Housing Management Law School Spring Term Newcastle | Leeds | - - PowerPoint PPT Presentation

Newcastle | Leeds | Manchester

Housing Management Law School – Spring Term

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Housekeeping

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Agenda

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8.30am Registration 9.00am The News 10.15am Refreshment break 11.00am Deregulation Act 11.45am Networking

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The News

John Murray, Partner

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Legislation and guidance: what's new? » Updated guidance on anti-social behaviour powers published

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Legislation and guidance: what's new? » Impact note on the effect of the Secure Tenancies (Victims of Domestic Abuse) Bill 2017-19 published

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Legislation and guidance: what's new? » Building a Safer Future: Interim Report

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Legislation and guidance: what's new? » Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill

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Possession of a property let on an assured tenancy » Teign Housing v Lane [2018] EWHC 40 (QB)

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The importance of continuing review… » Declan Ahern v Southern Housing Group Limited [2017] EWCA Civ 1934 (28 November 2017)

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The importance of continuing review… » Scarville v LB Lewisham (County Court at Central London, 21 August 2017)

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Periodic Tenancies: are they renewed or granted? » Walcott v Jones & Jones. Central London County Court, 15 November 2017

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Housing Benefit: » Secretary of State v Carmichael [2018] EWCA Civ 548

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Human Rights: succession » London Borough of Haringey v Simawi and another [2018] EWHC 290 (19 February 2018)

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Possession and section 11, Children Act 2004 as a defence » Davies v Hertfordshire CC EWCA Civ 379

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And finally… Data Protection

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Health and Safety – Post Grenfell

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Health and Safety after Grenfell Background: » July 2009 Lakanal House fire : 6 deaths » Coroner made a number of recommendations »Encouraging RPs to retrofit fire sprinklers in tower blocks »Government to review fire safety guidance accompanying building regulations »LACORS guidance » June 2017 Grenfell Tower fire : 71 deaths » Hackett Review » Grenfell Inquiry

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Health and Safety after Grenfell » Grenfell Inquiry: Sir Martin Moore – Bick » Lines of Enquiry » Grenfell's original design, construction and composition » Whether Building/Fire Regulations were complied with » Modifications made to the building (exterior and interior) over the years and whether they were compliant » Fire and Safety measures within the building at the time of the fire » Inspections carried out » Governance, Management and fire safety.

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Health and Safety after Grenfell » Grenfell Inquiry : Sir Martin Moore – Bick » Lines of Enquiry (c'td) » Communications: »Could residents report their concerns about fire safety; »What response did they get? » Did government act upon recommendations from inquiries inquests and experts. » Examine tower block fires in other countries/ construction of affected buildings. » Cause of fire: construction, condition, other factors.

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Health and Safety after Grenfell » Could our law be better? » November 2017: “Closing the Gaps” »Shelter Commissioned Report »Law Depts of Universities of Bristol and Kent » The law relating to health and safety in homes is: » piecemeal » outdated » complex » Tenure dependent » patchily enforced

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Health and Safety after Grenfell » Relevant Laws for Health and Safety in the Home » Building and Fire Safety Regulations » Main legal provisions for »fire safety being built into new/significantly modified buildings »how we manage fire risk. » Lakanal Coroner recommended regulations be clear and comprehensible to readers.

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Health and Safety after Grenfell » Building and Fire Safety Regulations » Regulatory Reform (Fire Safety) Order 2005 »common parts of multi occupied buildings /shared parts of HMOs. »Person in Control (not Fire Authority) responsible for identifying /assessing fire risk. » Previous legislation required fire authorities to certify designated premises. » Fire Risk Assessments (FRAs) »Carry out on a regular basis »again if significant changes eg alterations or extensions.

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Health and Safety after Grenfell » Building and Fire Safety Regulations » Concerns » Cost of experts » Qualifications/accreditation of Fire Risk Assessors. » Subjective process: buildings often both unique and complex. » Difficult for tenant to question /challenge quality and effectiveness of fire safety measures. » No centralised control » Chain of accountability difficult to determine » Communication re fire drills/what to do in an emergency can be patchy. » Who is accountable for failures in fire safety regulation?

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Health and Safety after Grenfell

» The Landlord and Tenant Act 1985 » s8 Implied terms as to fitness for human habitation. » (1) In a contract to which this section applies for the letting of a house for human habitation there is implied, notwithstanding any stipulation to the contrary— » (a) a condition that the house is fit for human habitation at the commencement

• f the tenancy, and

» (b) an undertaking that the house will be kept by the landlord fit for human habitation during the tenancy. » ) » . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . » (3) This section applies to a contract if— » the rent does not exceed the figure applicable in … subsection (4)

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Health and Safety after Grenfell

» S10 : criteria to determine fitness » Repair, » Stability, » Freedom from damp, » Internal arrangement, » Natural lighting, » Ventilation, » Water supply, » Drainage and sanitary conveniences, » Facilities for preparation and cooking of food and for the disposal of waste water; » None of these matters touch on fire safety » Rent levels in s8(4) so low (£52 per annum, £80 in London) - this law pretty much redundant.

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Health and Safety after Grenfell

» s11 Repairing obligations in short leases. » In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor— » (a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes), » (b) to keep in repair and proper working order the installations in the dwelling- house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and » (c) to keep in repair and proper working order the installations in the dwelling- house for space heating and heating water.

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Health and Safety after Grenfell » Limitations of s11 » The obligation to repair creates no obligation to improve, renew or replace, unless an inherent defect will cause repeated problems. » Properties with design defects, or dangerous features posing a risk to health will not breach this legislation.

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Health and Safety after Grenfell

» Housing Act 2004 » Part 1 of the Housing Act 2004 : the Housing Health and Safety Rating System (HHSRS) » Covers a variety of potentially dangerous aspects of residential property: » inadequate heating systems » dampness, condensation, and mould growth » rats, cockroaches and other infestations » broken glass, falling plaster, or dangerous or decaying stairs » faulty or dangerous gas or electrical installations » blocked drains or problems with rubbish or sewage » unacceptable noise levels » damaged asbestos » smoke fumes or gases.

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Health and Safety after Grenfell

» EHO determines serious hazard: duty to take action. » Tools: » hazard awareness notice – warning Landlord council aware of problem » improvement notice: Landlord to carry out repairs/improvements » Order closure of/restricting number of people who live in the property » emergency action: do repairs and reclaim costs » order to demolish the property » Buy property under the compulsory purchase rules. » Disadvantages: » Complexity » Subjectivity » lack of enforcement » not used against local authorities.

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Health and Safety after Grenfell » Environmental Protection Act 1990 » Statutory Nuisance: premises likely to be prejudicial to health. » Proceedings are very speedy. » Brought by EHO of Local Authority or tenant can lay private prosecution » Magistrates can order works to be done, fine, costs and compensation » Tenure neutral » Not commonly used » Magistrates Court is not the best forum to deal with housing issues.

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Health and Safety after Grenfell » Homes (Fitness for Human Habitation) Bill » Private members bill » a requirement of all tenancy agreements that » a home is fit for human habitation » judged against modern standards » while used as a home » liability on a landlord for failing to make it so.

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Health and Safety after Grenfell » Section 4 Defective Premises Act 1972 » Owner of a Property has a Duty to take care as reasonable to see persons safe from personal injury. » Ought to deter Landlords allowing buildings to be in a dangerous state. » Will provide a cause of action after the event » Unlikely to be a tool that can be used to put a property into a safe condition.

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Health and Safety after Grenfell » The Problems with Leasehold » Responsibilities » Control » Fire Doors » Gas appliances » Compartmentalisation » Access » Payment

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Health and Safety after Grenfell » Conclusion » Law is not fit for purpose. » Old and out of date; » Does not provide appropriate remedies for modern concerns; » Enforcement is variable; » At least some of it is of symbolic value only » Tenure/post code lottery » Desperately requires reform.

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Health and Safety after Grenfell » The Future » Legislation » Grenfell demonstrated need for »a major culture change in regulation of health and safety in homes »Consolidation, update and reform of law

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Health and Safety after Grenfell

» Research recommends legislation: Housing (Health and Safety in the Home) Act » all relevant law in one place; » Drafted to be understandable to ultimate consumers (landlords and occupiers); » Empower occupiers. » A much needed statement that the state: » Has learned from the tragedies at Lakanal and Grenfell » Accepts a role is to act on health and safety concerns of tenants and other

• ccupiers.

» A range of reforms to clarify and strengthen the obligations upon the state and upon landlords to ensure that, in people’s homes, rigorous health and safety standards are maintained and give occupiers greater voice and ability to enforce their concerns.

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Health and Safety after Grenfell » The Future » Fire safety: » Greater duty on independent fire authority to make recommendation » Fire Risk Assessors to be competent and accredited. » Fire safety Regulations should be enforceable by a wider range of parties: » occupiers » Environmental Health Officers » Joined up working :Fire Rescue Authorities, social landlords and EHOs » Legislation should make clear where responsibilities for fire safety lie.

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Health and Safety after Grenfell » The Future » Building regulations: » Regulations must be comprehensible to readers and deal with the interface between the various types of building requirements.

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Health and Safety after Grenfell » The Future » Access: » Landlords /regulators should have rights of access to all properties on reasonable notice to check for potential health and safety breaches, irrespective of provisions in agreements to the contrary or silence in those agreements.

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Health and Safety after Grenfell » The Future » Housing Court? » patchwork nature /lack of underlying rationality of the adjudicatory space. » Housing Court mooted by Secretary of State for Communities. » Larger role of the First Tier Tribunal (Property Chamber)? » Specialist personnel » Long experience of inspecting premises.

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Any questions? John Murray Partner | Property Litigation E: john.murray@wardhadaway.com T: 0113 205 6670

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Revision Topic: S.21 Housing Act 1988

Simon Thirtle, Associate

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Introduction » Deregulation Act in force since 1 October 2015 » Significant impact upon Assured Shorthold Tenancies (ASTs) » Further impact later in 2018

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Overview of the Act » SS. 30-32: tenancy deposits » SS. 33-41 relevant to rented property » Protect tenants » SS. 33 – 41 are applicable to all ASTs granted on or after 1 October 2015 » But it will apply to all ASTs from 1 October 2018

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Headline changes

» Amendments to the tenancy deposit regime » New provisions in relation to notices ending ASTs under Section 21 of the Housing Act 1988 (s. 21 notice) » The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 » Retaliatory evictions » Prescribed form S.21 notice (form no. 6A) » Timing » Statutory right to claim back any unused portion of rent

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Assured Shorthold Tenancies » The Act does not affect ASTs granted prior to 1 October 2015 » This includes tenancies which became a statutory periodic tenancy after 1 October 2015 » The rules will apply to all ASTs from 1 October 2018, whenever they were granted

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Termination – Current Position for pre 1 October 2015 ASTs » S.21(1)(b) Housing Act 1988 – terminating a fixed term AST: » Serve notice to terminate on expiry of fixed term » At least 2 months notice in writing, no requirement to expire on certain day » Can be served before the fixed term expires » Do not have to use prescribed form 6A

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Termination – Current Position for pre 1 October 2015 ASTs » S.21(4)(a) Housing Act 1988 – terminating a periodic AST: » At least 2 months notice in writing, to expire on the last day of a period

• f the tenancy – so notice may be longer than 2 months

» Order for possession can't take effect earlier than 6 months after the beginning of the tenancy » Do not have to use prescribed form 6A » No requirement to specify calendar date » Formula in Lower Street Properties v Jones [1996] 28 HLR 877

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Termination – Current Position for pre 1 October 2015 ASTs » S.21(4)(a) Housing Act 1988 – terminating a periodic AST: » Statutory periodic tenancies arise on expiry of fixed term » Which S.21 notice should be used? » Practical difference? » Spencer v Taylor [2013] EWCA Civ 1600 »

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S.41 Deregulation Act 2015 – Application of sections 33-40 » Apply to ASTs of a dwelling house in England » Granted on/after 1 October 2015 » Not applicable to fixed term ASTs prior to 1 October 2015 » Applicable to all ASTs from 1 October 2018 » Two S.21 notice procedures until 1 October 2018

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Sections 33 – 41 » S 33 new retaliatory eviction rules » S 34 further exemptions to ss 33 » S 35 notice to be provided in relation to ASTs » S 36 time limits in relation to s 21 notices and proceedings » S 37 Prescribed form of s.21 notices » S 38 Compliance with prescribed legal requirements » S 39 Requirement for landlord to provide prescribed information » S 40 Repayment of rent where tenancy ends before end of a period

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Retaliatory Evictions (S.33) » Tenant makes legitimate complaint to landlord about condition of property » Landlord doesn't carry out repairs or give adequate response – serves notice instead » S.34: retaliatory eviction provisions do not apply to social housing providers

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• S. 35 Notice to be provided in relation to ASTs

» S. 35 inserts a new S.4ZA to the Housing Act 1988 » S.4ZA removes the requirement for a landlord to specify in a s. 21 notice the last day of a period of the tenancy as the date on which the tenancy comes to an end » Currently, this only applies to tenancies that started on or after 1 October 2015 » For tenancies that began before 1 October 2015, you can continue to serve 2 months notice under S.21(1)(b) of the Housing Act 1988 if the tenancy had an initial fixed term (Spencer v Taylor (2013)).

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• S. 36 – time limits in relation to S. 21 notices and proceedings

» S. 36 inserts a new subsection 4B to the Housing Act 1988 » A landlord is now unable to serve a s. 21 notice at the start of an AST » In the case of a tenancy which is not a replacement tenancy, notice cannot be served within the first four months of the tenancy beginning on the day when the tenancy began » In the case of a replacement tenancy, within 4 months beginning on the day on which the original tenancy began » All new ASTs now require at least 2 months' notice with no requirement for the AST to end on the last day of the period of a tenancy

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Court proceedings – timescales » A possession claim cannot be issued after the end of 6 months from the date that the S. 21 notice was given » Where the notice period is greater than two months a possession claim cannot be started more than 4 months after the date specified in the notice

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• S. 37 – Prescribed form of S. 21 notice

» S. 37 enables the Secretary of State to make regulations prescribing the form of a S. 21 notice » The Assured Shorthold Tenancies Notices and Prescribed Requirements (England) Regulations 2015/1646 came into force on 1 October 2015 » Regulation 4 inserts a new regulation 3(f)(a) to the Assured Tenancies and Agricultural Tenancies (forms) (England) Regulations 2015 prescribing Form No. 6A

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Form No. 6A » Form No. 6A to be given to end an AST under s. 21 » No obligation to use the prescribed form notice for ASTs created prior to 1 October 2015 but it may be used in these circumstances » The prescribed form must be used to terminate ASTs which started on or after 1 October 2015

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Form No. 6A » Cannot be used where: » The tenant has resided in the property for less than 4 months » The landlord has not complied with the requirements under the Assured Shorthold Tenancies Notices and Prescribed Requirements (England) Regulations 2015/1646 came into force on 1 October 2015

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S.38 – Compliance with Prescribed Legal Requirements » S. 38 inserts a new S.21A – compliance with prescribed legal requirements » S. 21A prevents a landlord from serving a S. 21 notice where it has failed to comply with the statutory obligations as set out in the Assured Shorthold Tenancies Notices Prescribed Requirements (England) Regulations 2015/1646

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Assured Shorthold Tenancies Notices and Prescribed Requirements (England) Regulations 2015/1646

» Regulation 2 provides that the landlord must: » Provide the tenant with a free energy performance certificate; and » A copy of a gas safety certificate » These provisions DO apply to providers of social housing » EPC must be made available to a potential tenant "at the earliest

• pportunity" but no later than:

» The provision of information in response to an enquiry or; » At a viewing

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Assured Shorthold Tenancies Notices and Prescribed Requirements (England) Regulations 2015/1646

» Regulation 2 : Gas Safety Certificate » Copy should be given to a tenant in occupation. 28 day time limit does not apply for purposes of S.21 » Copy of most recent certificate must be given to a new tenant BEFORE they occupy the property

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S.39 – Prescribed Information » S. 39 – Requirement for landlord to provide prescribed information » Inserts a new S. 21B to the Housing Act 1988 - requirement for landlords to provide prescribed information (Regulation 3) » S. 21 notice may not be served when a landlord is in breach of this duty » This does not apply to social housing providers

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• S. 40 Repayment of rent

» Inserts S.21C to the Housing Act 1988 » Provides for repayment of rent where the tenancy ends before the end of a period » » Tenant is entitled to repayment of rent, calculated on a daily basis » Repayment of rent paid in advance for that period » Formula set out in S. 40: R × D P » R - Rent paid for the final period » D - number of whole days of the final period for which tenant was not in occupation » P - the number of whole days in that period

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Why is this important now? » Refresher – difficulties caused by gas safety certificates and EPCs » If non-compliance, can't serve a S.21 Notice » Is late compliance sufficient? It seems not. » Caridon Property Limited v Monty Shoolz, Central London County Court, 2 February 2018 » Only a first instance appeal, so not binding, but… » It was HHJ Jan Luba QC

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What should be done? » Physically give gas safety certificates and EPCs to tenant at viewing or sign up – before they move in » Could display EPC in the property – is it worth the risk?

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What is the position from 1 October 2018?

» Deregulation Act provisions will apply to all ASTs » Must use Form 6A to serve S.21 Notice » No requirement to calculate the end of a period for any AST » What about gas safety certificates and EPCs? » Retrospective effect of legislation and consequences of non-compliance? » Further Regulations may be needed » Suggest giving copies of gas safety certificates and EPCs to tenants before 1 October 2018

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Homelessness Reduction Act and Local Authorities » Why is S.21 of any interest? » Impact upon homelessness duties » Homelessness Reduction Act 2017 in force from 3 April 2018

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S.1: Threatened with homelessness » Further qualification to S.175 Housing Act 1996 » Person threatened with homelessness if they have been served with a valid S.21 Notice and that notice expires within 56 days

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S.2: Duty to provide advisory services » S.179 Housing Act 1996 amended » Local authorities must provide or secure provision of a service that can advise persons who are threatened with homelessness » Includes advising as to validity of S.21 Notice

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S.4: Duties in cases of threatened homelessness » S.195 Housing Act 1996 amended » Duty arises in respect of persons served with valid S.21 Notice » Local Authority can serve notice to end duty if (amongst other things): » It has complied with its duty to ensure that accommodation doesn't stop being available; and » 56 days has passed since the person was deemed eligible for assistance » Irrespective of whether there is still a threat of homelessness

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S.4: Duties in cases of threatened homelessness » Notice cannot be served if: » Person has been served with valid S.21 Notice; » S.21 Notice will expire within 56 days; and » It is in respect of the only accommodation that is available for their accommodation » Local authorities need a working understanding of S.21 and the validity of notices » Manage demand in respect of homelessness needs » Keep people in accommodation

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Any questions? Simon Thirtle Associate | Property Litigation E: simon.thirtle@wardhadaway.com T: 0113 205 6651

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