Housing Law Bulletin - Issue 308 - 29 April 2013

Monday 29 April 2013

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**** STOP PRESS: in a new departure, the Editor of this Bulletin (Jan Luba QC) has entered the twittersphere as @JanLubaQC. Follow him for daily housing law updates. ****

Housing Law News

Enforcing housing standards: in the private rented sector this task falls to local environmental health practitioners. The Chartered Institute of Environmental Health (CIEH) and the University of Greenwich has just published a collection of papers by several leading practitioners covering a range of private sector housing conditions including poor standards, overcrowding, HMOs, housing and health, empty properties and many more. For a free copy, click here.

Legal aid for housing cases: while the new arrangements about the scope of legal aid are bedding-down the Legal Aid Agency is publishing the answers to questions about the new scheme raised by suppliers with their contract managers. For the housing-related FAQs, click here. Barristers undertaking legal aid housing cases may find assistance in the Bar Council's new free guidance booklet on changes to civil legal aid. For a copy, click here.

Housing complaints: since 1 April 2013 most complaints about the activities of local councils in respect of social housing have fallen within the jurisdiction of the Housing Ombudsman. But not all. The Local Government Ombudsmen retain jurisdiction in respect of homelessness, allocation schemes, housing advice services and more. For a handy topic list of 'who covers what', click here.

Housing options: on 22 April 2013 the Chartered Institute of Housing published How to... maximise housing options and advice. The free briefing note considers the importance of a strategic approach that covers all the available housings options and that helps to ensure the best possible use of all available homes. For a copy, click here.

Homelessness: on 22 April 2013 the House of Commons Library published updated editions of its two key briefing notes on homelessness. For a copy of Homelessness in England Standard note SN01164, click here. For a copy of Homeless households in temporary accommodation (England) Standard note SN02110, click here.

Affordable housing agreements: since 25 April 2013 it has been possible for builders and developers to apply for release from "section 106 agreements" requiring them to provide affordable housing as part of new build schemes. That is the result of Growth and Infrastructure Act 2013 section 7 which introduced a new section 106BA of the Town & Country Planning Act 1990 on the day Royal Assent was granted. For a copy of the 2013 Act, click here.

Rough sleeping: on 24 April 2013 the UK Government invited bids for the final share (£3.5m) of the £20m Homelessness Transition Fund. The Fund offers grants of up to £150,000 to invest in innovative new ways of preventing and tackling rough sleeping. A further £500,000 will be available to help protect and enhance essential services for single homeless people. The closing date is 21 May 2013. For further details, click here.

Private Renting: on 23 April 2013 the House of Commons Library published an amended version of its briefing paper The regulation of private sector letting and managing agents (England), Standard note SN06000. For a copy, 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.

Salvesen v Riddell
24 April 2013

A method of avoiding security of tenure for agricultural tenants had been developed by landlords in Scotland. In 2003, legislation was enacted which closed the loophole. In part, the change had retrospective effect so as to apply to circumstances in which landlords had given notice prior to the new law. A landlord complained that this provision unlawfully interfered with his human rights as protected by Protocol 1 Article 1 of Human Rights Act 1998 Schedule 1. The Supreme Court said that "As a minority group landlords, however unpopular, are as much entitled to the protection of the Convention rights as anyone else" and found that the provision was incompatible with the landlord's rights. It granted a 12 month suspension of its order to enable new legislation to be formulated. For the judgment, click here.

Johnson v Old [2013] EWCA Civ 415
23 April 2013

A landlord served a Housing Act 1988 section 21 notice on an assured shorthold tenant and sought possession. The tenant's defence was that the notice was invalid because a deposit paid had not been protected by a deposit protection scheme. The tenant had paid both a sum in respect of a 'deposit' (which had been protected) and a further lump sum of £6000 equivalent to the whole of six months' rent. The agent transferred the rent to the landlord monthly from that lump sum. The Court of Appeal held that, on the particular wording of the tenancy agreement, the lump sum was not a further 'deposit' for the purposes of the Housing Act 2004 and therefore did not require protection. For the judgment, click here.

Croydon LBC v Allan [2013] All ER (D) 200 (Apr)
23 April 2013

The council applied for an ASBO as a result of the defendant's anti-social behaviour. It invited the court to make a series of 10 prohibitions. The magistrates' court made a four year order with multiple prohibitions. The defendant appealed contending that the prohibitions were in part too wide, lacked precision or were unnecessary. The High Court allowed the appeal in part - upholding the order but modifying or removing several of the prohibitions.

Singh v Sangherea [2013] EWHC 956 (Ch)
22 April 2013

The claimants took over a supermarket with living accommodation above. They lived at the property and ran the shop. They had paid £60,000 to the leaseholder. The freeholder forfeit the leaseholder's lease by re-entry and took possession. The claimants sought damages for unlawful eviction and breach of contact. The High Court held that the eviction had not been unlawful because: (a) the claimants had no interest binding the freeholder (because the agreement for a sub-lease or assignment of the lease was void because it did not comply with section 2 of the Law Reform (Miscellaneous Provisions) Act 1989); and (b) neither the head lease nor their own right to occupy was for residential purposes, even in part, so they were not covered by the Protection from Eviction Act 1977. Because there had been a total failure of consideration, they were entitled to return of the £60,000 on the basis of unjust enrichment. For the judgment, click here.

Barnet LBC v Peter Savva
19 April 2013

In 2009 the council made an Empty Property Grant of £18,285 to the defendant to help with improvement to his empty property to enable it to be let. The grant was on the condition that the council provide tenants to occupy the property for three years after the improvement works were finished. The defendant only completed part of the agreed improvements and the council brought a claim for breach of the agreement. At Clerkenwell and Shoreditch County Court the defendant was ordered to pay back the grant with added interest, amounting to £10,917.91. He was also ordered to pay £13,460.32 in legal costs. For the details, click here.

Twinmar Holdings Ltd v Klarius UK Ltd [2013] EWHC 944 (TCC)
19 April 2013

This was a dispute between a commercial landlord and tenant as to whether roof lights, which had reduced in translucence between the start and end of a lease, were "in repair" and "good and substantial condition". The judge found that they were not. The judgment contains helpful consideration of the meaning of the term "window" and of the proper date for assessment of the required standard of repair which may assist in housing disrepair cases. For the judgment, click here.

Haringey LBC v Mehmet Parlak
2 April 2013

The defendant was the private landlord of unlicensed HMOs. Following successful prosecutions for operating the HMOs without a licence, the council applied for rent repayment orders. A residential property tribunal ordered the defendant to repay £32,278 of housing benefit payments. For further details, click here.

Dennis Rye Ltd v Bolsover DC [2013] EWHC 1041 (Admin)
22 March 2013

For 10 years, local residents had complained to the council about the effects of smoke resulting from the company burning waste on its land. In 2010 the council served an abatement notice under the Environmental Protection Act 1990. Following two fires in November 2010 and January 2011, the council prosecuted for breach of the notice. The company was convicted at trial and appealed to the High Court. It said that there was no evidence that the two fires had caused nuisance because no local resident had complained about them. The appeal was dismissed. On the evidence led from environmental health practitioners, the trial court had been entitled to find that the fires would have emitted noxious smoke which would have created a nuisance to adjoining occupiers.

Wandsworth LBC v Sweeby [2013] EWCA Civ 435
20 March 2013

The late Mrs Sweeby had been a secure council tenant. She died in September 2009. The defendant, her grandson, claimed that he had succeeded to her tenancy because he was a member of her family who had resided with her through the 12 months prior to her death. The council did not believe the residence period had been met and brought a possession claim. A district judge found that the defendant had lived at the property for substantially less than 12 months and granted the order. A circuit judge dismissed an appeal. The Court of Appeal refused permission for a second appeal. The district judge had been engaged in an "entirely classic fact-finding exercise". The appeal did not have the slightest prospect of success and could not surmount the test for a second appeal.

Accord Mortgages Ltd v Cameron [2013] ScotCS CSIH 31
14 March 2013

The defendant was a mortgage borrower in arrears. The lender sought possession and an order for sale. The issue was whether it would be reasonable to evict. An order was granted and an appeal dismissed, The Court of Session dismissed a second appeal. The lower courts had considered the defendant's financial circumstances as a whole in reaching their decisions. His inability both to pay and to reach settlement was one of the major factors in considering whether the order ought to be granted. He had attempted unsuccessfully to negotiate settlement over a prolonged period and appeared to be unable to fulfil his obligations for the foreseeable future. The decisions reached had been the only ones that could reasonably have been reached. For the judgment, click here.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2013] April Legal Action 41
For back issues of articles in this series, click here.

Owner-occupiers law review 2013
D. McConnell
[2013] Legal Action 37
For a copy, click here.

Landlord & Tenant update
T. Shepperson
[2013] 157 Solicitors Journal No.16 p27
For a copy, click here.

Rights law is an asset (Article 8)
G. Peaker
[2013] Inside Housing 26 April
For a copy, click here.

Read the small print ("good repair" or "good condition")
N. Asprey
[2013] 163 New Law Journal 13
For a copy, click here.

Housing Law Books

Housing Allocation and Homelessness (Third Edition) by Liz Davies and Jan Luba QC was published recently. For information on how to get the book, click here.

Housing Law Events

15 May 2013
Using the Equality Act
A HLPA Members Meeting in London
For the details, click here.

20 May 2013
Homeless Children - safety net or freefall?
A Shelter Children's Legal Service Conference
For the details, Email: Londonlegaladmin@shelter.org.uk

22 May 2013
Social Housing Law & Practice
A Lime Legal training conference in London (speakers include Jan Luba QC)
For the details, click here.

23 May 2013
Housing Disrepair
A LAG training event in London (speakers include Beatrice Prevatt)
For the details, click here.

23 May 2013
Practical Tips for Possession: The View from the Housing Possession Duty Desk and Exceptional Funding under LASPO
A Garden Court Evening Seminar (speakers include James Bowen + Connor Johnston)
For the details, click here.

19 June 2013
Housing Law: the Legal Update 2013
A Northern Housing Consortium Conference in York (speakers include Liz Davies and Jan Luba QC)
For the details click here.

20 June 2013
Defending Possession Proceedings
A LAG training event in London
For the details, click here.

21 June 2013
Homelessness Conference 2013
A Lime Legal training conference in London (speakers include Liz Davies and Jan Luba QC)
For the details, click here.

27 June 2013
Social Housing Tenancy Agreements
A Lime Legal training conference in London (speakers include Jan Luba QC)
For the details, click here.

3 July 2013
Recent Developments in Housing Law
A LAG training event in London
For the details, click here.

27 July 2013
Allocations: the New World
A HLPA Members Meeting in London
For the details, click here.

 

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