Latest insights from our experts

Posted 3 September 2014
by Simon Sanger-Anderson

Tozers housing law newsletter – autumn 2014

Trees

We all love them – especially in the hot summer we have just enjoyed. But there are issues with maintaining them.

The recent case of Stagecoach South Western Trains v Kathleen Hind and Andrew Steel has looked at what the land owners’ responsibility is regarding a tree.

The tree in question was an Ash, growing in the defendant’s garden. The tree had split and was growing from three stems, one of which had fallen prior the defendant purchasing the property.

One windy (gale force), cold, snowy night in December the eastern stem of the tree also fell. It fell onto the railway and was subsequently hit by a train, causing damage to the train. The claimants were suing for that damage.

Ms Hind, a gardener had inspected the tree a number of times since moving into the property and found it had a healthy crown and no excessive dead wood. She had also instructed a tree surgeon, including Mr Steel to inspect the tree and no cause for concern was raised. It was subsequently found that the trunk was weakened through decay which was not visible as it was covered in ivy.

The High Court decided that Ms Hind was not negligent. She had carried out periodic informal/preliminary inspections of the tree. There was nothing about the tree which would have put her on notice that a more detailed inspection should have been carried out by an arboriculturist or the tree should have been removed. The court stated that as a reasonable and prudent landowner she was not required to carry out inspections of the trunks of apparently healthy trees.

To be taken from this case is the need to observe the trees within your properties. This could be done on tenancy inspections or even when the gas servicing comes around. Tenant’s need to be informed that if there are any signs that the tree is not 100%, such as bald patches or dead wood, they need to take action, and at the very least inform you so that as a landlord you can ensure that the tree is not about to cause damage to your property or that of a neighbour. The same goes for any trees in the neighbourhood (e.g. trees on the road may be the responsibility of the council). If someone has spotted a problem and not reported it then that reduces the chance of being able to recover for any damage the tree causes.

For any further guidance on this topic there is a National Tree Safety Group (we kid you not). Their website has guidance on the common sense management of trees.

When is a year not a year? A note on rent review clauses

Most tenancy agreements now have rent review clauses in some form or another. Some refer to s13 Housing Act 1988 stating that the rent will be reviewed in line with the statutory provision. Others have their own provisions, thereby opting out of s13 HA 88 procedure. Neither are wrong, but problems arise when they are not interpreted and applied correctly as one housing association has recently found out.

This is a matter that took place in Bedford County Court. The housing association was Bedford Pilgrim Housing Association. The issue was whether the rent increases were done in the correct timeframe. The slightly worrying aspect of the matter was that the same scenario had arisen in a case last year and the association had failed to amend its practices in the intervening period.

The tenancy agreement was phrased that the rent was to be reviewed every year upon the giving of 4 weeks’ notice to the tenant. There was no issue that 4 weeks’ notice had been given as the landlord had gone over and above the requirements by giving notice in the prescribed form under s13 HA 88.

The issue arose over what constitutes a year. Most people would say 52 weeks. However, 365 days (or 366 in a leap year) is more (just) than 52 weeks. As the landlord had set a fixed date every year to increase the rent it meant that some years the increases were done before the passing of a full year.

The landlord initially got an outright possession order on Ground 8 (the tenant was acting in person). After the hearing he obtained legal advice and the order was appealed. It settled before the hearing so the court never got to decide whether the rent was lawfully raised each year.

It is arguable that the rent was not lawfully raised in this instance due to the shortened period that is not quite a calendar year of 365 days. However, the shortfall represents 0.14 of a week (or 0.29 of a week in a leap year). Having gone back to maths we calculate this to be 23 hours 52 minutes for a 365 day year. The question is whether the court will really interfere with such a minor adjustment.

There will be people who say that for long term tenants this begins to represent a large amount of time where they are paying rents over what they have contracted to do so. But this date will fluctuate and in a 4 year period will balance itself out. This will account for the missing time in each cycle (i.e. the rent review date for 2014 was 7 April, which is 371 days from 1 April 2013).

If you are using the statutory system either because that is what you have written into your tenancy agreement, or because your tenancy agreement is silent on rent review then you do not need to worry about the issue of a year as the rent is increased every 52 weeks, accept for where there is more than 6 days between the rent review date and the anniversary of the first review. In this scenario it is 53 weeks, thereby putting everything back into kilter.

Equality and Human Rights Commission

You may, or may not, be aware that the Equality and Human Rights Commission publishes various guidance notes regarding the application of the Human Rights Act and the Equality Act. Of interest to housing providers will be the recently updated notes on:

  1. Human rights at home: guidance for social housing providers
  2. The essential guide to the public sector equality duty.

Both of these were updated in June 2014 and can be found at:

http://www.equalityhumanrights.com/private-and-public-sector-guidance/public-sector-providers/human-rights-guidance/human-rights-at-home/guidance-for-social-housing-providers

Tenancy deposits

Whilst very few social landlords take tenancy deposits, for those who do, the interpretation of ss213-215 Housing Act 2004 by the courts is making compliance tougher and you need to remain aware of your obligations.

If you take a deposit you are to register it with an appropriate scheme within 30 days and provide to the tenant with the prescribed information regarding how their deposit is being held.

Depending on the scheme the deposit is held with, there may be additional information that the landlord also needs to supply.

The recent case of Gardner v McCusker in Birmingham County Court has considered the issue of whether the requirements need to be complied with afresh when the tenancy converts from a fixed term AST to a statutory periodic AST.

Previous case law had addressed issues when the original tenancy was entered into prior to the deposit scheme being introduced. In this case however the tenancy was issued after the deposit scheme was introduced and the landlord had complied with all the requirements of the scheme.

The court found that as the tenancy had converted at the end of a fixed term to a statutory periodic AST that the deposit protection obligations had to be repeated therefore the landlord should have re-registered the deposit and re-served the prescribed information within the 30 day period.

As the landlord had failed to do this at all they were ordered to pay 2 times the amount of the deposit to the tenant.

It is important that if you take a deposit that you comply with the requirements of registration and the provision of information. You need to not only provide the prescribed information but ensure that the information also covers the requirements of the scheme with which the deposit is held.

There is a light at the end of the tunnel for landlords as the Deregulation Bill – currently before the House of Lords – would seek to remedy this mischief by expressly stating that landlords do not have to re-register deposits should a new fixed term tenancy be entered into or the fixed term tenancy convert to a statutory periodic tenancy.

Prevention of social housing fraud – new regulations

To enable social housing fraud to be tackled more effective new regulations have been made under the Prevention of Social Housing Act 2013. These regulations, known as

The Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 2014) came into force in April 2014.

Under these regulations local authorities have the power to obtain data about tenants from phone companies, banks, credit companies, water companies, electricity and gas providers and water companies.

The information may be obtained in order to investigate housing fraud as defined by the Act. The types of fraud included are:

  • unlawfully sub-letting or parting with possession of a dwelling let by social landlords
  • obtaining housing under Part 6 or Part 7 Housing Act 1996 fraudulently
  • fraudulent applications for right to buy or right to acquire.

Although the regulations only give the power of officers of the local authority to make the request for the information from the relevant bodies, the aim of the Act is to enable the detection and prosecution of fraud against all types of social landlords. Government funding has been given to local authorities for this purpose.

In the National Fraud Authority report, a recommendation was made that more local authorities should provide a fraud investigating service to housing associations in return for nomination rights to homes recovered. It stressed the need for joint working.

Where there is not already an agreement in place between the housing association and the local authority, with the introduction of these new regulations it may well be worth trying to establish a collaborative working relationship with the local authority to maximise the benefit of them for housing associations.

A bit more Article 8

Croydon LBC v McNally, Angus and Veerasamy [2014] EWCA Civ 526

These are three related matters where the tenants had been given tenancies as a term of their employment so that they could carry out their jobs. All three were made redundant in 2011. Upon being made redundant they negotiated a collective agreement that there was no obligation on the council to rehouse them.

When they subsequently failed to leave the properties, possession orders were made.

The tenants appealed on the basis that Croydon LBC had not addressed Article 8, the judge was wrong to say that the case was not exceptional and the judge wrongly focused on the proportionality outcome of the case and did not take into account the council’s conduct.

The application to appeal was dismissed.

Sims v Dacorum Borough Council – Supreme Court

We reported on this case last year when it was before the Court of Appeal. It concerned the scenario where a joint tenant had given notice on the tenancy ending it for both parties. The remaining tenant was Mr Sims. This decision upheld that in Hammersmith and Fulham London Borough Council v Monk.

Mr Sims decided to appeal to the Supreme Court and the matter was heard during the week of 23 June. He appealed on the basis that:

  • the decision in Monk was not compatible with Article 8 (right to a family life) and Article 1 Protocol 1
  • In any event the decision in Monk should be reversed.

Whilst the judgement has not yet been published it has been reported that the court is likely to grant permission to appeal and then dismiss the appeal upholding the decision in Monk. Thereby deciding that Monk is good law and one joint tenant can end a tenancy.

Reasonableness

Croydon LBC v Cooper [2014] EWCA Civ 295
The defendant was a secure tenant. There had been ongoing complaints of anti-social behaviour (noise, fighting, property being used as a drug den) since 2001. There was a hiatus in 2013.

An outright possession order was made. The defendant challenged the judge’s decision that it was not reasonable to suspend the order, due to the cessation of ASB in 2013. The judge had found that there was a clear pattern of behaviour and the defendant was not remorseful for the behaviour.

The defendant was refused permission to appeal on the basis that the judge had taken into account all relevant factors when deciding to make an outright order. This is a reminder that an appeal to the Court of Appeal is not a re-hearing of the case.

Further advice 

Please contact our housing team at Broadwalk House, Southernhay West, Exeter EX1 1UA
call: 01392 207020 or email: has@tozers.co.uk


Tozers LLP’s bulletins are no more than an immediate response to a recent decision (or other legal development), intended to help recipients keep up-to-date with information which may interest them without needing to await publication of more considered material. Recipients should, therefore, seek advice on any specific matter if proposing to take action in consequence of any such bulletin.

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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