Housing law in crisis

The Law Society Gazette was rather a worrying read this week. Amid tales of criminal legal aid solicitors going on strike, and DCA leadership not being fit for purpose, was this news item on plummeting legal aid housing contracts which have fallen from 840 to 587 – a drop of some 30%. A bet that there are quite a few housing law deserts out there – 587 firms cannot cover the whole country, particularly as I suspect quite a few of those are in London.

I attended a housing conference last week. The speaker on unlawful eviction confirmed that in his experience the police simply refuse to take any action when someone is illegally evicted - despite that fact that it is a criminal offence. And yet being unlawfully evicted from your home must be the most traumatic experience.

So if the poor old illegally evicted tenant can’t get any help from the police and there are hardly any legal aid housing solicitors for him to consult – how is he going to be able to enforce his rights to re-instatement (if he wants it) and compensation? Drafting a decent court claim for compensation for unlawful eviction is not easy as there are so many different causes of action – it would be a difficult job for most litigation solicitors, let alone a litigant in person.

Its not fair is it? And what is the point of making something a criminal offence if the police refuse to deal with it?

Happy birthday to me!

I see that my very first blog entry was on Friday 17th February last year - so this blog is now one year old! Its been quite fun so I expect I will continue.

Feed me!!

Eminent legal blogs have predicted that RSS will explode in 2007, so who I am to argue? We have now finally added a RSS feed to my Landlord-Law site, which gives links to new items recently uploaded.

Not without a certain amount of angst from me, as I continue to find this really simple technology a bit difficult to follow sometimes. However my web-designer Gill did admit that not all of it is really simple, which gives me some comfort (although perhaps she was just being polite).

I am now using RSS feeds on my Google personalised home page which means that I can easily view and keep up with news, legal blogs, and of course the Doctor Who news page and outpost Gallifrey! I find I use it all the time now, and have five tabbed paged of links!

There is also a feed for this blog which you should find right at the bottom of the screen if you scroll down. Although if you use Mozilla Firefox, the feed icon on your toolbar should go red and you will be able to subscribe by clicking that. This doesn’t work with the Landlord-Law feed though - I have no idea why not, another one of the 'really confusing' things about this 'really simple' system.

Merger Mania

The word on the street is that ARLA (the association of Residential Letting Agents) and NAEA (National Association of Estate Agents) are to merge. See this report. The official verdict is that this is a 'major step in the protection of the consumer, the professionalism of the residential property industry and a benefit for all those employed in residential sales and lettings'

However others are not too sure. A later report expresses grave concern. A major letting agency, Leaders have issued a press release on the subject. I myself have spoken to another letting agent who was very worried that ARLA will be subsumed by the estate agents organisation and the needs of letting agents, which differ, will less well catered for. His company is a member of the Guild of Letting and Management. If the merger goes ahead, I suspect that the Guild will do rather well out of it.

Another merger on the cards is between two landlords organisations, the National Federation of Residential Landlords (NFRL) and the Southern Private Landlords Association (SPLA). See this press release. This will mean that there will be two large landlords organisations – The National Landlords Association, and the merged NFRL and SPLA.

Interestingly the National Landlords Association has been awarded a contract to run one of the two insurance based tenancy deposit schemes, the one which is supposed to be aimed at landlords. However the NFRA/SPLA is offering its members a scheme using the other insurance based scheme, provided by the Dispute Service Ltd, which I understand was aimed primarily at letting agents. Could this mean that the two landlords associations do not like each other?

An interview on the Tenancy Deposit Scheme

I did my first recorded interview yesterday. It was an interview of Lawrence Greenberg who runs the Dispute Service Ltd, one of the three companies contracted to run the new Tenancy Deposit Scheme ("TDS"), scheduled to start from April 2007.

I am afraid you can't listen to it unless you are an annual member of Landlord-Law as it is a 'members only' content. However I think Landlords will find it very interesting. Here are a few points which arose from my talk with Lawrence and his colleagues during my time with them.

Landlords must have a detailed inventory. It is clear that in a dispute where there is no inventory, landlords run the risk of losing their case simply because of the lack of inventory. They need to be very, very detailed.

Photos are a waste of time unless they are very clear and focused and contain a ruler or something similar to show the scale. I have to say that photographs clients have sent to me in the past when I have been advising about their tenants liability for damage, have generally been pretty useless.

Tenants need to protect their position and make sure that any damage to the property or its furniture is marked on the inventory at the check in meeting, otherwise there will be no way to prove that the damage was not done by them, and they will be at risk of having to pay for it out of their damage deposit.

I did not discuss any actual fee charges with Lawrence, but I suspect that the cost of the insurance scheme may be more than people think, especially at first. Not so much perhaps for agents who are members of one of the national associations (particularly those who are already clients of the Dispute Service’s existing TDS scheme), but for private landlords who may be an 'unknown quantity' and therefore a higher risk.

Of course landlords who do not want to pay for TDS can use the custodial scheme (this is not the scheme run by Lawrence’s company but one of the two others). However if so they will have to hand the deposit over to the scheme. One of the people I spoke to (not Lawrence) expressed doubts as to whether the company running this scheme, Computershare Investor Services PLC, would be able to make a profit, as the government is not making any contribution to their running costs, their only income will be the interest on the deposits held, and part of this will have to be paid out to the tenant.

Anyway it was great fun doing the interview, just like a real radio journalist! I had a chat with a BBC man a few months ago who gave me a few tips, one of which being to look the interviewee in the eyes during the interview so you can judge when to speak. I did find that a great help.

I shall have to do some more …

Trends in buy to let

There is an interesting article here on buy to let mortgages (which will be 10 years old this summer) which shows that they are highly successful and indeed less risky (for the lender) than residential mortgages as only 0.68% are in arrears of more than three months, compared to 0.97% of normal loans.

Buy to let mortgages now account for 8% of the housing stock in the UK and the buy to let market is worth over £73 billion. However the average property portfolio is still fairly small although it has apparently has increased from three per landlord in 1996 to seven this year, and research has revealed that 83 per cent of landlords plan to increase or maintain their portfolios in the next six months.

However in the future this dominance of the market by small investors may change. This article in the Times indicates that larger investors, such as pension funds, looking for a steady income flow, may be looking to increase their investment in this area. We could be also looking in the future at considerably more ‘build to let’. This is common in Germany, Holland and several other European countries, where many people live for years or even decades in blocks of flats owned by banks or other financial institutions, but is fairly rare in the UK.

The disincentive for the larger investors may be that residential property is management intensive - finding tenants, chasing rent arrears, dealing with repairs - and the large city investors (suggest the Times) would not want to be directly involved in this work.

However there is no doubt that residential property has proved itself over the past 10 to be a sound investment and no doubt will remain popular, at least with the smaller landlord, and possibly also with the big boys.

My talk at London Landlords Day September 2006

You may be interested to see a recording which was done of a talk I did at London Landlords Day last September on Essential Legal Points for Landlords here. Be warned that the first few minutes is the camera running before I start talking (there is a long shot of the emergency exit notice for example and quite a lot of the walls).

I am a bit in two minds about giving this link because as usual my hair looks dreadful, but I do cover quite a bit of ground, if the subject of landlord and tenant law interests you.

Which UK law is most in need of reform?

There is an interesting article in The Times online today, where members of their law panel nominate the area of law they consider to be most in need of reform.

I like the answer given by Professor Adrian Briggs, who suggests that law which affects ordinary people should be written in a language which is easy for them to understand. This is also reflected in the response of Andrew Arden QC who says that some legislation almost looks as if it were deliberately designed to be unintelligible to those whom it most affects, citing the Housing Benefit Regulations as an example.

I would add that if the Law Commission has spent a considerable amount of time working on a much needed piece of legal reform, for example the Renting Homes Bill, carrying out huge amounts of public consultation, it seems madness not to use it. But maybe it will be included in the next Queens Speech.

What piece of legislation do you think is most in need of reform?

Legal Professional Training Ltd

A new year, a new business venture. This year it is a new training company called Legal Professional Training Ltd, "LPT" for short.

LPT has been some time in the making. I and several others were to do some lecturing last year for a training company which then went under. We were a bit upset about losing the potential earnings, and some of us decided to go it on our own. Eventually LPT was formed. Basically it consists of me, Martin Iller, Deputy District Judge, author and solicitor, Diana Iller (yes, former wife but a long time ago – they are still speaking) solicitor, and Director of Postgraduate Studies at Thames Valley University, and my husband Graeme, employment specialist and a former trade union man. Martin and I are going to do the housing courses and Diana and Graeme do the employment/discrimination stuff. I think we will all make a good team.

If we can battle our way through the paperwork that is. We incorporated on 4 December 2006. Jordans did that – they were very efficient and helpful, no problems there. The problems are mainly with getting the bank account opened. We all live in different places (well, not Graeme and I, but the others do) so it is a nightmare getting the papers signed plus the bank then went and lost them, so most of it has to be done again. And until we have a bank account we cannot really register for VAT or do anything else much. So as I have some courses I want to start advertising, they are being run technically as Landlord-Law courses ‘in association’ with LPT for the time being. Hopefully we will not have to do this for too long.

So what sort of courses will we do and how will they be run? Well for the online training we are using an open source course management software called ‘Moodle’. I had never heard of it before Martin mentioned it but it is really good. Apparently Open University use it and lots of schools and colleges. We now have a moodle training site and I have done a fair bit of training on how to create the courses.

We also want to do some traditional face to face training, and will be looking to develop courses and such over the year. We will also do in house stuff if people want it.

So there you are. I spent much of the Christmas period creating two moodle courses (in between cooking turkey and watching Dr Who DVDs with my offspring) one of which is ready to roll and the other is scheduled to run for four weeks from the end of March.

The main course in March is on tenancy agreements – so many people fail to understand the Unfair Terms in Consumer Contracts Regulations 1999 or even realise that they exist. I saw a tenancy agreement provided by some landlord software only the other day which was way out of date and wide open to successful defences by tenants against possession claims (e.g. for rent) during the fixed term. More courses are to follow, on contracts of employment and discrimination law, just as soon as the employment team can find time to create them.

To find out more, why not visit our web-site at www.professionallegaltraining.com?

Five things

To those who do not know, there is this sort of tag thing going around, I do not know where it came from, but UK legal bloggers are all tagging each other to tell 5 things about themselves that others don’t know about, and then tag 5 other bloggers. I have been tagged by two sites, Impact and Family law.

I don’t mind telling 5 things about myself you probably didn’t know, if you don’t mind reading them. Here goes:

1. In the late 1980s I took a year out to travel and spent about 7 months in Mexico. I learnt Spanish and stayed on a farm and had a great time. I have forgotten a lot of the Spanish but I expect I could get it back if I tried (although my language ability is about moron level, I learned at about half the speed of everyone else).

2. I originally studied geography (at Hull University) – at that time I no more thought that I would end up a lawyer than go to the moon (law students were sad people who spent most of their time on the second floor of the Brynmor Jones library). I am still interested in environmental matters, as you can see from much of this blog

3. After Hull, I went for teacher training, but gave it up after teaching practice, as the prospect of spending the rest of my life trying to teach 15 year olds who did not want to learn geography, was to awful to contemplate. Best decision of my life (almost).

4. I don't like potatoes. This means that a fish and chip supper is a bit of an unbalanced meal for me. Everyone always assumes that everyone likes potatoes as a matter of course.

5. I don’t drive. When I was young I couldn’t afford it. Now I’m older I am too scared to learn. Its not a real problem though. What you have never had you don’t miss, and it is of course better for the planet. Besides, my husband is a much better driver than I could ever be.

The second stage of the tagging exercise is a bit of a problem as I think most of the bloggers I know of have already been tagged. Still here goes. Corporate blawg, Legal spy, Terminological Inexactitudes, Head of Legal, and the Criminal Solicitor. All good blogs.

Landlord success in disability discrimination case

There is an interesting report in the Times on a case, Williams v Richmond Court (Swansea) Ltd (heard on 14 December 2006), on disability discrimination. The landlord was appealing against the Judge's finding against him at first instance that he discriminated against 81 year old tenant Mrs Williams who had requested he install a stair lift, as she found it difficult to use the stairs.

The Court of Appeal found that the landlords did not discriminate, as the reason they had refused to install the stair lift was not because Mrs Williams was disabled. The reasons given by them for refusing consent included, (i) that the other tenants had voted against the proposal; (ii) aesthetics; (iii) the cost of repair; (iv) inconvenience to the residents as a whole; and (v) the Disability Rights Commission code of practice made it clear that it was not under any duty to make reasonable adjustments to the premises.

The Court of Appeal said that Judges have to carry out a two-stage exercise. First, it was necessary to identify the relevant act or omission on the part of the appellant, and second, it was necessary to look to comparators to see if they were or would have been treated differently.

Here, none of the reasons given by the landlord for refusing consent related to Mrs Williams’ disability. The underlying complaint was that the they had failed to put her in a better position than that to which she was entitled by her underlease, namely by failing to take positive action and providing consent to the installation of the stair-lift.

Landlords will no doubt feel fairly pleased at this judgment. I am sorry I am unable to provide a BAILLI link but the case does not appear to have been reported there yet.

Two more bad landlord stories

Landlords may moan about the new HMO licensing rules, but two stories which have come my way recently show that there are still bad landlords out there.

Firstly, this report on Youillscar Mohammed a Landlord in Glasgow who not only let out HMO properties without the proper fire precautions, but asked tenants to lie for him so he would not have to pay the license fee.

Then there is our old friend, ASBO landlord Dickens from North Wales, who has (according to a report in the Daily Post) recently had charges brought against him under the gas safety regulations. Although apparently he has now sold most of his portfolio, so the tenants of Conwy are now fairly safe from him.

I dare say these are not the only offenders. Although I agree that the disparity in the license fees across the different authorities is unfair, I do think that basically the regulation of landlords, at least in the more vulnerable HMO area, is justified, if it helps prevent this sort of thing, and keeps tenants safe.

Publishing for profit

I get sent books from time to time to review for my Landlord-Law site and I recently received a copy of Regulating Conditions in the Private Rented Sector: A Practical Guide, by Caroline Hunter and Andrew Dymond from Arden Chambers published by Thomson/Sweet & Maxwell. I was quite looking forward to receiving this, as the authors are distinguished lawyers and it is an area of law which I write about quite a lot. However although it will undoubtedly be a very useful book for me which I expect I will use a lot, I am a bit disappointed.

My main gripe is that virtually half of the book is appendices, most of which are extracts from statutes. However is there really any need for statutes to be reproduced in text books any more, in this age of online legislation? Particularly since the UK Statute Law Database has been published (although admittedly it would not have been made public when this book went to press).

At £85 this is not a cheap book. It is about an inch thick and on first glance you might think, "OK, eighty five quid for an inch thick book of analysis on a new area of law from specialist counsel, that’s acceptable". But is it acceptable to be paying effectively forty pounds for a reproduction of statutes which you can get free on the internet? It would be very easy just to have a list of relevant statutes and the url of the Statute Law Database and leave it to the reader to look them up. This book is after all aimed at the professional legal market, virtually all of whom will (or should) have broadband on their desktop computers and probably also their laptops. But if the statutes were eliminated, would we still feel happy about paying eighty five pounds for a slim volume of just half an inch thick? Probably not.

The internet is changing everything. I suspect that lawyers, a deeply traditional species mostly still steeped in paperwork and pink tape, will one day wake up to fact that legal publishers are charging a fortune for something they can now get easily for free, and refuse to pay any more. However this may not be until the younger solicitors trained on computers and the internet start to make partner status.

Tenancy deposit scheme contractors named

Well we now know the companies who are going to run the tenancy deposit protection schemes. From 6 April every landlord who takes a damage deposit will have to be a member of one of these three schemes.

The first is the general custodial scheme. This will be free of charge and open to everyone. The deposits will have to be handed over to the scheme administrators who will hold them until the end of the tenancy (the interest on the money held will pay for the scheme costs). So not very popular with landlords who like to have the deposit handy to use for repair and other work, and also to swell their own bank account. The company running it is to be Computer Investor Services PLC, a large company whose web-site gives little information about the scheme other than a pdf press release.

There are then two ‘insurance backed’ schemes. These are the schemes which will allow the landlord to hang on to the deposit money, so long as he pays an insurance premium (so the company can pay the deposit back to the tenant if the landlord fails to cough up at the end of the tenancy).

The first of these is being run by the Dispute Service Ltd. This is the same company which has been running a (very successful) trial scheme for letting agents for the past year or so. The current scheme is just for agents who are members of ARLA, the NAEA and RICS, but the statutory scheme will be open to other agents and landlords. The chief executive is Lawrence Greenberg who was also in charge of the tenancy deposit scheme trialed by the Independent Housing Ombudsman several years ago, so he is very experienced in this type of work. I note for example that this is the only one of the three companies who will be providing their own arbitration service rather than using the Chartered Institute of Arbitrators. I suspect that this scheme will have the least teething problems, in view of their past experience.

Finally there is Tenancy Deposit Solutions Ltd, which is sponsored by the National Landlords Association and which will be administered by Hamilton Fraser Insurance. I understand that the National Landlords Associations' initiative (which will no doubt help increase their membership) has annoyed greatly some of the other landlords associations. There is a surprising amount of friction and antagonism between the various landlords associations (and sometimes even within individual associations) which is a bit of a shame really, as they all ought to pull together rather than wrangling among themselves. After all no-one else is going to look out for their interests. However it is good to see that at least one of the schemes will have a (no doubt considerable) input from landlords, who will probably ensure that it is run in a landlord friendly manner. I am sure that this scheme will be very popular among landlords.

So there you are. The delegated legislation which will set out the rules and regulations governing how precisely these schemes are to operate has not yet been published, but is expected to be laid before Parliament some time early in the new year.

Going green electric

I was very pleased to see this article in the Cash section of the Observer this Sunday. Like a lot of people probably, we have been thinking of switching to a more environmentally friendly electricity company but were confused about which company would be the best.

The answer, according to the Ob, is Good Energy, which it seems is the only one to source its supply 100% from renewable sources. Sounds good to me. I expect we will be switching soon, but I just want to think about it a little bit longer …

I interview Dalek Sec

We are huge Doctor Who fans in our house, so when I bought some lapel mikes for my recording equipment, my son Patrick insisted that I interview him as a Dalek. Landlord and tenant law on Skaro seemed the obvious choice of topic, although purists will realise that of course this interview is impossible as Skaro was destroyed in the time war. We only thought of that afterwards.

We did not really have a script but made it up as we went along having discussed a few ideas first. It was Patrick’s idea to mention the oncoming storm (if you have watched the new series you will understand this), my husband suggested enslaving the Thals, and I was determined to escape via a ventilation shaft.

I have loaded the interview up to my web-site as a bit of Christmas fun, and you can listen to it here.

One rule for treasury draftsmen ...

In these days of plain English and legislation against unfair and unclear terms in consumer contracts, one can’t help wishing that there was something similar which applied to statutory instruments.

I have been trying to make sense of The Disability Discrimination (Premises) Regulations 2006 but I have to say that so far I have found them almost wholly impenetrable. Of course this may be because their general literary style is so deeply boring it is difficult to work up much interest in mentally cross referencing the necessary three or four sections so you can work out what the section you are looking at is talking about.

If this sort of thing was printed in a consumer contract it would be slated by the OFT as unfair and be unenforceable. But although this is not a contract, it is relevant to consumers, as presumably not only lawyers will need to know about disability discrimination in premises. But it is drafted in such a way that most ordinary people will never be able to understand it. Even the explanatory note at the bottom is not wholly clear. Would that treasury draftsmen were subject to the same drafting rules as the rest of us!

Financing the courts

I was talking to someone who knows the other day, who told me that many courts are experiencing horrendous financial problems. Their funding is insufficient and they are having to make more and more cuts, which are affecting the services that they provide. For example badly paid staff, with no proper training resulting in a high staff turnover, not enough money to employ sufficient deputy district judges which means huge back logs with box work and delayed court hearings. All very bad news.

Well one answer is perhaps for the courts to become a bit more commercial and start earning some extra income. Here are a few suggestions:

A monthly newsletter. I have always thought that this would be a good idea – it could have announcements about court services, new initiatives etc, letters from readers, articles by Judges about procedures not being followed properly, Q&A sections, information about new court rules and procedures and the like. Virtually all solicitors firms and barristers chambers would no doubt subscribe. If the court charged £250 pa and got 200 subscriptions that would be £50,000 per year. It could be either paper or electronic.

Guided tours around the courts. Sounds awful but if stately homes can make money at it, why not the courts? The guide could give information about the judicial and court system, plus some juicy stories about famous trials which had taken place and the like.

A business centre, e.g. for solicitors and lawyers. For example wi fi cards for laptops, a photocopying service, hire of computers with internet access, hire of standard legal books such as the green book by the day or half day, and fax facilities.

A bookshop selling legal books, both for the general public (for example the LawPack range) and text and other books for solicitors and barristers. Plus some bodice rippers for bored advocates to read in the advocates room if they have to wait a long time for hearings to come on and don’t have any work to do or colleagues to talk to! It could also usefully stock counsels notebooks and pens.

These are just a few ideas. I am sure there are many more. Courts could ask their staff to make suggestions, with a bonus paid for the best ideas. Staff could also give suggestions for savings as well – often quite junior members of staff can come up with brilliant ideas that no-one else has ever thought of.

So there you are. No doubt there are reasons why none of these can happen, but I am sure that if they made an effort and thought in a different and more entrepreneurial way, courts could do a lot to bring in some more cash. They are obviously not going to get it from the government.

Tenants book - any suggestions?

Nearing completion of my tenants book now. I have done most of the text and now need to check it and improve its readability.

I am worried however that it might be a bit weak on social tenancies. My main experience in the past 10 years or so has been with private tenancies. I know some of you lot do housing law – is there any advice you would like to pass on? What could tenants do, for example, which would make your job easier when they get around to consulting you? Is there anything in particular you think I ought to emphasise? Problems you see a lot of?

If you are a tenant - are there any sorts of problems you would particuarly want me to look at? I think I have them all covered but you never know ...

I am quite happy to credit good suggestions (so long as I know who you are).

Unbelievable arrogance

I have just had the dubious pleasure of watching Vera Baird QC, our legal aid minister, being questioned on Channel 4 lunchtime news about the legal aid reforms. When asked how vulnerable clients were going to manage if they have to travel up to 50 miles to get essential legal advice, she just shook her head in a patronizing manner and said that that this was simply not going to happen.

Actually, she told us, it is going to be better for everyone after the reforms come in, because (she implied) solicitors will be forced to manage their practices properly which will mean more money and work for all. In fact, those silly old solicitors are just making a fuss about nothing and will soon be grateful to the government for making them carry out these essential changes which will make their working lives so much better.

How stupid is she? Does she not know that all legal aid practices have had years of efficiency measures being imposed on them, auditing, five year plans, cost cutting exercises and the like. Does she really think that she, a government minister and barrister, knows better than the partners how to run a legal aid firm? And does she really think that solicitors are going to carry on doing legal aid work if these reforms come in, when there is other much more profitable work to be done? It is not solicitors, remember, who are going to suffer for all this, it is the clients.

So far as I can see there are two possible reasons for the governments attitude. One is that they want to kill the legal profession dead because an active legal profession is an embarrassment to them as they keep pointing out problems in their legislative program etc. The other is that they don’t have the cash and the Health Service is a more popular destination for any cash that they do have. I really hope it is the second, but sometimes I get paranoid and wonder if it is the first.

But if I had not given up legal aid work a long time ago, I would be very much tempted to give it up now and to write to Ms Baird and tell her that it was her smug patronizing attitude which had been the last straw.

If you feel as annoyed about all this as I do, support the Law Societies "What price Justice?" campagn.