News

• Mar 01

  Defective Premises

  In the case of Rogerson v Bolsover District Council, a lady stepped backwards while mowing the lawn and fell through a large manhole cover in the grass. The manhole was actually owned by Severn Trent water and was part of the main sewer system, even though it was on the landlord’s land. The lady won her case in the county court, lost on the appeal and appealed to the Court of Appeal. The tenant won in the Court of Appeal and the landlord was liable to pay damages for the accident. There are two significant things to come out of the case.

  
  

  Firstly the property had been inspected in 2013 just before the tenant moved in and again in 2014 as part of a standard 10 year asset management inspection. However, there were no meaningful records of either visit and members of staff involved were not longer working for the local authority by the time of court hearing limiting access to first hand evidence. Therefore, the first lesson is that visits to the property should leave an audit trail that remains even after staff changes or the business is sold.

  
  The second lesson is the consideration of what should be reviewed when visiting the property and the “technical” understanding of the person who did the inspection. Section 11 repairs generally need the tenant to notify the landlord of the need for repair before a liability arises. This claim was under the Defective Premises Act. Two significant differences between this legislation and section 11 are that Defective Premises Act applies to the whole property (not just the house) so included the drain in the garden, and there is no need to be notified of the problem. This lack of the need to be notified is a great example of why periodic visits to the property are an important part of the management. This is not just about seeing the carpet is vacuumed or the flower beds weeds, there are some serious technical building issues to consider and someone with appropriate knowledge should undertake them.

  
  

  Whilst the fact of this case were a little unusual, in having a main sewage tank in the garden, the underlying principle about liability under Defective Premises Act is very real. Other cases where the same legislation has been used include gas safety (before the Gas Safety Regs, but therefore could be used for oil fired or solid fuel heating) and a garden wall falling over and causing injury. Thorough checks and details records are the only defence. At the end of the day some things may be impossible to detect and this is probably the most important reason landlord’s should always ensure they are adequately insured.

  
  

• Feb 11

  Fitness for Human Habitation

  The Homes (Fitness for Human Habitation) Act 2018 was passed on the 20 December 2018. It starts taking effect three months later from the 20 March 2019. Basically any new tenancy granted after this date, including renewals and statutory periodic tenancies arising, will have to comply with the legislation from the renewal. If the tenancy was running periodic from before 20 March 2019 then you will have to comply with the new rules from 12 months later, i.e. the 20 March 2020. If a fixed term tenancy is running before 20 March 2019 then as long as the fixed term tenancy continues it remains outside of the legislation, regardless of the fixed term (see the next point though). The rules for when this new rule applies very closely mirror the section 11 repairing obligations (and it is, of course, in the same legislation). therefore it does not apply to fixed terms of in excess of seven years, provided the landlord cannot break the fixed term before seven years. Also the landlord is not required to keep fit for human habitation any thing the tenant has damaged, fire, flood etc and things the tenant is entitled to remove from the property.
  
  As the TFP tenancy counts as a fixed term tenancy (based on Goodman v Evely [2001] EWCA Civ 104) this should mean that those on TFP tenancy agreements before 20 March 2019 will have for as long as those agreements last before having to comply.
  
  This will new law will require a landlord to let, and keep a property fit for human habitation (regardless of rent level). In addition to the old list in section 10 of issues that would make a property not fit for human habitation they have now added the 29 HHSRS hazards as reasons for not being fit for human habitation. It is this latter point that causes the most concern as there is no prescribed standard, e.g. it must not have any category one hazards. This means that a landlord will not have any certainty about committing an offence until the judge decides if it is fit or not.
  
  The rules remain unchanged in Wales, meaning effective the fitness for human habitation concept does not apply (due to the very old rent thresholds).
  We will be talking about this on our Legal Update 2019 course.

• Dec 03

  New Form 6A advice

  Law can be very complex and a superficial reading of it can be dangerous. For some months we have been working on the effect of the Deregulation Act 2015 when we get to October 2018. Section 41, dealing with the transitional provisions, states that section 33-38 and 40 come into force for pre-October 2015 tenancies from 1 October 2018. This is what we are all expecting.
  
  However, it is not as simple as this. Section 33 and 34 deal with retaliatory evictions, and these will come into force on the 1 October 2018 for tenancies created before 1 October 2015.
  
  Section 35 deals with the periodic notice not needing to expire at the end of a period of the tenancy. This will come into force for all assured shortholds from 1 October 2018. Section 36 deals with not serving in the first four months and though technically it will apply, it will have no practical effect.
  
  Section 40 deals with the requirement for a pro rata rent refund if the section 21 notice expires part way through a period for which rent has been paid. This will apply to pre-October 2015 tenancies from 1 October 2018.
  
  Section 41, the transitional provisions, specifically exclude section 39 from ever applying to the pre-October 2015 tenancies and as this is the requirement to give the How to Rent Guide, this makes sense.
  
  The tricky bit is sections 37 and 38 as both of these are "prescribed" items. 37 is the prescribed form, Form 6A, and 38 is the prescribed legal requirements (currently gas and EPC). The important thing with these is that the regulations that prescribe these two things start by saying the regulations only apply to post October 2015 tenancies, therefore excluding all the pre-October 2015 tenancies. We have been in dialogue with MHCLG about this for some months, even suggesting how to edit the Form 6A (which specifically says it doe snot apply to pre-October 2015 tenancies), and how they might edit the regulations. With Parliament in recess and little legislation being passed in September when the party conference season is on, time was running out to resolve this. We have now been told that there is no intention that the Form 6A and gas/EPC requirements will apply to pre-October 2015 tenancies come October 2018. This is something of a change in understanding and will bring its own confusion. Much as many agents are expecting the changes to apply to pre-October 2015 tenancies from October 2018, so are many solicitors and probably judges too. It will be important for agents to be able to explain why they do not apply (because the regulations say they don't apply) if it is questions in court or by the local authority.
  
  
   

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