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Greene & Greene is a long established firm of solicitors based in Bury St Edmunds, Suffolk. Our lawyers advise individuals and businesses based all over the UK.

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Entries in Professional Advisers (4)

Thursday
Oct012015

New Rules for terminating Assured Shorthold Tenancies

Today (1st October 2015) a number of new rules come into force that govern how and when a Landlord may seek to end an Assured Shorthold Tenancy (AST,) by serving a notice on the Tenant under Section 21 of the Housing Act 1988.

The new rules apply to all “new” ASTs granted on or after 1st October 2015.  After 1st October 2018 the rules will apply to all AST’s.

The Landlord cannot now draft its own version of a Section 21 Notice.  There is now a specific form that must be used (Form 6A, an example of which is set out in the relevant regulations).

In a Section 21 Notice terminating a periodic AST (a rolling tenancy, e.g. one that renews itself from month to month) there is no longer a need for the Landlord to specify the last day of a period of the tenancy as the date on which the tenancy comes to an end.  The Landlord can choose any date it wishes, provided the minimum (usually 2 months’) notice is given.  The maximum notice that can be given is 6 months (in most cases - see below).

A Section 21 Notice is only valid for 6 months from the date it was given.  That is unless the AST is a contractual periodic tenancy, with a period of more than 2 months, in which case it is valid for 4 months’ from the date for ending the AST given in the Section 21 Notice.

A Section 21 Notice cannot be served within 4 months of the start of the AST (unless it the AST is a direct replacement for a previous AST, and the Tenant has been in occupation for more than 4 months).

Before a Landlord can serve a Section 21 Notice on the Tenant, the Landlord must:-

  1. Protect the Tenant’s deposit by registering it with an authorised Tenancy Deposit Scheme (TDS) provider, and send certain information (called the “prescribed information”) about the deposit and the TDS to the Tenant, within 30 days of receiving the deposit (this has been a requirement since 2007); and
  2. Provide the Tenant with copies of the following documents:
    1. An energy performance certificate for the premises,
    2. A gas safety certificate for the premises, and
    3. A copy of the Department for Communities and Local Government’s booklet entitled “How to Rent: the checklist for renting in England”.

The Landlord (or its agent) must ensure it retains proof that the above have been sent or provided to the Tenant at the start of the AST.  Best practice would be to retain copies which have been signed by the Tenant.

 The new rules also prevent so called “retaliatory evictions” by Landlords.  A Section 21 Notice is now invalid if:

  1. Before the Section 21 Notice is served the Tenant has made a written complaint to the Landlord regarding the condition of the premises or common parts; and
  2. The Landlord has not responded to the Tenant’s complaint, or its response is inadequate, or a Section 21 Notice was served following the complaint; and
  3. In addition the Tenant then complained to the Local Housing Authority about the same, or substantially the same, disrepair as the complaint to the Landlord; and
  4. The Local Housing Authority had then served a “relevant notice” on the Landlord in relation to the Tenant’s complaint.

If the Local Housing Authority serves a “relevant notice”, then the Landlord is also prevented from serving a Section 21 Notice on the Tenant for 6 months from the date that the “relevant notice” is served upon it.  A “relevant notice” is an improvement notice or notice requiring remedial action, sent to the Landlord under the Housing Act 2004.

Importantly, the “retaliatory eviction” restrictions do not apply if:

  1. The Tenant is in breach of its duty to use the premises in a tenant-like manner, or any express provision in the AST to the same effect;
  2. The premises are genuinely on the market for sale;
  3. The Landlord is a private registered provider of social housing; or
  4. Where a mortgagee requires vacant possession to exercise its power of sale under a charge that predates the AST.

It remains to be seen whether some Tenants will try to use these new provisions to delay being evicted from the premises, by making unsubstantiated and unjustified complaints about the premises or common parts.  The result may be that Landlords will serve a Section 21 Notice without giving any prior warning to the Tenant whatsoever. 

Assuming the Landlord has successfully managed to navigate all of the above, if the Tenant leaves of its own accord on or by the date given in the Section 21 Notice, the AST will come to an end on that date.  If Court proceedings are necessary, the AST will end when the Tenant has been evicted.  The Landlord must now reimburse the Tenant for any rent paid in advance that relates to any period falling after the end of the AST.

If you would like to discuss this further, please contact Sam Cook at Greene & Greene who specialises in tenancy disputes and all legal aspects of renting property.  Sam can be contacted at samcook@greene-greene.com or 01284 717434.  For more information about Greene & Greene please see www.greene-greene.com and follow @greenegreenelaw.

Monday
Aug032015

Tenancy Deposit Schemes – Agents Beware!

Agents should already be aware that it is necessary to register any deposit received from an Assured Shorthold Tenancy (AST) on a rented residential property with an authorised Tenancy Deposit Scheme (TDS) provider, sending the “Prescribed Information” to the tenants within 30 days of receiving the deposit (the TDS requirements).

However, changes have been made.  Until recently it was necessary to repeat the TDS requirements when the fixed term of an AST expired, or when a replacement tenancy (or extension) was granted to existing tenants.  Since the passing of the Deregulation Act 2015 that is not now necessary, provided that:

  1. the landlord, tenants and TDS provider remain the same;
  2. the property remains substantially the same; and
  3. no extra deposit is paid.

Landlords and agents can still find themselves in difficulty.  Here are four potential problem areas:

  1. When a new tenant is added or removed, or the ownership of the property changes (perhaps because someone has passed away, because a relationship ends or the freehold is sold) the TDS requirements must be repeated.  This is easily overlooked.
  2. Where the tenancy started before 6 April 2007 (when the TDS requirements first began) but the fixed term ended after that date (defaulting to a periodic tenancy), landlords and agents had 90 days from 26 March 2015 (until 24 June 2015) to comply with the TDS requirements (i.e. register the deposit and send the Prescribed Information), unless the tenancy had already ended or the deposit had been paid back.  Agents that did not conduct a review of their lettings in order to ensure they were not caught out should still do so, because late compliance is better than no compliance.
  3. Where the fixed term of the tenancy ended before 6 April 2007, the TDS requirements must be complied with before a Section 21 Notice (to end the tenancy) can be sent to the tenants (on which see below).
  4. Where there has been compliance with the TDS requirements, but a landlord or agent has not retained appropriate proof.  A common example is where an agent received the deposit, but an employee who has left the company dealt with the Prescribed Information, no copies have been kept, and there is no record of it having been sent to the tenants.  We have seen this scenario cause significant problems for landlords and agents.

The sanctions for failing to comply with the TDS requirements are that:

  1. any Section 21 Notice sent before the TDS requirements have been complied with is invalid, and cannot be used to evict the tenants.  This can be very costly for a landlord whose tenant has ceased paying rent, particularly if it is only discovered that the Section 21 Notice is invalid after Court proceedings have been issued to evict them; and
  2. a tenant can apply to Court for an order that a landlord, or an agent that dealt with the deposit, returns the deposit in full and pays a fine of between one and three times the value of the deposit.  This application is most readily made by tenants when Court proceedings are issued by the landlord to evict them and is therefore often made against the landlord rather than the agent.  However, it is not just the landlord's problem.  An agent that is to blame for non-compliance with the TDS requirements may be liable to the landlord for any loss the landlord suffers as a result.

While the recent changes to the law have made navigating the TDS requirements easier, agents still need to keep their wits about them.  If there is a potential problem with historic non-compliance, agents in particular will want to ensure that it is identified before any notice is served or Court proceedings issued.  Compliance is essential in order to minimise any potential financial loss or breakdown in the relationship with the landlord, not to mention the risk of bad publicity.

If you think you may have a problem with the TDS requirements and would like to discuss this further, please contact Sam Cook at Greene & Greene who specialises in tenancy disputes and all legal aspects of renting property.  Sam can be contacted at samcook@greene-greene.com or 01284 717434.  For more information about Greene & Greene please see www.greene-greene.com and follow @greenegreenelaw.

 

Wednesday
Nov202013

Expert witnesses: reasons to take care

Any professional who accepts expert witness instructions should by now be familiar with the Supreme Court’s decision in Jones v Kaney which removed the immunity that had protected expert witnesses for 400 years.

Although an expert witness is required by the Civil Procedure Rules (CPR) to be independent, owing a primary duty to the Court, it is now clear that he also owes a duty of care to the Client on whose behalf he is instructed.

Following the revisions to the Civil Procedural Rules, that came into effect in April this year to implement the recommendations of the Jackson Report, experts must now pay particular attention to the requirements of case management timetables. It is being made quite clear by the Courts that deadlines must be observed and sanctions for non-compliance can include the debarring of a Client from placing any reliance upon expert evidence and even the striking out of a Client’s case. Therefore expert witnesses must comply with any Court imposed deadlines, whether they relate to the production of a report, the participation in an experts’ without prejudice meeting, the provision of a joint statement and the answering of questions from the parties. Any failure to do so could have catastrophic consequences in relation to the instructing Client’s case and leave the expert facing a claim for breach of contract and negligence.

Michael Batty and Andrea Nicholls provide small group training to professionals who act as expert witnesses and would be delighted to discuss your requirements. Michael Batty can be contacted on 01284 717414 ~ michaelbatty@greene-greene.com. Andrea Nicholls can be contacted on 01284 717531 ~ andreanicholls@greene-greene.com.

Monday
Jan282013

Professional privilege remains the privilege of lawyers … for now, at least

The Supreme Court has confirmed that, for the time being at least, legal professional privilege applies only to communications between clients and their lawyers, not their other professional advisers, such as accountants or tax advisers.

Wayne Perrin, a Solicitor in our tax department, comments as follows:

“Privilege” means that communications between a client and his legal adviser are generally private.  A client can discuss his case in full with his lawyers, without fear that the information will later be made available to others without his control. Legal privilege has its roots in the sixteenth century and has not been altered greatly in the past five hundred years. 

The Supreme Court case involved a tax scheme promoted by the accountants PriceWaterhouseCoopers.  As part of their investigations into the scheme HM Revenue and Customs, relying on statutory powers given to them by Parliament, required disclosure of correspondence and advice sent by PWC.  PWC refused, claiming that those documents should remain private between them and their client; that they were “privileged”. 

The Supreme Court decided that they were not.  It has confirmed that privilege only applies to communications between a client and his lawyers; not his other advisers, even where they are advising on legal matters. 

In due course the case may lead to further lobbying by professional bodies to press for a change in the law by Parliament. Whether the government will give some assistance is another issue.  In the current climate and given the particular subject matter of this appeal, that may be regarded politically as a step too far.

Of course, in the twenty-first century, advice is offered by all kinds of professional advisers in the course of their business. Many are not lawyers. For the time being at least, they will need to continue to remind their clients that their advice remains potentially disclosable.”

Wayne Perrin | wayneperrin@greene-greene.com | T: 01284 717454 | www.greene-greene.com

As a dual qualified solicitor and chartered tax adviser, Wayne works with a wide variety of clients, from individuals to companies. He has recently advised on estate planning and Inheritance Tax mitigation for individuals, as well as advising on partnership structures, particularly for the agricultural sector.

Also find Wayne on:      Google +        LinkedIn