who she is!"

I explained to her that most solicitors are obliged to do this now, we don’t particularly want to (all that extra administration) but if we innocently act for a client who is not who he says he is, and who is involved in money laundering, we can be jailed along with the client. She was unmoved by the prospect of innocent solicitors being jailed because of the shenanigans of their clients, but exclaimed "Oh what an untrusting world it is nowadays!". Well that’s true enough.

Another unfair decision against a landlord

I did an advice today for a lady who had brought proceedings for possession (acting in person) on the basis of over £12,000 in arrears of rent. However the Judge put back the date for possession for over seven weeks (during which periode of time it is virtually certain that the tenant will pay no rent) because the daughter of the tenant was due to take her 'O' levels and he did not want her to be disturbed.

I have seen a lot of unreasonable decisions, but I have to say that this takes the biscuit! Why should my client be responsible (effectively) for the cost of housing her tenants daugher during her 'O' levels? Bearing in mind that even once the date for possession arrives, it will then take up to six weeks or more to actually obtain a bailiffs appointment.

No wonder the Law Commission in their Renting Homes consultation (see last post) received so many complaints from landlords about Judges use of their discretion in possession claims!

They propose to solve the problem, by the way, by making the exercise of a Judge's discretion statutorily structured. This means that the Judge will have a checklist of questions they must answer before coming to a decision. Let us hope (if it happens) that it helps them come to more sensible decisions.

Mind you, if my lady had used our repossession service instead of going alone, we would have made sure that the claim form was drafted properly, which would have ensured that the very most time the Judge could have given would have been six weeks - and I expect my barrister would have made sure that the period was actually much less than this. But if landlords will act in person ....

Renting homes - the final report

For the past four years, the Law Commission has been working on a project called 'Renting Homes' which is looking at housing law in England and Wales with a view to making it less complex.

Two consultation papers (with over 400 responses) and over 70 public visits later, they have now produced a final report and draft 'Renting Homes' bill. So what does it say?

Here are some of their recommendations:

• Replacing the 13 or so types of agreement with just two - one for social landlords and one for private landlords
  
• Making tenancy agreements (or rather occupation agreements as they will be used for licenses as well as tenancies) more comprehensive, including all relevant law. They will be much longer than most current agreements, and most of their content will be prescribed (ie will be compulsory)
  
• Landlords will be under a legal duty to to provide an agreement in the proper form - if they don't occupiers will be legally entitled to withhold up to two months rent, plus landlords will not be able to evict them for six months after the agreement is finally provided.
  
• It will be possible to add a new occupier to an agreement without having to draft up a new one
  
• One of joint occupiers will be able to end their liability under an agreement without affecting the other occupiers
  
• There will be a new procedure landlords will be able to use if they think tenants have abandoned the property, to recover possession without having to get a court order
  

However it is a long report so if you are interested you should download a copy and read it for yourself. It can be found at the Law Commission web-site and via Landlord-Law at www.law-reform.co.uk.

If the draft bill becomes law it will be a major piece of legislation affecting millions of people - some 1/3 of all property in England and Wales is rented, approximatly 10% being with private landlords.

The only current types of tenancy which (as the bill is currently drafted) will not be affected, will be protected/secure tenants under the Rent Act 1977 and tenancies under the Rent (Agriculture) Act.

Why not tell the Law Commission what you think about the courts?

Further to my earlier post on tbe Law Commission's issues paper and consultation on housing dispute resolution, I have now placed an answerform online to allow members of the public to respond easily.

So rather than having to read a ginormous paper, and then painfully draft your anwers with paper and pen, all you need to do it go to www.law-reform.co.uk, and read and answer the form online. If you want to check what the issues paper says about one of the questions, the form helpfully gives the relevant section numbers so you can look it up. Needless to say you will find the issues paper online both on my web-site and on the Law Commission's web-site.

If you are at all unhappy about the way housing disputes are currently dealt with in this country, do use the form and let your views be known. The Law Commission cannot take you views into account if they do not know what they are. This is democrary in action - use it!

A new case on section 21 notices

We have recently had a fairly sensible case on section 21 notices, where the Court of Appeal has squashed an attempt by a tenant to wriggle out of getting evicted by claiming that the notice was defective.

This was a situation where the fixed term of the tenancy had expired and the landlord was having to rely on section 21(4) of the Housing Act 1988. The notice used the words "Possession is required of the premises which you hold as tenant(s) at the end of the period of your tenancy which will end after expiry of two months from the service upon you of this notice.". Section 21(4) contains the following wording:

"that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section".

At first instance an order for possession was made, but the tenant then sought legal advice and decided to run the argument that the wording in the notice did not comply with the notice in the statute, claiming that the possession order should therefore be set aside. The argument went that the phrase "at the end of the tenancy" meant "on the last day" so that the notice did not satisfy section 21.

Happily however (for the landlord) the Court of Appeal did not agree and found that the notice did comply sufficiently. The court held that the judge had been entitled to conclude that the notice complied with section 21(4)(a) since it was clear that, applying a normal use of language, the phrase "at the end of a tenancy" in a notice under section 21 meant "after the end of the tenancy". It did not mean at the split second after the tenancy came to an end, but any time thereafter.

This follows other Court of Appeal decisions in the past on notices, where so long as the sense of the notice is clear, the court have not allowed the notice to be defeated by minor technical quibbles. For those who are interested in such things, the name of the case is Nottingham Hill Housing Trust v. Roomus. I have not been able to find a report of this online so am unable to give a link.

New Law Commission consultation paper on housing dispute resolution

The Law Commission have recently published a consultation paper on the resolution of housing disputes, giving their proposals for reform, with a deadline for responses of 11 July. For more information see this page.

They have also set up an online forum, hosted by the University of Kent, for discussions on their proposals and on the topic of housing dispute resolution generally, which you can see here.

I have stuck my neck out and put up two posts. If you hold strong views on the resolution of housing disputes go and have a look, and put up your own post. This is your opportunity to put your ideas to those who may be able to do something about it. Don't waste it.

Musings on the tenancy deposit scheme

I have heard a rumour that the proposed tenancy deposit scheme (being brought in pursuant to the Housing Act 2004) may not be introduced in October 2006 as has been widely anticipated, but may be delayed until next year, probably next April. This may not be true of course, but many landlords will feel very relieved if there is a delay, beset as they are with the new HMO and other new regulations which came into force recently.

I do hope though that when the new scheme does come into force it will be light on paperwork. I can remember when the pilot scheme was being run by the Independent Housing Ombudsman, how all landlords I spoke to were horrifed by the massive (in their opinion) amount of paperwork involved - and remember that many landlords judge a tenancy agreement not by its contents but but by how short it is! In fact I suspect that the paperwork was a major contributing factor to the low takeup of the pilot scheme.

I was speaking to one of my landlord clients only the other day and she was saying how concerned they are about the new scheme and whether it will be worth their while to take a damage deposit at all, when they were going to have to deal with (she told me) so much extra administration. I suspect that many landlords will either assume that the scheme operators will be anti landlord or be put off by the paperwork, and will stop taking a deposit at all and just increase the rent overall to compensate them for losses which would normally be covered by a damage deposit.

It will be unfortunate if this happens, as an increased rent is not refundable to the tenant at the end of the term in the same way that a deposit is, so good and bad tenants are punished alike. And although technically a tenant can challenge the rent in the first six weeks by referring it to the Rent Assessment Panel, in practice very few tenants do this. It is possible therefore that a scheme brought in to benefit tenants may just result in higher rents. I hope not but we shall see.

HMO tenants have duties too

As I have mentioned before in this blog, there are new management regulations now in force for landlords of HMO properties. These provide for the landlord (or his manager) to provide contact details to occupiers, ensure that the property is safe in various respects (fire safety, handrails and banisters, bars on windows with low cills etc), maintain the property in a good condition, get proper certificates for gas and electrical installations, deal with rubbish and bins properly etc etc. All important management things that will ensure that HMOs are better and safer environments in which to live.

But what if the wretched occupiers thwart the landlords efforts? Damage the property installations, refuse to deal with waste responsibly, and keep the place in a mess? Well, landlords will be pleased to note that tenants now also have obligations under the new regulations, obligations not to impede or obstruct the landlord or his manager in the execution of his duty.

So arguably, if the tenant continually knocks over all the bins and rips out the bars in the windows, he too can be prosecuted and face a fine on conviction. Its not all bad news for landlords.

Two steps back?

One of the penalties for failing to get a license for your HMO will be that you will not be able to use the section 21 procedure to evict your tenant (this is the no fault/shorthold possession ground from section 21 of the Housing Act 1988, generally enforced via the optimistically named 'accelerated' possession procedure). Likewise, when the tenancy deposit scheme comes into force later this year, landlords who take deposits while not part of an authorized scheme will also be unable to use the section 21 procedure.

The Housing Act 2004 states no section 21 notice may be given in relation to a shorthold tenancy of a part of an unlicensed HMO so long as it remains such an HMO (s75) and if a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy (s215).

However they cannot physically stop a landlord from drafting up a document purporting to be a section 21 notice and serving it on the tenant. What the statute actually means is that the notices will not be effective. However how will the court know, if the landlord then brings proceedings for possession?

The answer is almost certainly that the court forms will be changed and the landlord will be required to certify that (with regard to licensing) either the property is not subject to licensing or that one has been obtained. So far as tenancy deposit schemes are concerned, again, the landlord will either have to show that no deposit has been taken or give proof of compliance with the scheme requirements.

However there will also be ways that defendants can check and verify the landlords assertions. Every local authority is required to keep a register of licensees which must be open to inspection from the public, and to provide certified copies of entries (s232). Likewise no doubt the authorized tenancy deposit scheme providers will also be required to keep a register of landlords and deposits, by the regulations due to be published later this year.

Although I understand and indeed to a large extend applaud the aims of the licensing and tenancy deposit schemes, which are there to improve standards and protect tenants deposits, I can see that this will all add an extra layer of complexity to the bringing of proceedings for possession under the section 21 procedure, already rendered hideous by the insane requirements of s21(4) regarding the need for the notice to state the ‘last date of a period of the tenancy’, which has caused many a landlord to lose his case and declare the law to be an ass. Let us hope that this blight on an other wise straightforward process is done away with in the forthcoming Law Commission proposed new tenancy laws, should they ever enter the statute book. Although for many landlords it may appear just as one step forward after two steps back.