Housing Law Bulletin - Issue 276 – 13 August 2012

Monday 13 August 2012

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The Latest Housing Law News

Mortgage default: on 9 August 2012 the Council of Mortgage Lenders published its latest figures for properties repossessed by its members. They show that 8,500 properties were repossessed in April-June 2012. For the details, click here. A leading academic forecast has suggested that repossessions are likely to remain at relatively low levels as a result of low interest rates. For a copy of New Forecast Scenarios for UK Mortgage Arrears and Possessions, click here.

Possession claims: the latest court statistics, published on 9 August 2012, indicate that 15,050 mortgage possession claims were issued over the three months April-June 2012. In the same period there were 36,190 landlord possession claims issued, of which nearly 23,000 were issued by social landlords. For the full figures, click here.

Shortfalls of housing benefit for under-occupation in social housing: the UK Government has issued a new circular to help local authority housing benefit departments apply the new rules on reduced benefit from April 2013 arising from the introduction of the size criteria for working age social sector tenants. For copies of the Circular HB/CTB A4/2012, click here.

Leaseholds in Scotland: on 7 August 2012 the Long Leases (Scotland) Act 2012 received Royal Assent. It is an Act of the Scottish Parliament designed to convert many long leases into ownership; to provide for the conversion into real burdens of certain rights and obligations under such leases; to provide for payment to former owners of land of compensation for loss of it on conversion; and for connected purposes. For a copy of the Act, click here.

The Latest Housing Case Law

Fuller digests of most of the cases noted each week in this Bulletin appear in an online indexed and searchable database edited by Jan Luba QC and called the Case Law Digest. For details of that service, click here.

Sumal & Sons (Properties) Ltd v London Borough of Newham [2012] EWCA Crim 1840
8 August 2012

The defendant landlords failed to obtain a licence to let a property in an area designated by Newham Council for selective licensing. On a prosecution brought by the council, the magistrates' court convicted and sent the matter to the crown court for sentence. It imposed a sentence that the defendant (1) be fined £2,000 (plus a Victim Surcharge of £15.00); (2) be ordered to pay prosecution costs of £3,821.96; and (3) be subject of a confiscation order of £6,450.83 representing the rent collected while the property had no licence. The defendant appealed to the Court of Appeal. It rejected an argument that the case should not have been referred to the crown court. It upheld the fine in full (providing useful remarks in support of significant fines for such offences). It allowed the appeal against the confiscation order because the rent had not been proceeds of crime but proceeds of the tenancy agreements, the very granting of which had triggered the obligation to obtain a licence. The costs order would stand but be reduced to £3000. For the full judgment, click here.

HSE v Waheed Ahmid and Farhat Basharat
6 August 2012

The defendants were husband and wife and were private landlords. They let a property in 2009. Some years later, following an inspection by a council officer, a gas safety investigator was called-in and found serious faults with appliances and fittings throughout the property. He also found evidence of carbon monoxide fumes and decommissioned the boiler, cooker and gas fires classifying them 'immediately dangerous'. The appliances and flues had not been checked annually by a registered gas engineer, they had not been maintained in a safe condition as required by law, and the tenant had never been given a copy of the gas safety record. Following guilty pleas in a prosecution brought by the HSE, both were given three month sentences, suspended for 12 months by Sheffield Magistrates' Court. Ahmid was also ordered to undertake 150 hours of community service and pay £2,500 towards prosecution costs. Basharat was ordered to undertake 200 hours of community service and pay £5,000 in costs. For more details of the prosecution, click here.

Complaint against Norwich Council
2 August 2012

The council owned one of two semidetached houses which it let to tenants. The other house was privately owned. When the council's tenants left, the property was found to have serious structural defects and the council resolved to demolish it. The private owner engaged solicitors and other professionals to deal with matters arising from the demolition and he offered to buy the demolished site. The council later decided to sell the house at auction as it stood and it was not demolished. The Local Government Ombudsman found that had a 'best value' decision been taken at an earlier stage it was likely that a decision to sell by auction would have been made and the owner's costs associated with the proposed demolition might have been avoided. A recommendation was made that half the professional fees be reimbursed with a further payment of £1000. For the full investigation report, click here.

R(C) v North Tyneside Council [2012] EWHC 2222 (Admin)
1 August 2012

The claimant was a disabled adult living with her parents and was in receipt of employment and support allowance (ESA) and disability living allowance (DLA). She also received community care services from the council and it assessed her as liable to pay a weekly charge. The council refused to take into account any charge for board and lodging payable to her parents but would have taken such a charge into account had the parents been receiving housing benefit reduced by way of a non-dependent deduction. The High Court held that the council had failed to justify the difference in treatment and its decision was quashed. For the judgment, click here.

Complaint against Dover City Council and Kent County Council
31 July 2012

A homeless 16 year old boy, who had previously been in care and had drug-related issues, applied to the council as homeless in January and June 2009. The council should have accepted the applications and applied a joint protocol agreed with the county council for dealing with homeless children in need. The Local Government Ombudsman found that: (1) in January 2009 the housing officer should have accepted he was homeless and provided suitable temporary accommodation. The failure to do so was contrary to law and so maladministration. The housing officer did not follow the Joint Protocol and did not contact Kent Council's children's services. This was also maladministration; (2) in June 2009 a specialist housing officer did not accept him as homeless. This was contrary to law and so maladministration. She took a month before contacting social services. This was contrary to the Joint Protocol and was maladministration; (3) the council did not give him written decisions about his homelessness and he could not, therefore ask for a review or appeal. This was contrary to law and so maladministration; (4) the council twice offered bed and breakfast. This was contrary to statutory guidance, contrary to what it says is its own policy, and was maladministration; (5) the council did not help him go on the housing register until June 2009. It offered him a flat two months later. The failure to help him register in January 2009 compounded the maladministration of refusing to treat him as homeless; (6) after offering a flat the council was obdurate in refusing - for four weeks - to accept Kent Council as a guarantor. There was no evidence that it considered other options or the impact of its position on a young man who was still a child, living alone in a tent and suffering physical and mental ill health as a result. It only changed its position when Shelter intervened and threatened legal action. The Ombudsman recommended that the councils between then pay £10,100 compensation. For the full investigation report, click here.

South Tyneside Council v Ciarlo [2012] UKUT 247 (LC)
25 July 2012

The council was the landlord of 702 separate dwellings that it had sold on long leases under the right to buy. It sought to recover, by way of service charges, a proportion of the management fee it paid to its ALMO for the management of those properties by apportioning part of the fee it paid to the ALMO for managing all its housing stock. A Leasehold Valuation Tribunal held that the council could not recover a flat rate across-the board charge but would have to show how much actual management fee was attributable to each property type within the 702 leaseholds. The Upper Tribunal allowed the council's appeal. The formula adopted by the council had produced a 'careful and reasonable apportionment' of the global management costs across the entire stock and the service charges were recoverable. For the judgment, click here.

Liverpool Quays Management Ltd v Moscardini [2012] UKUT 244 (LC)
25 July 2012

A property management company sought to recover, through service charges, legal costs it had incurred in respect of legal advice about action that could be taken against the developer of its blocks of flats in relation to structural defects. The Leasehold Valuation Tribunal held that no provision in the leases entitled the company to recover those charges. The Upper Tribunal dismissed the company's appeal in respect of that item. The legal advice did not relate to matters of "maintenance" or the "running" of the property (which the lease did cover) but was about prospective action the leaseholders themselves might take against the developers. For a copy of the judgment, click here.

Green v 180 Archway Road Management Co Ltd [2012] UKUT 245 (LC)
23 July 2012

The lease of a flat obliged the tenant to pay 25% of the sum for which the building was insured. The lease required that the insurance be taken out in the joint names of the landlord and tenant. The tenant disputed liability to pay insurance premiums for five years. The Leasehold Valuation Tribunal held that she was liable. The Upper Tribunal allowed an appeal. The evidence showed that in the four most recent years the landlord had taken the insurance only in its own name and in those circumstances could not recover under the lease. For a copy of the judgment, click here.

R(Zahid Khan) v Upper Tribunal (Lands Chamber) [2012] EWHC 2301 (Admin)
26 June 2012

The claimant held a long lease in a block of flats. A resident-owned management company had incurred legal costs of £75,000 in earlier litigation against him.The claimant had referred those costs to a costs judge for assessment and they were reduced to £25,000. The company then sought to recover the full £75,000 from all the residents by way of service charges. A Leasehold Valuation Tribunal held that the lease entitled the company to recover its full costs. The Upper Tribunal refused permission to appeal from that decision. The claimant sought judicial review of the refusal of permission. The High Court refused permission. The £25,000 assessment simply capped what the company could recover from the paying party in the litigation. It did not prevent the company recovering its full costs through the service charges.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2012] August Legal Action 23
For back issues of articles in this series, click here.

Registering individual mortgages in shared ownership schemes
J. Coulter
[2012] 156 Solicitors Journal No.31 p27

Housing Law Events

Autumn 2012

12 September 2012
Recent developments in housing law
A LAG training event in London
For the details, click here.

12 September 2012
Dealing with the housing possession duty desk
An evening seminar in London for HLPA members
For the details, click here.

13 September 2012
Homeless children in Need: Local authorities' duties
A LAG training event in London
For the details, click here.

19 September 2012
Homelessness Update
An evening meeting in London of HLPA
For the details, click here.

20 September 2012
Succession, Mutual Exchange & the Localism Act
An evening meeting in London of SHLA
For the details, click here.

25 September 2012
Localism Act: an update for housing practitioners
A LAG training event in London
For the details, click here.

27 September 2012
Housing Mental Capacity and Disability Discrimination
An evening seminar at Garden Court Chambers
For the details, click here.

28 September 2012
Social Housing Allocation
A Lime Legal Conference in London
For the details, click here.

17 October 2012
How to quantify damages in disrepair cases
An evening seminar in London for HLPA members
For the details, click here.

18 October 2012
Using Mediation to Resolve Housing Disputes
An evening seminar at Garden Court Chambers
For the details, click here.

21 November 2012
Housing Law Update
An evening meeting in London of HLPA
For the details, click here.

21-22 November 2012
New Approaches to Allocations, Lettings & Homelessness Conference 2012
A two-day Chartered Institute of Housing conference in Nottingham
For the details, click here.

22 November 2012
Gypsies and travellers: An Update
An evening seminar at Garden Court Chambers
For the details, click here.

5 December 2012
After the possession order: set aside or appeal?
An evening seminar in London for HLPA members
For the details, click here.

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