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Ed999

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Ed999 last won the day on November 6 2011

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  1. You appear to have admitted that the Omdudsman Service has satisfactorily resolved the complaint you lodged with them. Game over!
  2. My comments only apply if the premises are entirely within England, and you were granted a shorthold tenancy (under which you have exclusive use of a separate dwelling, and the landlord does not live in the same building), and you were over 18 years of age when the tenancy was granted. This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation. The law of full and final settlement is explained at: http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=24_full_and_final_settlement_offers An agreement to accept a lesser amount in satisfaction of a debt is, just like any other type of agreement, only legally binding if all of the legal requirements for creating a valid contract are complied with. Those requirements include an offer, setting out the terms and conditions; an acceptance of that offer, agreeing the proposed conditions; and payment of the settlement amount, and compliance with any other conditions. Also, it is essential that the words 'full and final settlement' are used. In practice, if not in law, it is normally essential to also obtain written evidence of the creditor's agreement to accept the lesser amount. Only a Court can decide what the legal effect of your tenancy agreement is. If the landlord alleges damage, or loss, he must prove it. So if there is no check-in inventory, the landlord often doesn't have a leg to stand on; so the tenant is in a stronger position where there is no check-in inventory. Only the court can decide, depending on the strength, i.e. credibility, of the evidence given by the witnesses, at a hearing; but you have a greater chance of winning that point if there was no check-in inventory. It will also depend on what other evidence might be put before the court though.
  3. My comments only apply if the premises are entirely within England, and you were granted a shorthold tenancy (under which you have exclusive use of a separate dwelling, and the landlord does not live in the same building), and you were over 18 years of age when the tenancy was granted. This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation. Tenancy Deposit Scheme The Tenancy Deposit Scheme (TDS) was created by the Housing Act 2004. The scheme requires a landlord to protect any deposit which is paid on or after April 2007 by a tenant. For full details of the Tenancy Deposit Scheme, see: • http://www.legislation.gov.uk/ukpga/2004/34/part/6/chapter/4 If the landlord does not comply with the requirements of the scheme, a tenant can sue under section 214 of the Act: • http://tenancyanswers.ucoz.com/index/section_214_claims/0-45 The landlord or agent must pay the deposit into a custodial deposit protection scheme, or must hold it in a separate account protected by insurance. The tenancy agreement must state which scheme is to be used, and the circumstances in which all or part of the deposit can be withheld at the end of the tenancy. Housing Act 2004 If the tenancy has ended: you CAN sue for the return of your original deposit; but you CANNOT sue for the statutory penalty of three times the amount of the deposit - except, perhaps, if your claim is made under section 213(5) of the 2004 Act. The outcome is uncertain. It's not clear whether a claim under section 213(5) can succeed after the tenancy ends, nor is it clear whether a landlord can comply with section 213(5) more than 14 days after the deposit was paid. Also, it's likely that a landlord, facing a claim for repayment of the original deposit, will allege disrepair to try to persuade the court to let him keep that deposit. If you paid a deposit, read the FAQs about the tenancy deposit scheme, under which you might be entitled to sue for compensation if the deposit has not been protected, under the Housing Act 2004, if you were granted a shorthold tenancy: • Tenancy Deposit Scheme • Tenancy Deposit Protection - First High Court Decision (Draycott v Hannells Lettings Ltd) • TDS eligibility, implication of breach and legal questions answered A tenant can apply to the Court under section 214 of the Housing Act 2004, on the grounds that section 213(4) or 213(6)(a) or 214(b) has not been complied with. The Court of Appeal decided in the case of Tiensia v Vision Enterprises that if the Landlord protects or repays the deposit even as late as the day of the court hearing, the court cannot award the penalty of three times the amount of the deposit. This was NOT affected by the High Court decision in Potts v Densley (6th May 2011). In Tiensia the landlord had protected the deposit at a time when the tenancy still existed; in Potts the landlord protected it after the tenancy had ended. The Court rejected the tenant's argument that it was too late for the landlord to protect the deposit once the tenancy had ended [see paragraph 55 in the Judgement]. In a further development, the Court of Appeal decided in Gladehurst Properties Ltd v Hashemi (19th May 2011), a case in which the tenancy deposit was never protected, that section 214 of the Act only makes sense if both options contained in it (i.e. return of the deposit or its protection in a TDS scheme) are available to the Court. The Court of Appeal said that this is so only when the tenancy is still in existence, that therefore the penalty for non-protection of the deposit is NOT available after the tenancy has come to an end [see paragraphs 37 and 42 in the Judgement], and that a tenant therefore CANNOT succeed in a section 213(3) claim once the tenancy is over. Tiensia and Potts have to be considered in the light of the decision in Gladehurst; but only time will tell which is the more important decision. The practical effect of Gladehurst is that the tenant must make any claim arising under section 213(3) at the BEGINNING of the tenancy. Remember, a shorthold tenancy can't be brought to an end by the landlord, by notice, in the first six months, nor during any fixed term; and it can't be ended by a section 21 notice at any time after that, either, if the deposit is not protected. Hence, as a result of Gladehurst, a claim under section 213(3) for failure to protect the deposit can ONLY be made BEFORE the tenancy has ended. The Court of Appeal in Gladehurst has overruled the High Court in Potts on this point. If you sue, Gladehurst says the crucial point is whether the court hearing takes place BEFORE or AFTER the tenancy has ended, not whether the tenancy existed when you began the court proceedings. Due to the above-mentioned court decisions, the practical effect of a tenant suing for the statutory penalty is likely to be that a properly advised landlord will protect the deposit, so as to avoid the penalty, if the tenancy still exists. Even though that's not what the court claim asks for, such protection is some benefit to the tenant. Suing for the statutory penalty, or merely threatening to, might cause the landlord to return the entire deposit, without any deductions, thereby resolving a dispute. None of the foregoing prevents the tenant succeeding in a claim for the return of the original deposit (a claim which can only succeed AFTER the tenancy ends, as the deposit is security for non-payment of the rent and for damage caused during the tenancy). The Act expressly states that the parties to the tenancy cannot agree not to protect the deposit [section 213(9)]. So it's futile for the landlord to raise this defence - but many still try to! Alternative Dispute Resolution If it is a shorthold tenancy, where there is a dispute concerning disrepair at the end of the tenancy the following matters apply. If the deposit paid by the tenant is currently still protected within an authorised TDS Scheme, the Deposit Protection Service (DPS) - who administer all TDS Schemes - offer an alternative procedure for resolving disputes, to save you having to go to court. They have issued a guide, explaining the disputes procedure they provide: • A Guide to Tenancy Deposit disputes and damages Where a deposit is protected by being placed in the TDS scheme, if a dispute arises at the end of the tenancy (e.g. over alleged disrepair) the parties can choose to resolve it by this procedure instead of going to court (but must begin the procedure within a time limit). Both the landlord and the tenant must agree to use the DPS disputes procedure. It cannot be initiated by only one of them. But it can be MUCH cheaper than a court case. The same procedure applies in ANY dispute concerning a tenancy deposit protected in a TDS scheme, regardless of the type of scheme involved (i.e. whether it is a custodial scheme or an insurance scheme), and regardless of which of the three authorised bodies is administering the scheme. Further information: Deposit Protection Service (DPS) website Who do I sue? An agent is not liable for actions carried out on behalf of a known principal, so you probably can't sue the Letting Agent. It's the principal, i.e. the landlord, who's liable to you under the tenancy contract, if you knew the agent was only an agent (and possibly even if you didn't know that). Letter Before Action If you intend to sue, then once the tenancy has terminated you can consider whether to write a letter before action [LBA], threatening to sue, giving the traditional 14 days notice. This is what you might say - You will of course only include in the letter those paragraphs of the above draft that are actually relevent in your situation. Keep a photocopy of the letter. Send the original by 1st Class post, and obtain a free 'Certificate of Posting' at the Post Office counter when you hand it over. Suing Read the Court Service's leaflet How do I make a court claim (Form EX302), which contains detailed guidance on suing in the County Court. Court Forms Form N1 is for claiming the original deposit only. Form N208 is for claiming both the original deposit AND the statutory penalty of three times the amount of the deposit. Money Claim Online is a cheaper online method of claiming on form N1. To make a money claim for a fixed amount not exceeding £100,000 you can start the claim using the Court Service's Money Claim Online website, as a cheaper alternative to using form N1. Other Court forms are available at: • Court Forms or search for the form you need at Search for forms. Wording Your Claim: If you intend to make a claim using form N208, you MUST first read the Sticky thread on how to word your claim: • The current Court fees are set out at: • Court Fees
  4. My comments only apply if the premises are entirely within England, and you were granted a shorthold tenancy (under which you have exclusive use of a separate dwelling, and the landlord does not live in the same building), and you were over 18 years of age when the tenancy was granted. Bear in mind that if you are a shorthold tenant, you can be evicted from the premises by simply being given 2 months notice, in writing, taking effect after the fixed term ends (and, if given after the end of the fixed term, expiring on the last day of a rent period). No reason has to be given. Where a dispute arises, concerning any matter, the landlord can simply end the tenancy in that way.
  5. The starting point is this: what does your tenancy agreement say? Take it to a Solicitor and obtain his advice as to who is liable to pay the electricity bills under the terms agreed. If the tenancy agreement makes the tenant liable to pay the bill for electricity, then the landlord can not have deducted money from your rent deposit in order to pay an electricity bill. If he is not liable for payment, the electricity company will have sent the bills to you, not to him, so he would not even know about any unpaid charges that you owe. So, in that situation, what you are suggesting does not make sense. If you were getting the bills, he could not have known about the amount of any arrears. And that is the usual situation. The tenant is normally the one on whom the letting agreement imposes the duty to pay all outgoings, such as electricity. Only if all payments are pre-paid by cash, in an electricity meter, will a tenancy agreement not need to impose on the tenant a duty to pay.
  6. Section 21 of the Landlord and Tenant Act 1985 applies to residential leases only. See section 18(1) of the Act: http://www.legislation.gov.uk/ukpga/1985/70/section/18 Landlord and Tenant Act 1985 - Landlord and Tenant Act 1985
  7. My advice is applicable only if the rented premises are in England, and only if you were granted a tenancy (under which you had exclusive use of the premises, which were not shared with another tenant nor with the landlord) and you were over 18 years of age when the tenancy was granted. Consult a Solicitor for advice, it is a complex area of law. Or try the Commercial Property Forum - http://www.landlordzone.co.uk/forums/forumdisplay.php?8-Commercial-Property-Questions A business lease can be invalid in some circumstances, for example if it's granted in breach of a prohibition on sub-letting contained in a superior lease. Tenancies at will are commonly used in an attempt to get round that type of prohibition. If you have been granted exclusive occupation of business premises, you could have a tenancy; and if it has not been excluded from the protection of the Landlord and Tenant Act security of tenure, by a prior agreement, then you could potentially have enforceable legal rights under that tenancy; but only a Solicitor can enforce them, because it is a complex and technical area of law.
  8. My comments only apply if the premises are entirely within England. This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation. You can't have a tenancy, or even a licence. For a contract to be validly created, and therefore legally binding, there must be - (a) an offer to reserve the property, made by the landlord; (b) an acceptance of that offer by the tenant; © a payment, usually of money, by the tenant; (d) an intention to create legal relations - which is presumed to exist unless the landlord and tenant are related by blood or marriage. In your case, you fail point (d) above. One of the potential 'tenants' - the girlfriend - is related by blood and/or marriage to the landlords, who are her parents or step-parents; in that situation there usually cannot be a valid contract in law. The so-called 'debt' can't exist if the contract is invalid. You might sue for recovery of your goods, under the 1977 Act. But you can't sue under the contract if it doesn't exist. Torts (Interference with Goods) Act 1977: Section 3. Form of judgment where goods are detained (1) In proceedings for wrongful interference against a person who is in possession or in control of the goods relief may be given in accordance with this section, so far as appropriate. (2) The relief is - (a) an order for delivery of the goods, and for payment of any consequential damages, or (b) an order for delivery of the goods, but giving the defendant the alternative of paying damages by reference to the value of the goods, together in either alternative with payment of any consequential damages, or © damages. Legal Aid will NOT be available for a claim worth less than £5,000. In my opinion.
  9. My comments only apply if the premises are entirely within England. Only a Court can decide what the legal effect of your tenancy agreement is. Will you please provide the essential information requested in the "sticky" thread Questions for new posters. If you have a Housing Association tenancy granted in the 1990's, chances are it is an Assured tenancy, granted under the 1988 Housing Act. Such a tenancy can only be terminated if you break one of the terms and conditions set out in the tenancy contract. You will need legal advice in order to understand the meaning of the contract document, so take it to the Citizens Advice Bureau or to a Solicitor. The landlord can't just evict you. It must first obtain a Court order, so it will have to prove to the satisfaction of a judge that you are actually in breach of the contract. For example, if the contract simply bans you from running a business at the property, this would NOT be broken if you are simply repairing your own car. If the contract bans you from causing a nuisance or annoyance to your neighbours, you will need to see a Solicitor to discuss in detail what the legal phrase 'nuisance or annoyance' means. It can be almost anything, if it has an impact on the visual amenity of the street. In a run-down neighbourhood, it will take something quite bad to become an annoyance; but in a smart, posh neighbourhood even something quite trivial might amount to an annoyance. The court will not evict you lightly; so you might get away with it if the judge looks on the breach as purely trivial, unless you repeat the breach on a number of occasions.
  10. My comments only apply if the premises are entirely within England, and you were granted a shorthold tenancy (under which you have exclusive use of a separate dwelling, and the landlord does not live in the same building), and you were over 18 years of age when the tenancy was granted. This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation. Will you please provide the essential information requested in the "sticky" thread Questions for new posters. There are many other questions to ask: • Are the premises in England? Tenancy laws are different in other countries. • Have you paid a deposit? If so, how much? Is the deposit protected under the rent deposit scheme? • On what date was the Section 21 notice received? On what date does it take effect? Bear in mind that if you are a shorthold tenant, with a periodic tenancy, you can be evicted from the premises by simply being given 2 months notice, in writing, taking effect after the initial six months ends (expiring on the last day of a rent period). No reason has to be given. That is known as a section 21 notice. A section 21 notice is automatically invalid if given BEFORE the tenant's rent deposit has been protected in a TDS deposit protection scheme. If no fixed term was agreed, or it has ended, a periodic tenancy arises (with a period of one week or one month, depending whether rent is paid weekly or monthly). To end a periodic tenancy, the landlord must give 2 months notice in writing, expiring on the last day of a rent period (but if the tenancy agreement requires a longer period of notice, the landlord must give that longer period of notice); but the notice CANNOT take effect during the first 6 months. Thereafter, the landlord must ALSO obtain a Court order. If the section 21 notice is valid, you will be evicted. Start looking for new accommodation, so that if the s.21 notice is invalid you can give notice to end the tenancy on a date convenient for you, i.e. to coincide with the date your next tenancy begins, because the probability is the landlord will try again.
  11. My comments only apply if the premises are entirely within England. Only a Court can decide what the legal effect of your contract agreement is. All we can do is suggest some matters that might be relevent to the court's decision. Contracts which cannot be Assured or Shorthold tenancies The following, if granted today, cannot be assured or shorthold tenancies: • a letting by a resident landlord; or • a licence. Verbal agreements For a verbal contract to be validly created, and therefore legally binding, there must be - (a) an offer to let the room, made by the landlord; (b) acceptance of that offer by the occupier; © an agreement to make payment, usually of money (e.g. a rent); (d) an intention to create legal relations - which is presumed to exist unless the parties are related by blood or marriage. You have met all those requirements, from what you say. You therefore appear to have a valid contract; but it is a licence, not a tenancy. A contract is quite valid if verbal. But you can't create a tenancy of a single room, if essential facilities - such as a bathroom and/or kitchen - are shared. A tenancy requires exclusive use of seperate accommodation. What you appear to have is a lodger, not a tenant. In law, he is called a Licencee. The laws that govern tenancies don't apply to lodgers, so there are no terms implied into your contract by law. You only have the express contract terms, i.e. those which you and the lodger actually agreed. If you don't have a written contract with him, it is going to be difficult to prove that he had agreed to give you any notice in advance to end the letting.
  12. You misunderstand. The Ombudsman does not have any power. The Ombudsman scheme is a voluntary arrangement, with no legal effect. Whether or not you go through a complaint with the Ombudsman, your legal rights are not affected. You can still sue, in a court, in either case. The purpose of the Ombudsman scheme is to give consumers a free means of raising a complaint oif malpractice, in a less complex forum than the court. It adds an extra option; it does not take away a tenant's legal rights - such as the right to sue in a court. The purpose of the small claims division of the county court is to give a tenant a cheap means of suing for malpractice, in a relatively informal proceding, without being liable to pay the opponent's legal fees. This is called a claim for negligence. There is a small court fee, but no other cost; and the Citizens Advice Bureau can give advice and assistance in completing the application form. You cannot get judicial review of the Ombudsman's decision, as that is for reviewing the decisions of statutory bodies, i.e. Govt departments and District or Borough Councils, that exercise administrative law functions. A voluntary scheme is not subject to the rules of administrative law. You should not rely on any precedents you may have heard of concerning the Parliamentary Ombudsman, or the Local Govt ombudsman. Those Ombudsmen schemes are statutory, not voluntary; and therefore they are eligible for Judicial Review. But, in my opinion, a voluntary scheme is not.
  13. As I read the initial post, she has a private landlord. She talks about seeking help and advice from the Council, with a view to talking them into housing her, I imagine; but she is specific that she currently has a shorthold tenancy, and that she does not wish to rent privately in future. The phrase "I can't afford to go back into private renting" I take to really mean "I can't afford to continue with private renting".
  14. My comments only apply if the premises are entirely within England, and you were granted a shorthold tenancy (under which you have exclusive use of a separate dwelling, and the landlord does not live in the same building), and you were over 18 years of age when the tenancy was granted. Only a Court can decide what the legal effect of your tenancy agreement is. Fixed Term: Ending the Tenancy If the tenancy is for a fixed term, the tenant has a legal right to remain until the fixed term ends. The tenancy can't be ended early unless: a. the tenancy agreement itself contains a "break" clause: an express provision that allows the letting to be ended early (typically, by giving one month's notice); or b. there is an agreed surrender of the tenancy, by a formal written deed of surrender, signed and witnessed; or c. the landlord makes a successful application to the court under section 8 of the 1988 Act (for rent arrears or some other breach of the tenancy agreement). Nevertheless, if a break clause allows the landlord to give notice terminating the tenancy AFTER the first six months of occupation, a section 21 notice might be sufficient to activate the break clause: • Aylward v Fawaz (1997) 29 HLR 408, CA Break Clause The tenancy can be ended early if the tenancy agreement contains a "break clause" (an explicit right to end the tenancy early by giving notice), and if a valid notice to end the tenancy early is given under that clause. The Housing Act 1988 does not specify any notice period in respect of a notice given under a break clause. Therefore it is a common law notice, so the notice period is purely contractual in nature. Thus the period specified in the tenancy agreement applies without modification. There is no statutory obligation for the notice to expire on any particular date. A notice given by the landlord under a break clause is NOT given under section 21, but under the break clause. So it must only comply with the conditions specified in the break clause (the contractual conditions), as to the length of notice to be given, not with the conditions specified in section 21 (the statutory conditions). Nevertheless, if the break clause allows the landlord to give notice terminating the tenancy AFTER the first six months of the term, a section 21 notice might be sufficient to activate the break clause: • Aylward v Fawaz (1997) 29 HLR 408, CA In the present case, this might not apply, because the break clause does not provide for the term to be ended after the first six months. It seemingly provides for termination DURING the first six months, as the landlord seeks to terminate after 5 months. So the Court of Appeal authority in Aylward v Fawaz might not be applicable here. Section 21 notice If the tenant remains in occupation after the end of the six month fixed term, a statutory periodic tenancy arises [section 5(2), Housing Act 1988]. The landlord must end the statutory tenancy before he can apply to the court for possession. 1. Notice given by Landlord under section 21(1)(b) - The statutory tenancy can be ended by the landlord giving at least 2 months notice DURING the fixed term, even at the beginning of the tenancy (i.e. before the periodic tenancy exists) [section 21(1)(b)]; but the notice can't take effect before the fixed term ends [section 21(2)]. The notice can take effect on the last day of the fixed term or any later date: where a notice is served DURING the fixed term, there is NO need for the notice to expire on "the last day of a period of the tenancy", as section 21(1)(b) doesn't require that. Logically, it's still a fixed term at this stage; there is no 'period', as it's not a periodic tenancy. This is the type of notice you have received. One given to you DURING the fixed term. As a section 21 notice it is clearly INVALID for it seeks to take effect before the end of the fixed term. So any legal effect it may have can be as a contractual break notice only. 2. Notice given by Landlord under section 21(4) - If the notice is served AFTER the expiry of the fixed term (i.e. during a periodic tenancy) it must expire on the last day of a period of the tenancy, as section 21(4) requires that. The notice was clearly NOT given to you after the expiry of the fixed term. So s.21(4) is irrelevent in this case. The Section 21(1)(b) notice given to you appears to be invalid as a statutory notice for a second reason also, in that it does NOT give 'at least 2 months notice'. The notice given to you says that you are to move out on 20th April. But you only received it on 20th February. In my opinion, the last day on which you could have been given it was 19th February, which appears to be the latest date on which you can be given 'at least' 2 months notice of a termination on 20th April, i.e. two clear months' notice. Thus, if the notice is to have any effect, it must be a contractual effect, under the 'break' clause, for the notice doesn't meet the requirements of a statutory notice. Continuation tenancies Section 21(5) provides that a court order can't take effect during the first 6 months of the original tenancy. It further provides that this is a one-off restriction, which does not apply to any further (i.e. continuation) tenancy of those premises. You have been in continuous occupation through several 6 month fixed terms. I am not clear whether this is relevent, as the contract nevertheless specifies a new 6 month fixed term, and it is difficult to see anything in the wording of section 21 to save the landlord's notice, since section 21(2) expressly provides that such a notice must take effect AFTER the initial six months; and as the fixed term only began on 20th November last, it is hard to see how section 21(2) can mean some date calculated from before the tenancy began. However, only a Court can decide what the legal effect of your tenancy agreement is. Protection from Eviction Act To be a lawful eviction, you must be given 4 weeks written notice pursuant to the Protection From Eviction Act 1977. Since the landlord is required by your tenancy contract, and by the Housing Act 1988, to give you 2 months prior notice, it is difficult to see how the landlord can possibly be violating the 1977 Act, with its much shorter notice period.
  15. My comments only apply if the premises are entirely within England The Government Guide to Tenancy Law The guide is titled "Assured and assured shorthold tenancies: a guide for tenants", published by the Department for Communities and Local Government. You can read it at - • http://www.homes4u.co.uk/includes/uploads/file/guides/ASTs.pdf Tenancy for LESS than 3 Years A verbal tenancy is valid if the term is 3 years or less, if the rent payable is a market rent (i.e. "the best rent reasonably obtainable") [section 54(2), Law of Property Act 1925]. Since the law changed in 1989, a verbal tenancy of less than 3 years is ALWAYS valid, if granted at a market rent, even if the tenant does not take up occupation. In the present posting, as the tenant has paid the first month's rent, a tenancy exists, by virtue of that payment, and the landlord can be sued by the tenant for breach of contract if he now refuses to let the tenant into the property let.
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