Tag Archives: Property Legislation

20Aug 2010

Property Landlord advice:Teenage Tenancies

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By Mike Edwards

 

Changes to the Law

If a tenancy has been granted to a minor then to date it has probably been completed in the tenant’s name with a Guarantor’s Agreement in the background. However all this has now changed and that procedure may not be robust enough to withstand a challenge from the tenant against a section 21 notice issued while they are still under 18. This is courtesy of a recent Appeal Court decision known as The Hammersmith Case

An under age tenant had applied to the council for homelessness assistance when she was 16 and pregnant. The council provided her with temporary accommodation on an AST with standard terms and conditions. When it later received complaints from other residents about her conduct, it served notice to quit, brought a possession claim and obtained a possession order. The Court of Appeal however has allowed the tenant’s appeal and struck out the possession order.

And the result is!

This is because she was not 18 when the tenancy was granted. So the local authority was legally cast in the role of Trustee. However be warned the role would be assumed unwittingly by any Landlord unwittingly accepting the role of being the tenant’s Trustee on the tenancy until the tenant reaches 18 at which time the danger automatically falls away. In effect this decision is saying that ANY Landlord in granting an under 18 tenant an AST is in fact granting it in Trust for them as a Trustee and thus cannot serve notice to evict them as to do so beaches that Trustee status.

Therefore a Landlord cannot terminate such a tenancy or seek possession until the tenant reaches 18. A Landlord wishing to avoid such a result – but wanted to accommodate a minor – must therefore do so by providing them with non-exclusive accommodation because exclusive possession is the necessary hallmark of a tenancy. The way to provide non-exclusive accommodation is of course for the under 18 occupier to be an authorised occupier rather than a tenant.

What we should do

So what has to happen is that the proposed Guarantor actually has to take the tenancy in their name. Clearly this cannot be an AST as the property not only will not be their main or principal residence (which it has to be to be an AST) but they are not even going to be living there. So at Castle Estates we would grant a Common Law Non 88 Act tenancy to the person who was to be guarantor but now becomes the tenant and then let them give permission to nominate the minor as an authorised occupier. Such permission to occupy is not a legal interest in land so not covered by the Law of Property Act 1925..

03Aug 2010

Property Landlord Advice: The Best Letting Agent in the world.

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By Steve Roulstone

 Property Letting has come of age in the last ten years, certainly when you consider the amount of legislation which has been introduced, from the Commonhold and Leasehold reform act of 2002, through the Housing Act of 2004 and the implications on legislation for Houses of Multiple Occupation, Tenancy Deposit Scheme, Housing Health and Safety ratings system and The Home Information Pack to name a few.

 Landlords first and foremost.

But none of this has changed what we set out to do as Letting Agents. Namely, Rent a property! But not just that, as agent of the Landlord, we look at renting property with our duty of responsibility to the Landlord, correctly, uppermost in our actions.

 Agreement from Castle Estates

Residential Lettings now requires a level of professionalism never before seen in a property agent and at Castle Estates we believe that it is right and proper that the bar has been lifted and we all seek to give increased levels of service to match what Landlords rightly seek in today’s competitive market.

 Our aim is the same.

Whether a stand alone Lettings Agent, or part of a group of National Letting Agencies Landlords expect us to both be aware, and able to advice not only on legislative changes, but also on issues surrounding rulings made as the legislation finds it way in to the courts and ‘Test Cases’ reach completion.

 Make the move together.

So at Castle Estates we promote the notion that when Letting Agency is referred to as an industry, that people see more and more that we are both professional in knowledge and outlook. So I look forward to the day that all Property Agents are striving for the title of the Best Letting Agent in the world.

30Jul 2010

Landlord Rights: The Power of Ground 1 in an Assured Tenancy

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By Mike Edwards

The Problem

There is a serious misunderstanding in some local authority/housing association housing departments when tenants approach them for advice if have been served a section 8 notice not for arrears possession under Ground 1.

This would usually happen on full Assured which are of course less common than Assured Shorthold but which carry the same mandatory possession rights for Landlords. Provided of course the legal paperwork is correct!!

The Misunderstanding

The problem understandably is that the section 21 notice used to terminate an Assured Shorthold on mandatory grounds is far more commonly used and recognised. But a section 8 notice using mandatory Ground 1 (previous or future occupancy by Landlord or spouse) is equally as powerful and also compels a Judge to grant a Possession Order.

This misinformation and confusion is happening a little more frequently as more Landlords quite legitimately use ATs to avoid the rigours of the TDP regime and the uncertain outcome of dispute resolution by scheme adjudicators. If difficulty is encountered take the following steps:-

The Solution

1.         If a section 8 notice is issued to a tenant draw their attention to the two sets of bullet point
             notes. The first in the group foot of page 1 make it clear that if ground 1 is quoted in section 3
            of the notice then it is a mandatory ground and the Judge must grant an order.

2.         The first bullet point then on page 2 immediately under the date in section 5 states how much
            notice is needed – again for ground 1 it is 2 months (as with a section 21 notice)

3.         In reality there is no difference between a s8 ground 1 notice and a s21 notice. Both are
            mandatory and provided the legal paperwork is in order the Judge MUST grant an Order (as
            stated in the notices)

Many local authorities, housing associations and even some solicitors who are not Landlord and Tenant law specialist misunderstand the mandatory power of a Ground 1 section 8 notice. So it is always good advice to use a solicitor who is either recommended or advertises as a specialist in this field. One would hope this would avoid the problem, or of course you could always use Professional Management!

10Jul 2010

Property Landlord Advice: When is an HMO not an HMO?

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By Steve Roulstone
 
Never! 

 There has been a lot of confusion caused by the Housing Act of 2004, where HMO property is concerned as introduced in April 2006 surrounding licensed buildings, but the changes are actually simpler than they first appear.

 To license or not to license?

 This is the real question for Landlords and the real crux behind the changes. It is also where a clear definition of what represents a House of Multiple Occupation. Conversely, it is also this area that has given rise to the biggest area of confusion amongst Landlords and the mistaken belief that if there house does not match these criteria, that HMO regulations can be ignored.

 Two families and the Council decide.

What all Landlords need to be aware of and appreciate is that any property that has more than two families living at the property (More than two families represented who are not co-habiting) as their permanent address, then as far as the Council are concerned, it is an HMO! Maybe not one that needs a license, but as far as safety is concerned and this can mean Fire doors and surrounds, Fire walls and escape windows, then the Council will in all probability order that such safety measures are installed for the safety of the Tenants.

The Council decides, or not!

And here is the next problem facing all Landlords. Not all Councils take the same view or level of safety when considering identical styles of property! Prior to its introduction I spoke to and worked with my Council, who independently of other areas, decided to take a review of all property that they believed was operating as an HMO through there register of student homes in the Town. This gave me both an insight and early approach to both the knowledge needed and ensuring my Landlords, existing and new, were well informed.

Confident letting.

 So what my advice to all Landlords is, if you are renting to more than two family units, then your local Council will definitely consider it to be a House of Multiple Occupation. Unless it requires licensing by number of stories or people residing, then you could be forced to take appropriate changes to the safety of the building as your Council sees fit, so take advice first and speak to the Council before you find out the hard way!

Steve Roulstone

23Jun 2010

Franchise News: Agent Registration To be or not to be – That is the question?

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By Steve Roulstone

 

Agent Legislation – A missed opportunity?

Our new Government have announced that they will not be pursuing the recommendations of the Rugg Review from last year and there will be no professional registration for Letting Agents. The recommendation that all Landlords be required to register will also be dropped.

Door still open for lack of Knowledge.

This could be a lost opportunity as at the very least, other Agents who look to the rental sector for income when other income falls away, would have at least be forced to carry out the role with a minimum of qualification and letting agents who do cut corners would be held to account.

Professional Agents.

But will this change effect the Professional Agents in our Industry, certainly for us at  Castle Estates as we saw this situation, as a possibility to be seen as professional leaders within our Industry? This aim will not change, but we will now wait with interest to see exactly how our Professional bodies react and for this I will be looking at ARLA and NALS for positive leadership.

Government reaction

It was stated by the Housing Minister Grant Shapps that he was ‘Putting Councils on alert’ that they should pursue Landlords and Agents who do not look after their Tenants or Properties and act unethically and that Councils should ‘Use the range of powers already at their disposal’ in doing so.

Time to step to the mark.

But will they? And what will our Governing bodies do to promote such action? This is definitely where I will be placing my time in both speaking with my own Council, with whom I have had both contact and a working relationship for many years, in particular during the introduction of HMO regulations and ARLA and NALS in asking what policy they will pursue in ensuring that Councils carry out their role and police the Rental sector as directed.