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Everything posted by Aequitas

  1. I have read the judgement in the case. It can be found here: http://www.consumeractiongroup.co.uk/forum/showthread.php?397677-Lloyds-Default-due-to-PENALTY-charges-going-to-court-under-BCOBS&p=4616355&viewfull=1#post4616355 The essence of the judgement is not that the charges raised were intrinsically unfair, but that the manner in which they were applied was unfair. The judge emphasised that his decision was not of universal application, but dependent on the particular facts and circumstances. See paragraphs 41, 51, 57, and 60. The case holds out hope for those who can show that the over all charges debited escalated because their bank allowed a situation to continue longer than it ought to have been allowed to continue having regard to the facts and the customer's circumstances. There is nothing in the case suggesting there is a way of getting round the Supreme Court decision in the OFT case. It is still the case that banks charges are not contractual penalties or subject to assessment as to their level under the UTCCR. It was always the case that a bank could be challenged for the way it operated an account if it gave rise to excessive charges. It is indeed that aspect which the campaign should have concentrated on.
  2. As Snorkerz has suggested, the legal position is not 100% clear as on the whole a tenancy cannot be rescinded. There is though I believe a right to rescind if you get in very early after the tenancy began. However, I think you need to argue that the tenancy did not begin because you did not take up possession and you at least have an argument that you did not do that. So, tell the agents that you have the right to rescind the agreement. If they look like they really are going to do something about the situation then it may be wise to give them time to do so telling them you reserve your position.
  3. Despite the possession order the owner remains an owner and any tenancy he grants is, as between the landlord and tenant, valid. No fraud is involved. However, if the lender secures possession against the tenant the tenant is entitled to damages for breach of contract, though whether it is worth pursuing a landlord who has a possession order against him is another matter.
  4. If you are on a periodic assured tenancy whether shorthold or not, any provision in the tenancy agreement as to notice is of no effect whilst the tenancy is an assured tenancy - see section 5(3)(e) of the Housing Act 1988. If at the end of the fixed term tenancy you were paying rent monthly then you have a monthly periodic tenancy and need to give a month's notice expiring at the end of a tenancy period (possibly but not necessarily the same as a rent period). If your fixed term ended on 10th October your tenancy periods run from the 11th to the 10th of each month and your notice must expire on the 10th or 11th of a month - better to make it the 10th to avoid argument.
  5. The short answer to your question is that a landlord does not need a reason to serve a section 21 notice. The best you can do is to speak to the office and ask them to reconsider.
  6. In the absence of agreement to the contrary: A notice to quit must comply with the common law rules, in the case of residential tenancies as amended by the Protection from Eviction Act 1977. Ignoring yearly tenancies, the common law rule is that the notice must take effect at the end of a period of the tenancy and must be for a period equal to at least a period of the tenancy. Thus a weekly tenancy requires a week's notice; a four-weekly tenancy four weeks' notice; a monthly tenancy a month's notice; and a quarterly tenancy a quarter's notice - the periods specified being minimum periods. Where the tenancy is residential the Protection from Eviction Act 1977 requires a minimum of four weeks' notice. "The end of a period of a tenancy" means the first or last day of a tenancy period. Notice can be give at any time so long as the period of notice is sufficient and the correct end date is specified. It is possible to do a belt and braces job and add after the end date "...or at the end of the period of the tenancy which will end next after the expiry of one month [in the case of a monthly tenancy or otherwise as the case may require] from the service upon you of this notice". In the case of an oral tenancy the tenancy periods are determined with reference to the frequency with which rent is paid; so, for example, if rent is paid monthly the tenancy is monthly. The tenancy periods will usually coincide with the rental periods, but that is not necessarily always the case; of necessity the first tenancy period must have started on the same day the tenancy started so that all subsequent tenancy periods follow accordingly.
  7. If you sign something thinking it is something else you can plead non est factum (it is not my deed). It has to involve more than simply failing to read the document properly. It has to be a case of signing something that is held out to be different from what it in fact is. The facts here would seem to allow such a claim, but the difficulty is proving them. The standard of proof is high because it would otherwise be all too easy for everyone to plead they were misled or totally misunderstood what they were doing. It helps if you are illiterate.
  8. We can have a debate about whether Britain in the 21st century needs public service broadcasting and, if so, how it should be financed. We can talk about whether the BBC is good value for money. We can express disapproval about methods used to encourage payment of the licence fee. The question I pose though is quite straightforward and no one has answered it. Given that the law is as it is, how should it be enforced? In case there is any misunderstanding I do not think that any of the "powers that be" should have the right arbitrarily to enter your house. Entry without consent should be in circumstances clearly defined by law and only after proper enquiry has been made; the only exception should be the proper exercise by the police of their powers of arrest or to prevent the commission of a crime. So I can go along with the "my home is my castle" routine but not to the extent that the right to privacy is twisted to prevent the detection of crime. What some seem to be saying here is that if a duly authorised person calls and makes enquiries concerning TV licences that he is required to take the occupier's word for it that the premises do not require a licence. If it is said that it should be down to the licensing authority to prove the existence of the equipment how are they to go about it? If they are not to go about it then the payment of the licence fee is down to honest citizens paying it. Further, as I said above, those honest citizens are paying more because the level of the fee is calculated to take account of those who do not pay. Chomerly list things he considers unfair. I could easily add to the list. There are some who argue that road tax is unfair if you only take your car out on Sunday afternoon, others that they should not have to pay national insurance if they have private healthcare and so on. Are we to concede that those who consider any particular tax is unfair should be exempt from paying it? Whatever we may think of the government in power at any given moment, Britain is a democracy and there are really no good reasons for its citizens to refuse to abide by the laws passed by elected lawgivers. Being required to hold a licence to be in possession of television signal receiving equipment is hardly oppressive. If you want to know what oppressive is go and talk to older people brought up in Spain, Portugal, Poland or East Germany.
  9. Fine. I'll run with a lot of what you say. But presumably you do believe people should comply with the law and that the law should be enforced. If so, please answer the question I posed above: What measures is it reasonable to take to ensure compliance with the law?
  10. The present position is that if prescribed conditions are fulfilled you must pay the licence fee. Surely all law abiding citizens liable to pay the fee should pay. Bearing in mind that those who do not pay are effectively stealing from those who do pay because the level of the fee is set to take account of people not paying, what measures is it reasonable for whoever is responsible for collecting the fee to take to ensure compliance with the law? What is the objection those who insist they are not breaking the law have to the collection agency's authorised representative inspecting their premises to see if the law is being flouted? Let people bear in mind that there are strong media interests who want to see the end of the BBC because it sets the benchmark for quality that they have at least to make a token effort to match. The end of the BBC will spell the end of quality - not a problem if you do not want quality. If you read horror articles in The Sun about how the licence fee is collected remember that it is owned by Rupert Murdoch who controls Sky TV. Once the BBC is gone do you think that Sky is going to (i) reduce it prices or (ii) put up its prices? You will end up paying more for less. Never mind the threats about not paying your licence fee, Sky is ruthless in enforcing its rights through the courts.
  11. "A statutory periodic tenancy in line with the Housing Act 1982" is a "rolling monthly lease". The law agrees that it would be unreasonable if all joint tenants on a periodic tenancy had to give notice. That is why the law is as stated in my post above. Google notice to quit joint tenants site:uk and you will find any number of pages confirming the point.
  12. The agents are plain wrong. It is well established law that one of two or more joint tenants can end a periodic tenancy by serving notice to quit. See here for example.
  13. Your position is not good, but not completely hopeless. The starting point is that if there is a written contract it is assumed that it correctly records the intentions of the parties. It is often the case that the parties do not end up where they started when they began negotiating. The courts are reluctant to be taken through the negotiations that led to the contract as it would open the floodgates for all contracts to be challenged. Accordingly, if a contract states something clearly, anyone who asserts that it was not what was intended needs to show the court beyond reasonable doubt that the intentions of the parties immediately before the contract was signed were not correctly recorded. Since you signed a contract with a 12 month term you are are obviously going to have an uphill task persuading a court that it is really a 6 moth term. Do you have anything in writing confirming that 6 months was agreed?
  14. I agree that the charge almost certainly amounts a penalty and is not payable in any event. If you can get a letter from your bank confirming that the instructions were not received until two days before the rent was due it is certainly not payable because that means the agency would profit from its own inefficiency.
  15. The above is nonsense of the purer kind. In your agreement it says: "Both parties agree that this is a twenty four month contract with a twelve month get out clause". If it has no such clause and says no more about how any right to break is to be exercised then there is no right to break. Write back to the agents saying that there is no right to break and that accordingly you intend to stay for the full term agreed.
  16. Agreed. It is not some obscure rule only to be found in a footnote in a 700 page work on landlord and tenant law, but a clear and unequivocal provision in a modern statute that applies to thousands of tenancies. Anyone holding himself out as an adviser on residential tenancies and getting paid for it should know the rule.
  17. There is no statute. You can refer to the case of LEWISHAM LONDON BOROUGH COUNCIL V LASISI-AGIRI where it was held that where a tenant gives an invalid notice (in that case it was a short notice) the handing over and acceptance of keys indicated both parties were bound by the notice.
  18. There are two arguments here. The first is that, as you suggest, the circumstances amount to a surrender by operation of law. The second is that where: (i) a tenant gives a defective notice to quit and (ii) the landlord indicates that he accepts the notice and (iii) the tenant relies on the acceptance and acts to his detriment e.g. vacates or agrees to take other premises then (iv) the landlord's acceptance validates the notice.
  19. If you have been hanging the washing out for 30 years I do not see how the landlord can stop you now.
  20. I should ignore the letters until either you get a solicitor's letter or the property is relet. When that happens come back.
  21. You notice to quit is in fact invalid, so best to keep your head down and pay up to the end of September, though you do still have time to serve a valid notice.
  22. There is no contract until the formalities required by section 2 of the law of Property (Miscellaneous Provisions) Act 1989 have been complied with.
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