Dispute Resolution

1. Introduction

The Housing Act 2004 places a statutory duty upon local authorities to keep housing conditions under review.  Local authorities use the Housing Health and Safety Rating System (“HHSRS”) to assess the condition of such residential premises.  It is a risk assessment type system, which leads to a hazard(s) being given a numerical score based upon a statutory formula which then correlates to a banding system.  A hazard which falls within Bands A, B or C is a Category 1 hazard, and a hazard falling within Bands D to J is a Category 2 hazard.  When a Category 1 hazard is found then the local authority is under a duty to take enforcement action, whilst the local authority has a discretion to take action regarding a Category 2 hazard.

2. Determining what action should be taken

In my experience a local authority will usually have a policy or procedure that it follows in order to try and be consistent and fair in determining what if any action is to be taken once it has been established that a hazard(s) exists.

Usually a Housing Inspector will undertake a full survey of a property to identify the nature and extent of all hazards present.  Following this survey the authority will then write to the landlord to inform him/her of the hazards identified and of any work recommended.

If the hazard(s) provides a non-imminent risk to the health and safety to the occupants, there is no history of non-compliance by the landlord, the tenant(s) is not particularly vulnerable and the landlord can agree a timetable of agreed work then usually the local authority will allow the landlord a reasonable period of time within which to remedy the hazard(s) before taking an enforcement option (see below).  If there is an imminent risk to the health and safety of the occupant, there are vulnerable occupants, a landlord with a history of non-compliance, a landlord refusing to agree or act upon a reasonable timetable of remedial work, then these are all factors which might persuade the authority to go straight to an enforcement option rather than by trying to get the landlord to resolve matters through correspondence.

If a landlord is given a chance to remedy the hazard(s) before an enforcement option is taken, then the local authority will also usually monitor the progress of the works to ensure that they are completed properly and in a timely manner.  If there are any delays or the work is unacceptable, the local authority may then decide to go to an enforcement option after all.

3. Enforcement Options

Action                                           Category 1                   Category 2

No Action                                                No                                Yes

Hazard Awareness Notice                    Yes                               Yes

Improvement Notice                            Yes                               Yes

Prohibition Order                                  Yes                               Yes

Emergency Remedial Action                Yes                               No

Emergency Prohibition Order             Yes                                No

Demolition Order                                   Yes    In certain circumstances

Clearance Order                                     Yes    In certain circumstances

The local authority cannot take more than one of these actions available at any one time to address the hazard (unless it is an emergency action) but can vary the action required if one of the actions taken has not proved successful.

a) Hazard Awareness Notice

This is not a notice actually requiring works, but formally recording one or more of the hazards that exist.  In effect this is just putting the landlord on notice of a hazard that may need to be remedied in the future.

b) Improvement Notice

This is a notice requiring remedial action to mitigate one or more hazards.  The action must as a minimum remove the Category 1 hazard, but may extend beyond this and the notice may specify timescales for completion.  This notice applies where there is no imminent risk of serious harm, where the works required are practicable and there is a vulnerable occupier present.

c) Prohibition Order

This prohibits the use of all or part of the premises, may allow agreed use, and may specify occupancy numbers.

d) Emergency Remedial Action

There must be an imminent risk of serious harm involving a Category 1 hazard.  This is limited to the works immediately necessary to minimise the imminent risk.

e) Emergency Prohibition Order

There must be an imminent risk of serious harm involving a Category 1 hazard.  This prohibits the use of all or part of the premises and has immediate effect.  This is likely to be used where Emergency Remedial Action is not practicable.

f) Demolition Order

This is usually very rare as it is only appropriate where works are impracticable and/or excess costs are involved and demolition would not have an adverse effect on neighbouring properties.

g) Clearance Area

This is extremely unlikely to be applied to single dwellings locally.

4. Factors to be taken into account when choosing an enforcement option

Again I would have thought that the local authority would have a list of factors in its policy, but I would expect that they would include some or all of the following:-

• The significant of the hazard(s), i.e. the rating score and Band.
• The extent and location of the hazard(s) within the premises.
• The range of hazard(s) identified within the premises.
• Whether the local authority is under a duty or has a discretion to take formal action in respect of the hazard(s) identified.
• The hazard(s) is not considered sufficiently serious to warrant a local land charge.
• The level of risk posed to the current occupiers, including whether there is an imminent risk of serious harm.
• The views and intentions of the occupier.
• The risk of social exclusion of a vulnerable group or individual.
• The availability of alternative accommodation.
• The views and intentions of the landlord
• The compliance record of the landlord.
• Whether the chosen option is practical, reasonable and proportionate in reducing the hazard(s) to an acceptable level.
• The building is listed or located within a conservation area.
• The potential for alternative use of the premises or site.
• The physical impact on adjoining buildings.
• The longer term viability of the premises and area.
• The impact on the local community and on the appearance of the local area.
• The extent of hazard(s) within neighbouring premises and the general condition of the neighbourhood.
• Availability of alternative housing for current occupants.
• Likely demand for accommodation if the hazard(s) were remedied.
• Prospective use of the site if cleared.

In general the local authority should target its enforcement action at more significant risks and of course that action should be proportionate.

In respect of Category 2 hazard(s) the local authority might exercise its discretion to take enforcement action based upon the following factors:-

• The higher the Band, e.g. Band D, the more likely the need for action.
• Whether the number of Category 2 hazard(s) combine to create a more serious situation.
• The potential for the Category 2 hazard to become a Category 1 hazard within say 2 years.
• Whether the Council will be taking action to address Category 1 or Category 2 (Band E) hazards at the same time.
• Whether the property falls within a wider regeneration scheme.
• Whether a current occupier is within the vulnerable group.

Section 8 of the Act requires that notices and orders have a “Statement of Reasons”.  This statement should include why one type of enforcement action was taken rather than the other options available.

5. My personal experiences

Usually the local authority will contact the landlord about a hazard(s) and give the landlord a reasonable chance to rectify the hazard(s) within a reasonable period of time provided there has been no history of non compliance with that particular landlord or property and/or there is not an imminent risk of danger to vulnerable occupants.  Hence a landlord that cooperates and arranges appropriate remedial action within a reasonable period of time will usually avoid being on the wrong end of a formal enforcement option.  Usually the local authority will use the enforcement system as a “stick to beat” the landlord with if he/she does not cooperate.

Only rarely, e.g. in cases of landlords with a history of non compliance, imminent risk of danger to vulnerable occupants, will the local authority proceed directly to an enforcement option.

If you are either a landlord or a tenant and need advice about any matter relating to maintenance or upkeep of rented residential premises then please contact Gemma Mayer on 01775 72261, or email gemma.mayer@maplessolicitors.com or Daven Naghen on 01775 72261, or email daven.naghen@maplessolicitors.com or visit our offices/arrange an appointment at 23 New Road Spalding Lincolnshire PE11 1DH.

From 1st September 2012 squatting in residential buildings will become a criminal offence. The offence will be punishable by up to 6 months in prison, a £5,000 fine or both.

Up until 1st September 2012 the law has always protected squatters – people who take up residence in empty homes. Under the old law the only option of homeowners who had their home taken over by squatters was to seek a civil Court Order to regain possession of their property which was both time consuming and expensive. For the first time however squatting is now a criminal offence.

The new law aims to protect homeowners or legitimate tenants who have been kept out of their homes by squatters. It will also protect people who own residential buildings in which they do not live in such as Landlords, Local Authorities or second homeowners.

Anyone therefore who has squatters in their residential property can report the matter to the Police who should take immediate action.

Should you require any further information regarding this or any other matter relating to residential property/tenancies then please contact our James Turner at james.turner@maplessolicitors.com or call the office on 01775 722261

There is one question a lot of landlords have asked us over the years and that is “What is the Difference Between a Section 8 and Section 21 Notice?”.

The most basic difference between a section 8 and section 21 is that a section 8 notice is served when a tenant is in breach of contract (eg rent arrears), and a section 21 is served to end a tenancy agreement, simply so that the landlord can regain possession.

A section 8 notice, or notice to quit as it is also commonly known as, is so called because it operates under section 8 of the Housing Act 1988. A section 8 notice is served on the tenant by a landlord wishing to regain possession of a property during the fixed term of an Assured Shorthold Tenancy (AST) when the tenant has broken the terms of the tenancy. You can give between 2 weeks’ and 2 months’ notice depending on which terms the tenant has broken.

Once the period of notice has lapsed and the tenants have not vacated then you can apply to the court for an Order for Possession.

If you need help in completing a Section 8 Notice with the correct notice periods and/or assistance with the grounds for possession then please contact laura.day@maplessolicitors.com or daven.naghen@maplessolicitors.com and we will be happy to assist you with this.

With respect to a Section 21 notice, you can use this notice to evict your tenants either after a fixed term tenancy ends - if there’s a written contract, or during a tenancy with no fixed end date - known as a ‘periodic’ tenancy.

Section 21 Notices are only for use when the prescribed documents have been served on the tenant at the start of the tenancy. You cannot use a Section 21 notice if you have not given the tenants copies of:
• the property’s Energy Performance Certificate
• a current gas safety certificate for the property - You must have given the tenants a copy of the current gas safety certificate before they moved in.
• the government’s ‘How to rent’ guide
You are also required to secure the tenant’s deposit in a Tenancy Deposit Scheme. This government-backed scheme ensures that the tenants get their deposit back at the end of their tenancy, so long as they have not damaged the property, have met the terms of the tenancy agreement and have paid all their rent/bills. You must ensure that such a deposit is put in a scheme within 30 days of its receipt and provided the information of where it is secured to the tenant. Failure to secure a tenant’s deposit will invalidate a Section 21 Notice.

You are also unable to use a Section 21 Notice if it is less than 4 months since the tenancy started, or the fixed term has not ended, unless there’s a clause in the contract which allows you to do this.

If the tenants do not leave by the specified date then you can apply to the court for a Possession Order. You may wish to use the accelerated possession procedure if you are not claiming rent arrears as generally this route is quicker than applying for a standard possession order and there is usually no hearing involved.

If you want to claim rent arrears then you may either use the standard possession route or use the accelerated possession procedure but then make a separate claim for recovery of the outstanding rent.

The decision as to whether or not to use the section 8 or section 21 route is complex and we would recommend a landlord seeks early advice as to which mechanism to use.

If you require more advice and assistance on Section 21 Notices or which possession proceedings route would suit you then please contact daven.naghen@maplessolicitors.com and we will be happy to help.

Introduction

It has long been established in English law that an insured cannot successfully claim from an insurer where the insured’s claim has been fabricated or dishonestly exaggerated.  This is known as the Fraudulent Claims Rule (“the FCR”).  Obviously the FCR was designed to deter fraud.  However on the 20th July 2017 the Supreme Court, the highest court in the United Kingdom, considered a more recent extension of the FCR to “collateral lies” which are lies told by the insured to embellish the claim but which are irrelevant because the claim is justified whether the statement is true or not.

An example of a “collateral lie” being the insured producing a false receipt for a stolen computer worth £1,000 when the computer has been stolen and is actually worth £1,000.

The Supreme Court held, by 4 judges to 1, in Versloot Dredging BV and Another v HDI Gerling Industrie Versicherung AG and Others that the FCR does not apply to “collateral lies” which are immaterial to the insured’s right to recover.

One of the most distressing things that can happen to you is to fall out with your neighbour, especially over boundaries and property rights.  You cannot leave this problem behind, it is there at home with you constantly.

Our aim is to help you resolve your neighbour dispute as quickly and cost effectively as possible.  Such disputes are notorious for leading to lengthy and costly litigation, many incidents of which have been widely publicised in the media.

We can advise you as to your legal position and rights, communicate with your neighbour on your behalf and hopefully bring the matter to an end by reaching a sensible agreement.  Failing that we can litigate your case and look to assert or defend your rights before the Courts.

We offer fixed fee interviews and cost caps (you set the budget that we work within) to help you avoid the risks of a large sudden and unexpected legal bill.

In some cases you may be able to fund the case with the help of an insurance policy.  Many forms of insurance, e.g. home insurance etc carry an element of legal expenses cover.  We can check your policy to see if it has this cover.  If you are covered then the Insurer may ask you to use one of its Panel Solicitors.  However you have the right to choose your own solicitor and can insist that we represent and advise you.

If you are having any problems with a neighbour over any issues then please contact Daven Naghen for advice.