Monthly Archives: November 2012

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By Craig Smith

The Deposit Protection Service has recently announced its new plans to setup a new insured deposit scheme alongside its already well established custodial scheme in 2013.

Custodial Vs Insured

The difference between the custodial scheme and the insured is what happens to the actual deposit money. Custodial is exactly what it says on the tin, the deposit money has to be given to the DPS for them to hold securely whereas with the insured scheme, it is simply registered rather than being paid over.

Why Use Custodial?

Prior to 2010 we used to register tenancy deposits with The Dispute Service (TDS) and had to pay a yearly fee in order to confirm our registration. The renewal prices were hiked up so high that many Landlords and Agents were forced to move elsewhere, hence our move to the DPS. (There are too many abbreviations in tenancy deposit protection, or TDP for short!)

By using the DPS, we found that Tenants know that their money is safe and there is no risk of it being used for anything without their say so. Nor can it just happen to be used ‘by accident’ by a forgetful Landlord! One other agent local to us closed down recently which left a number of Landlords and Tenants reportedly losing out on money as the deposits were held in an insured scheme. No such chance if the money is held elsewhere!

Downfalls with Insured Schemes

Now I don’t know exactly how the insured scheme will work with the DPS but it looks as though a Landlord or Agent will not need to pay a registration fee but will need to pay a fee per deposit registered. This seems fair enough but still begs the question, why bother when there is a free alternative?

There seems to me there is no point in holding a deposit in your own account. The amount of money to be earned from interest is barely pennies with interest rates lower than low and the custodial option even offers a free dispute service to boot! Not to mention the extra hassle of having to pay back the money yourself whereas a repayment with the DPS custodial scheme can be done & dusted with the click of a few buttons.

The Future for Deposits

Back in April 2012 the law changed with regards to the registration of tenancy deposits. Any deposit taken for an Assured Shorthold Tenancy needs to be protected and the future surely looks set for further tightening of the protection process.

I can honestly say that I think deciding to use the DPS is perhaps the best decision any Landlord can make. It is free, easy and everybody knows exactly where their money is!

By Craig Smith

One common issue reported by a lot of tenants is that of damp appearing in a property. But it isn’t necessarily damp that is the issue as a lot of ‘damp’ turn out to be nothing more than condensation which can be cured with a few simple pieces of advice.

Condensation Problems

The majority of these issues are, of course, condensation. This can come about if there is a lack of ventilation in a particular part of a property where the moist air can’t escape. Although we are approaching the winter months and the temperature is gradually getting colder (although hopefully not too cold this year!) it is still important to ensure rooms are kept well ventilated, mainly when showering or cooking.

Both of the above generate warm, moist air which can mostly be seen on window panes. What can’t always be seen is the amount of warmer air that cant escape and will eventually appear as black marks or peeling paint on walls or ceilings. We tend to find that most of these reported problems occur in bathroom or upstairs bedrooms, bathrooms due to the obvious showering & warm water and bedrooms as a lot of people prefer a nice warm bed to go home to and leave windows etc closed.

Putting a Dampener on Things

The symptoms for damp and condensation can be very similar; typically a black or mouldy mark and a musty smell where it has occurred. When someone notices a mouldy or wet patch on a wall or ceiling it is easy to mistake this for damp, particularly in older properties such as Victorian terraces. Damp is usually caused when there is a leak of water into the property such as a leaking roof or gutter or water coming up from the ground through the walls.

The repair job might not be as big as it sounds and can sometimes be fixed with a couple of hours work from a local trusted builder. From experience in our office, items such as a slipped roof tile, blocked/broken guttering or a crack in the outside wall are the most common causes of this.

Putting the Damage Right

For condensation the best cure is to keep the affected areas well ventilated (for example, using extractor fans where there is one and opening windows to keep air flowing through) and to wipe down any areas where the mould appears to help prevent it spreading. It will take time for it to eventually die down but with some good ventilation and some old fashioned elbow grease you should soon notice the difference.

As above, damp may need a little more than just cleaning but a good builder can recognise exactly what needs to be done to cure the problem. Once the job has been finished you will probably need a few coats of good paint or stain block once the moisture has dried up to stop the marks from appearing again.

Big Difference

Condensation usually occurs higher up in rooms whereas damp can lurk around outside walls where moisture can come in rather than it trying to get out. Sometimes it is better to do some investigative work yourself before involving any costly call out charges.

By Craig Smith

One common issue reported by a lot of tenants is that of damp appearing in a property. But it isn’t necessarily damp that is the issue as a lot of ‘damp’ turn out to be nothing more than condensation which can be cured with a few simple pieces of advice.

Condensation Problems

The majority of these issues are, of course, condensation. This can come about if there is a lack of ventilation in a particular part of a property where the moist air can’t escape. Although we are approaching the winter months and the temperature is gradually getting colder (although hopefully not too cold this year!) it is still important to ensure rooms are kept well ventilated, mainly when showering or cooking.

Both of the above generate warm, moist air which can mostly be seen on window panes. What can’t always be seen is the amount of warmer air that cant escape and will eventually appear as black marks or peeling paint on walls or ceilings. We tend to find that most of these reported problems occur in bathroom or upstairs bedrooms, bathrooms due to the obvious showering & warm water and bedrooms as a lot of people prefer a nice warm bed to go home to and leave windows etc closed.

Putting a Dampener on Things

The symptoms for damp and condensation can be very similar; typically a black or mouldy mark and a musty smell where it has occurred. When someone notices a mouldy or wet patch on a wall or ceiling it is easy to mistake this for damp, particularly in older properties such as Victorian terraces. Damp is usually caused when there is a leak of water into the property such as a leaking roof or gutter or water coming up from the ground through the walls.

The repair job might not be as big as it sounds and can sometimes be fixed with a couple of hours work from a local trusted builder. From experience in our office, items such as a slipped roof tile, blocked/broken guttering or a crack in the outside wall are the most common causes of this.

Putting the Damage Right

For condensation the best cure is to keep the affected areas well ventilated (for example, using extractor fans where there is one and opening windows to keep air flowing through) and to wipe down any areas where the mould appears to help prevent it spreading. It will take time for it to eventually die down but with some good ventilation and some old fashioned elbow grease you should soon notice the difference.

As above, damp may need a little more than just cleaning but a good builder can recognise exactly what needs to be done to cure the problem. Once the job has been finished you will probably need a few coats of good paint or stain block once the moisture has dried up to stop the marks from appearing again.

Big Difference

Condensation usually occurs higher up in rooms whereas damp can lurk around outside walls where moisture can come in rather than it trying to get out. Sometimes it is better to do some investigative work yourself before involving any costly call out charges.

By Craig Smith

At the end of every tenancy comes the day that a lot of Landlords and tenants both dread… the day the tenant hands the property back to the Landlord. The actual arrangements can be simple enough but sometimes the property can be returned in a less that satisfactory condition.

Landlords Not Happy

A recent survey of 300 Landlords by Meet My Agent suggests that 73% were not happy with the condition in which their rental property was returned to them. This doesn’t necessarily mean that the properties needed a complete refurb but can mean items such as cleaning or repairs were not up to scratch. That said, the survey also suggests that 41% of Landlords’ properties have needed a complete refurbishment following a tenant vacating which is staggering!

Our Recent Statistics

I’ve looked back through our most recent 20 check outs and can conclude that, in general, more properties have issues upon the tenants vacating than those that don’t. The split is 60% that have issues, whether it is something small such as a couple of hours cleaning or more in depth works, to 40% that were left with no issues whatsoever and are ready to be occupied again.

Facts Instead of Presumptions

To get a better picture I think it is more important to look at the actual level of works required rather than just looking at the number of issues. Looking back again at the 60% which needed works, I cant find a single one which didn’t need some form of cleaning following the tenant vacating. Again, this doesn’t mean that these tenants have lived in squalor, (far from it!) but does mean that the property wasn’t left in such a clean condition as when the tenancy first began.

3 out of those 12 needed items other than cleaning such as replacement items but none of these were anything too major.

Preventing Extra Works

One way to better the chances of a property being returned in good condition is to not only take an inventory at the start of the tenancy but also to tell the tenants what you would expect. Part of our usual process is to send a short set of guidelines to the tenant which lists some of the most commonly forgotten items. Some of the main concerns mentioned above include dusting down skirting boards or making sure a kitchen extractor hood is left clean.

Best Practice

Through the experiences this office has gained we find that advising tenants before they vacate can help to ensure a property is returned in a good condition. Of course this isn’t always the case but it does all add up to ensure a smoother handover!

By Mike Edwards

In July 2011 the Court of Appeal ruled in the case of Suurpere v Nice and Nice that inadequate Prescribed Information as required under the Tenancy Deposit Regulations as set out in the Housing Act 2004 and above all in the Housing (Tenancy Deposits)(Prescribed Information) Order 2007 had been issued to the tenant.

In this latest case the Court of Appeal on 6th November 2012 has reached a similar decision and overturned an earlier and incorrect lower court decision. The full details of this decision are awaited but the simple facts are that the tenant had paid a deposit and the Landlord had protected it in one of the approved schemes but he had not given the prescribed information (PI) as required by the Prescribed Information Order 2007. In the Suurpere case there was an agent involved who paid the fine but in this case there was no agent.

The tenant had significant arrears so the Landlord issued proceedings and as is so often the case and where the big danger lies for landlords the tenant counter-claimed that the requirements of the Prescribed Information Order had not been complied with. At the initial hearing the Landlord admitted this ‘offence’ but in defence claimed it didn’t matter as the tenant could easily find the information for themselves. This was exactly the decision in Suurpere – that the tenant should be given the information not have to go searching for it as and when they needed it.

This opinion was strongly emphasised in Suurpere which makes it all the more astonishing that the lower court Judge was persuaded by this argument. That in effect it is the protection of the deposit that matters in TDP cases and that the issuing of the PI is no more than an administrative procedural necessity. So the Landlord claimed the deposit had been protected (which it had) and that the tenant could have gone to the scheme administrator for anything else he wanted to know. The lower Court dismissed the tenant’s claim stating information in the tenancy agreement (scheme details) plus other information the Landlord provided during the Court hearing was enough to comply with the requirements of the Order.

Not surprisingly given such an obvious error at law the tenant appealed and equally unsurprisingly the more learned Court of Appeal disagreed completely with the Landlord and original Judge. It held quite clearly that the giving of the PI amounts to more than just a minor procedural obligation and that the information has  real importance in advising tenants how to get their deposit back and also how they could go to a dispute at no cost to themselves and without the need for litigation on their part.

In effect the Court of Appeal has upheld the decision of the High Court in Suurpere v Nice (see Nearly Legal report here). The lower Court had not reached a proper judicial evaluation. The Landlord clearly was in breach of the Prescribed Information Order and so the penalties in section 214 The Housing Act 2004 applied. Therefore the Landlord was ordered to return the deposit plus, because the original offence had occurred before The Localism Act 2011 provisions came into effect in April 2012 the mandatory penalty of three times the deposit applied

So the tenant won and his appeal was allowed. Significantly the Court of Appeal has now agreed with the High Court decision in Suurpere that the Prescribed Information a Landlord must serve on the tenant is not some administrative afterthought which simply acts as an accompaniment to deposit protection. It is instead a vital component and one of two parts in the deposit protection process both of which must be fully and correctly completed by the Landlord to discharge his obligations in respect of deposit protection.

Simply to protect the deposit, laudable though that is compared to not protecting it, is insufficient to discharge the obligations. But more importantly this latest binding decision from a Court of Record confirms as was held in Suurpere that Landlords must supply that information themselves and not leave tenants to go searching for it themselves. As in Suurpere simply providing the DPS website address is not enough – the Scheme Terms and Conditions must be printed and attached to the Prescribed Information notice being served.

For the other two schemes there is a leaflet which under their rules it is obligatory to issue. Post Localism Act 2011 if not doing so before landlords and agents should definitely obtain a signed copy of a suitably endorsed PI form as proof that the tenant has indeed received all the information.

All this means that if there was any shred of doubt post Suurpere there is now none whatsoever that the need to comply with the Prescribed Information Order is just as important as the need to place the deposit in the DPS Custodial scheme or insure it through The Dispute Service or my|deposits schemes. The two decisions mean tenants can easily defend a landlord’s section 21 action if they can show the deposit has not been protected OR that the Prescribed Information now have clear means of defending possession actions based on s21 Housing Act 1988 actions or in rent arrears cases. If either has not been completely and correctly completed by the Landlord and if he is unable to prove that if challenged then any s21 notice he has served will fail and in any section 8 action the tenant can counterclaim.

Informed opinion was that this appeal would always fail and that the Lower Court was clearly in error by in effect saying the PI didn’t really matter and if the tenant wanted more information he knew where to find it. But the Landlord was foolish to appeal as the July 2011 Appeal Court decision in Suurpere virtually guaranteed this appeal by the tenant would succeed. So now the Landlord hands over the deposit, plus a x3 penalty and presumably has significant costs.

While agents and Landlords may be irritated by this decision it is the only correct one that could be arrived at, as in Suurpere. Given the detail in the Statute and above all the Prescribed Information Order (2007) it is clear that no matter what Landlords may believe the Prescribed Information always had great significance given the detailed way the information that must be served on the tenant is laid out in the PI Order.

By Steve Roulstone

A Court of Appeal decision has confirmed that Landlords not only need to register Tenants deposit under the Tenants Deposit Protection legislation, but that they must provide Tenants with the Prescribed Information in connection with the scheme the money is protected with, or the courts now have a clear case confirming exactly what will happen should they fail.

Old News

Back in February this year, I confirmed the changes introduced by the Localism Act 2011 which was introduced in April this year. The changes surround not only when protection needed to be registered by, but also what was delivered to the Tenant in how we register deposits.

PI

The Prescribed Information is what was under review in this case, after a Landlord had failed to supply the data to the Tenant even though the deposit was protected. In fact in the original court decision, he thought the courts agreed with his stance, that the purpose of the legislation was to protect the money and that had been achieved. The Tenant on appeal, has won on the basis that protection MUST be accompanied by the information surrounding the Tenants rights and how to act to protect his money.

Fine.

The penalty is both full refund of the initial deposit and a fine to the value of three times this same amount. This is of course significant and places before anybody who felt otherwise, that the need to protect deposits is only half of the intended actions required under the act. But it is not just when the deposit is initially received that action needs to be taken.

End of fixed term.

Under the Localism Act, it also became clear that in clarifying how the legislation should work, new documents need to be given with every new Tenancy. This means, when a Tenancy ends its initial fixed term, new information needs to be given. The fine for failing to do so, is as was awarded in this case, three times the deposit.

Solution.

There is only one! Do things the right way to start with, understand the requirements and put in place a system that ensures all Tenants receive the data at the start of the Tenancy, as well as with any new agreement signed. This alone should be easy, if a Tenant is signing an agreement, hand out the scheme rules surrounding the deposit. If you then add a system that does the same when an agreement becomes periodic (Treated as a new agreement in the Localism Act) and ensures Tenants get the updated information at this time, you will be covered. But always, if in doubt? Ask!

By Steve Roulstone

Two items of news from the last week have caught our attention at Castle Estates in Stafford and that is news surrounding Carbon Monoxide Detectors. The first was the change is the Landlords Gas Safety Certificate to include inspection of flues running through voids and now it has been made compulsory in Northern Ireland for all new homes.

Swift progress.

Both of these moves are positive forces in the battle against this silent killer and whilst the change to include hidden flues within the Gas Safety Inspection is going to cause many problems before the end of the first year whilst the changes take effect (Many, in blocks of flats, will require access through areas which do not belong to the premises in question) the change in Northern Ireland is a move to have them as standard practise in all properties whether rented or owner occupied.

Balance in favour of rented property.

For many years as a Letting Agent I have known just how Tenants are better protected than owner occupiers, who would normally never dream of having a Gas Safety Inspection. Because I did think it a good idea, I found a Gas fire in a house I purchased was not vented at all when fitted, indeed the chimney breast was open and allowed fumes to pass directly in to the main bedroom through fitted drawers. I could have gone to bed and never woken up if we had not found the problem.

Good progress.

But the other point about Carbon Monoxide Detectors is that they are such a good idea! Because of this, as an Agent who likes to ensure we do things the right way, we are going to issue a free Carbon Monoxide detector for every new Landlord and change of Tenant.

Correct usage.

Of course one important matter is to ensure they are fitted and used. We have decided to provide one that is portable and allows the Tenant to have it in the lounge when the fire is on and then taken to the bedroom when they turn in for the night. This way we will be able to ensure that they are working from day one. The only maintenance being the replacement of the battery!

Law of the Land.

What must be remembered is the change in law came about because of a death and any move to reduce the risk has to be a good one. This is why we and our Plumbers believe it will not be long before it becomes Law for all properties. By providing them free of charge, we will remain ahead of the game and ensure this is one more area where are doing the best possible for our Landlords.