Latest insights from our experts

Posted 19 February 2016
by Simon Sanger-Anderson

Housing law newsletter Winter 2016

Disrepair, Damages and Non-Occupation – Moorjani v Durban Estates Ltd

Can you claim damages when you are not living in a property?

The answer is yes. However, they will be reduced, in this case by 50% of what would have been awarded had the person remained in the property.

The history to this matter is that in 2005 the property was flooded from the flat above as a result of a breach of the Landlord’s repairing covenant. Later that year the property was re-instated, as were the common areas, but the Lessee complained that the repairs were not done to a sufficient standard.

In 2006 the property was affected by another leak and in 2007 the Lessee got his own contractors in to remedy the disrepair. He returned to the property in 2008 (his absence was not due to the disrepair). In 2011 he claimed damages from the Landlord. The Judge at first instance only allowed damages for the period from 2008 – 2011. On Appeal the Court said that damages could be awarded for the earlier period as loss of amenity was suffered, it was just that as the Lessee had moved out for unconnected reasons her damages would be reduced for not being there. Therefore, not being at the property was not a bar to recovering damages.

Leases and Costs

There have been a couple of recent cases on whether the Lessor can recover costs under a Lease (we are talking about leases over 7 years, but this is applicable in principle to all leases regardless of duration). The reported cases are those of Fairbairn v Etal Court Maintenance Ltd and Geyfords Ltd v O’Sullivan & Ors.

Both matters arose where the Landlord had lost in Court and then tried to recover his Court costs (and in Fairbairn also the costs he had had to pay the successful tenant) through the service charge provisions in the lease.

The respective leases had fairly standard clauses regarding the recovery of costs to do with the maintenance and administration of the buildings. Geyfords had a clause allowing the recovery of legal costs – but only where it related to a s146 Notice (issued pursuant to forfeiture proceedings).

In both cases the Court said no to the Landlord, demonstrating that unless there was a provision allowing for the recovery of these costs then they could not be recovered.

Immigration Act 2014

The Immigration Act 2014 came into force nationwide on 1 February 2016.  Part of this Act makes it an offence for a landlord to allow a person who is disqualified due to their immigration status/nationality to occupy residential premises for the payment of rent. The occupation may be via a tenancy or sub-tenancy, lease or sub-lease or licence.   The legislation requires landlords to carry out checks as to the eligibility of a prospective tenant or a tenant renewing their tenancy.

There are certain specified documents that should be checked to carry out the duty. These are listed in the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014. On 1 February 2016 this is amended by the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) (Amendment) Order 2016.

Social Landlords are exempt from this requirement where the accommodation is let under Part 2 Housing Act 1985 (Local Authority letting properties) and Part VI & VII Housing Act 1996 (allocations and housing of homeless). This legislation already covers the checks that are brought in by the Immigration Act.

Some Social Landlords let properties (particularly properties which are hard to let) to individuals outside of the scope of the Housing Acts e.g. by advertising them to the general public.  In these circumstances the Social Landlord will be required to carry out the checks required by the Immigration Act 2014 to ensure eligibility of the prospective tenant and all occupants.

Where a tenancy agreement allows for the sub-letting of the tenancy (or lease) the tenant will be responsible for carrying out the necessary checks.  Where the tenant is required by a term in the tenancy agreement to seek consent, then consent should only be given subject to the required checks being carried out by your tenant. It is important that as a social landlord you do not start to assume responsibility for carrying out these checks.

Where a Social Landlord is approached by a sole tenant who wishes to add another person to their tenancy agreement, checks must be carried out to check the prospective tenant’s eligibility to rent in the UK.  The Localism Act 2011 amended the Housing Act 1996 by inserting a new clause which prevents a Local Authority or social landlord from granting a joint tenancy to a person subject to immigration control within the meaning of the Asylum and Immigration Act 1996.   Therefore social landlords do have a duty to check the immigration status of someone applying to be added to a tenancy.

The Government has published guidance notes on what documents are required to be produced.

Amendments to this Act are imminent under the Immigration Bill currently before Parliament. It is anticipated that the offence of letting a property to an ineligible person may result in a prison sentence of up to 5 years.

Rights of a Spouse where the tenancy is in a sole name

Mrs Taylor had a tenancy in her sole name. She left the property and gave a notice purporting to terminate the tenancy. Mr Taylor raised various issues in Defence of the claim. Particularly before the Court of Appeal was the issue of whether the Family Law Act gave him a right to occupy the property and that right was protected by the European Convention on Human Rights.

Following the previous decisions, the Court of Appeal said not and confirmed that when Mrs Taylor had terminated the tenancy Mr Taylor had no right to remain in the property. Derwent Housing Association Limited v Taylor.

Practice Points

Mandatory Possession and the Court

It is a truth universally acknowledged, by housing lawyers at least, that mandatory possession does not always mean that the court will make an outright order.  We find that even straight forward claims require all our advocacy skills to convince a Judge that they must make an order for possession.  This got us thinking that if we find it hard, our clients probably find it harder so here are our tips for dealing with these cases.

For the Notice:-

• When dealing with rent arrears always plead Grounds 8, 10 and 11 in your NoSP
• When dealing with Ground 7A, plead grounds 12 and 14 (where it is appropriate to do so)
• If serving more than one NoSP make sure all additional NoSP’s have covering letters clearly stating that the NoSP is served ‘without prejudice to any other notice’
• When serving your notice write to the tenant to:-

o Tell them why you are serving the notice/seeking possession even if you are simply repeating the information in the notice,
o Invite them to make representations within a specified time (14 days is fine) about their personal circumstances or other things that they wish the landlord to consider in deciding whether to proceed with the possession claim.

• If you receive such representations, they should be considered (preferably by a Manager).  The sort of thing that should be considered are:-

o Any disabilities or other vulnerabilities and whether those disabilities or vulnerabilities relate to the reason why you are seeking possession.
o Whether there are any additional steps you could take to help the tenant sustain the tenancy.  If there are additional steps, is it reasonable you should take those steps given the cost, use of resources, extent of arrears, etc.

• Tell the tenant your decision (in writing) and reason for the decision.

For the claim documents:-

• Always make it clear in your claim that you are relying on all the grounds set out in your NoSP(s) but that the non-mandatory grounds are considered to be an alternative to the mandatory grounds.  In your witness statement or summary, you should include the following:-

o Whether you offered the tenant the opportunity to make representations and whether they did.
o That if representations were made, they were considered,
o Reasons for bringing the claim
o Copies of any relevant documents should be attached.

The hearing can be tricky for those not experienced in this type of claim.  Often, you will have to deploy all your charm and persuasion.  A Judge, faced with an upset, possibly vulnerable, tenant is going to be extremely reluctant to make the call that leads to the tenant being, potentially, homeless.

• Be firm and be clear on the law. Take copies so that you can refer the Judge to them
• If the tenant raises a potential human rights or disability defence, the judge has three options:-

o Make an order
o Adjourn with directions
o Dismiss the claim

Guess which one the Judge will do . . .  adjourn.  This then becomes a frustrating situation all round.  In all likelihood, the case is heading towards an expensive contested trial.  Alternatively:-

• You could try to persuade the judge that the claim is not genuinely disputed on grounds which appear to be substantial (see Civil Procedure Rules, Part 55.8(2))
• If you have invited representations but there were none, you might be able to argue that it would be unfair for the tenant to raise issues now that could have been raised earlier and prevented the claim in the first place or
• You can suggest that maybe the judge considers making a suspended possession order based on Grounds 10 and 11 instead just so you walk away with an order rather than empty handed.

Good luck.  We are always happy to provide clients and non-clients with training in this area.

Litigants in Person

The Court of Appeal recently dealt with an issue where a Claimant Litigant in Person made admissions to the Defendant’s solicitor. At Trial the Defendant sought to rely on these admissions and was allowed to do so.

On Appeal it was decided that the discussions were covered by the without privilege doctrine and that they should not have been before the Trial Judge. A re-trial was ordered.

What this means is that where you are discussing a case with a Defendant who is acting in person those discussions should not be directly referred to in Court unless it is the express intention of both parties at the time that they would be.

Team news
Our team is changing.  On 7 March 2016 Nicola Rumsey, our paralegal, is unfortunately leaving us. In her place Adele Atkinson has joined the team. She began working with us on 8 February and is looking forward to meeting everyone.

Further advice

Please contact our specialists, Sarah Schooling, Jenny Lloyd, Nicola Rumsey or Adele Atkinson
Call: 01392 207020 or email: has@tozers.co.uk

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About the author

Simon Sanger-Anderson

Partner

Partner and solicitor within the employment team, Simon also leads the firm's cross departmental Social Housing Practice Group