Monthly Archives: September 2012

New edition of Quiet Enjoyment out today

The seventh edition of Quiet Enjoyment: Arden and   Partington’s guide to remedies for harassment and illegal eviction publishes today, 32 years after the first edition  was published by LAG.  Andrew Arden QC remains at the helm, and is joined in this edition by Rebecca Chan and Sam Madge-Wyld, both barristers at Arden Chambers.

Quiet Enjoyment is concerned with the rights of occupiers of residential property to live undisturbed in their homes and the legal remedies available when this peace is threatened.

The number of illegal evictions continue to rise and many tenants suffer loss, distress and discomfort and prolonged harassment, sometimes with lives being put at risk.  Quiet Enjoyment explains the laws that protect tenants, how to prepare for court proceedings and obtain injuctions and awards of compensation and damages.  The books covers both civil and criminal proceedings in turn.

This edition is up to date to cover the offence of squatting in a residential building brought in by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 s144 and how in practice the landlord’s claim that the tenant is a trespasser sits with the rights of the residential occupier under the Protection of Eviction Act 1977.

As with all LAG books this is a practical guide. It is an essential handbook for specialist housing lawyers and advisers but always has the non-lawyer in mind in its explanation of the legal issues and step-by-step guide to court procedures. As the use of private rented property by local authorities is on the rise, this is an important book for local authority housing and legal departments as a clear and succinct account of the offences and remedies

At only 326 pages Quiet Enjoyment is one of LAG’s slimmest and lightest volumes  so will be welcomed by all those used to lugging our 1000-page books to court.  This edition is also available as an eBook  and we welcome comments on how people find using that version.

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Pat’s back

Housing surveyor Pat Reddin is back at work!

 

As I explained in an earlier blog about Pat Reddin, the ‘go to’ surveyor for tenants and social landlords since the early 1970s, he was diagnosed with a brain tumour last year and, earlier this, underwent surgery which had left him out of action since.

 

As foreshadowed in that blog, Pat has continued to make a terrific recovery and is now back at work. In a letter to clients, he has explained that he had a while ago (before the condition was diagnosed) begun to appreciate that age was catching up with him, which would increasingly affect those aspects of his work that required agile mobility; he has now had talks with two former colleagues whom many will know, Wyn Burgess and Angus Moss, to do his site visits for him on a consultancy basis.

 

In terms of expert work, this will mean that he will still prepare a report and attend court if required, based on their inspections. Reports would be signed by both the site visitor and Pat (though clients will not be paying more than if the whole task was carried out by just one person). He recognises that this will mean charging public funding rates for assisted parties – but then he always has and it hasn’t let it stop him yet!

 

He is also available for the usual range of other work through which he has been subsidising his publicly funded practice for many years and is hoping that the new arrangement will allow him not only to continue to offer the same services as he has for many years but to expand the range of his work, to the same standard for which he has a well-earned reputation.

 

His client letter thanks everyone who has stuck by him through what has been a truly horrible year. As he says, we cannot imagine what it has meant.

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Student lettings

With the start of the new academic year Andrew Arden QC and Justin Bates consider some of the fees and other sums of money that students may have to pay to rent accommodation.

 

Introduction

In September and October, around 158,000 new students are estimated to start university (figures taken from UCAS). Whilst most new students are offered accommodation in halls of residence or other property owned or sourced by their university for the first year, they will soon find themselves having to make decisions about their accommodation for the following years.

 

For many students, this means finding others with whom they want to live and then finding a property. It is likely to be their first experience of renting for all the members of a group. Their parents may well not have any relevant or recent experience of the rental market. It is all too easy for them to be taken advantage of by landlords or agents. As the examples below show, this is an area that is ripe for legislative intervention.

 

Fees

There is a range of fees that tenants may find themselves being asked to pay. A recent survey carried out by Shelter found that one in four people renting in the private sector in England felt that they had been ‘ripped off’ by letting agents charging fees for, among other things,

  • Criminal Record Bureau checks
  • credit checks
  • unparticularised administration charges
  • inventory fees
  • unnecessary document copying
  • new tenant fees
  • renewal fees

 

Such fees are unlawful in Scotland (see the Rent (Scotland) Act 1984) and the Scottish Government has committed itself to ensuring that the law is enforced and (if necessary) amended to close up any loop-holes (see here). Shelter Scotland have recently launched a campaign to encourage tenants to sue for the return of any fees that were paid: as at June 2012, there were some 870 claims in the Scottish courts (all awaiting a decision) worth over £100,000 (see BBC news report, here).

 

There is no analogous protection in England. The Accommodation Agencies Act 1953 provides limited protection against fees for the provision of information about rental properties but does not prevent the fees of the sort that Shelter has identified.

 

It may be that the Unfair Terms in Consumer Contracts Regulations 1999 or the Consumer Protection from Unfair Trading Regulations 2008 could be used to fashion a remedy, but it would be vastly preferable to regulate fees at the outset, rather than leave it to tenants to try and reclaim them at a later date.

 

Holding deposits

Holding deposits also give rise to concern. Would-be tenants are asked, fairly early on in the letting process, to pay a ‘holding deposit’, usually in the several hundreds of pounds. The purpose is to prevent would-be tenants agreeing (or ‘bidding’) to take properties, which may cause them to be taken off the market or an alternative bid to be rejected, but then withdrawing because they find something better. That purpose is plainly unexceptionable, but holding deposits may be taken from several would-be tenants in relation to the same property – which is plainly wrong unless they are aware that they are in a ‘queue’ – and the vice lies in the difficulty unsuccessful tenants have getting their deposits back because

  • the circumstances in which the would-be tenant is entitled to withdraw are usually not spelled out,
  • the conditions for return of the deposit are likewise not spelled out (eg, if the credit check is said to be negative),
  • agents are hard to reach once they know the student will not be renting from them,
  • the terms of the tenancy may prove so onerous that the tenants cannot take it up, eg guarantees (see below), and
  • students do not know how to challenge a refusal to return the deposit and do not have access to advice or assistance getting it back. Indeed, it is not unknown for a request for return of the deposit to be met with the threat of an additional claim for a greater amount on specious grounds that the tenants’ putative default has cost the landlord or the agent more than is covered by the deposit. Furthermore, in practice, the amounts each individual student has to pay – perhaps only one or two hundred pounds, while a lot of money, is low enough for them to realise that litigation is not a viable option.
  • Alternatively, some agents assert that the deposit is transferable to another property (which ‘ties’ the would-be tenant to that agency, even if there is an alternative available elsewhere).

 

Guarantees

This has become so widespread that it merits a section of its own. This is the common practice of requiring all the parents of the would-be tenants planning to share a property to sign personal guarantees both for the whole rent of the property (not just the share of the rent which their child will be paying) and all other liabilities under the lease (ie, as one of the joint tenants with joint liability for all the terms), eg damage. This is made a condition of the tenancy being granted and, if the tenants do not take it up because their parents refuse to sign the guarantee, the deposit is then withheld.

 

There is quite a lot that can be said about this – not least because one of us has recently been through it (work it out – one of us isn’t old enough to have a child living away from home)!  First, the credit check will normally relate only to a single share of the rent – not many but most parents would fail a credit check for the whole rent for a whole house or large flat; when asked to guarantee their own child’s liabilities, they are nonetheless guaranteeing the rent in full. Secondly, the idea of guaranteeing the ‘behavioural’ terms for a group of young people, some of whom may not even be known to the parents, is hugely onerous. Consider this: their child comes home for the holidays while one of the other sharers stays on and, perhaps – even probably if a long enough break – has others in for a while, which ‘visitors’ or ‘lodgers’ cause damage or who, say, smoke in the property (which these days is commonly prohibited), for which those parents – never met joint tenant, never met sharer – will nonetheless be liable in law. Finally, the parents are in a real bind: given that these guarantees are so very common now, almost universal in relation to student lettings, how will their child find accommodation unless they sign?

 

Sometimes, it is possible to negotiate a variation to confine liability to the rent payments of one’s own child (just as it is sometimes possible to get back a holding deposit or even several) – and, yes, ‘guess who’ managed to do both but possibly (just possibly) was better equipped than most to be able to do so!

 

Otherwise, however, such guarantees are highly suspect and could well be regarded as unfair under the 1999 Regulations (above) – if otherwise qualifying (eg standard terms, etc) or even a sham (if the credit check was limited to the individual rent share). Again, though, this is not something which ought to be left to individuals to have to fight and cries out for legislative intervention.

 

Conclusion

We doubt we shall see legislation – in the current Parliament at any rate. The coalition government is committed to supporting and stimulating the private rented sector and any move such as this would be likely to meet a fairly solid block of opposition from agents and landlords which it will not want to have to deal with. Sometimes, though, it is right to fight on – and on and on – both because it may have some protective value insofar as it informs people who may then be willing to push back a little harder and because eventually it may lead to change.

 

With a bit of luck, it might even be in time for the other of us!

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