The Modern Civil Process - Assignment Example

Property and Housing Law Question Secure Tenancy Shared living arrangements such as those between Mr. A and Mr. B can give rise to a secure tenancy.1 Even in instances where the tenant enjoys exclusive possession of some part of the accommodation and shares some of the facilities, a secure tenancy may still arise.2 However, since Mr. B’s tenancy was created in 2006 and after the implementation of the Housing Act 1988, he may not make claim under the ambit of secure tenancy. The 1988 Housing Act abolished the concept of secure tenancy and replaced it with the assured tenancy principle instead.3 If an assured tenancy is established, Mr. A may only evict Mr. B by virtue of a court order.4 In order to satisfy the statutory requirement for evicting a tenant subject to assured tenancy, the landlord must prove that there are grounds for possession and they will typically include nuisance or arrears of rent.5 An assured tenancy arises when the tenant occupies a dwelling as his or her only residence.6 This is the primary criteria and it becomes virtually irrelevant whether or not the landlord also shares some part of the dwelling provided the tenant occupies the dwelling as his only residence and pays a fair rent.7 Mr. B has been living with Mr. A as a tenant for four years on a monthly rent of 400 pounds. As a result he has established a monthly tenancy with no fixed term and with the notice by Mr. A can invoke his statutory assured tenancy right. Unless Mr. A can substantiate reasonable grounds for requiring vacant possession, he will not be able to obtain an eviction order from the courts. In the mean time, as a tenant entitled to an assured tenancy under the Housing Act 1988, Mr. B may remain in occupancy until such time as an order for eviction is made. Question 2: Multi-occupied residential dwellings The property investor’s plans to purchase a four storey property with 6 bedrooms, one bath and one kitchen as well as three WC facilities for the purpose of operating a shorthold tenancy bedsit, is governed by the Housing Act 2004. By virtue of Section 254 of the Housing Act 2004, the property is a house in multiple occupancy (HMO) because it is a house which will be let to at least three tenants who will share a kitchen and a bathroom.8 As a result certain health and safety concerns necessarily arise and require strict compliance and monitoring. The Act creates a new Housing Health and Safety Rating System and the 2004 Act identifies at least 30 health hazards applicable to what may be deemed “poor housing conditions” by the local authorities.9 The list of health hazards that can qualify as poor housing conditions range from excessively cold dwellings to weak structures.10 The property investor will be required to obtain a license because the building is comprised of more than three storey’s and will likely be occupied by three or more tenants from at least two families.11 This is a reasonable assumption since the property contains 6 bedrooms which the investor intends to let by virtue of bedsits. It is therefore possible for the property to be let to six tenants or more who are not related to one another. In order to obtain a license to let the property as a bedsit, the property investor must satisfy the relevant housing authority that the facilities are adequate for that purpose. The property will be adequate if there is proof that the bedsit is not subject to overcrowding and that the property is safe in that it has a number of safety and escape mechanisms.12 The property investor will also have to comply with The Management Standards Set Out in the Management of Houses in Multiple Occupation (England) Regulations 2006 once a license is granted. The 2006 Regulations require the property owner/manager to ensure that there is a safety regime in place which pertains to a number of potential hazards namely, fire, electricity, water and water. There common areas must also be maintained and kept in a reasonably clean condition.13 Question 3: Control of tenants’ anti-social behavior Anti-social behaviour orders were initially introduced via the Crime and Disorder Act 1998 and have since been expanded on by the Policy Reform Act 2002, the Anti-Social Behavior Act 2003 and the Housing Act 2004.14 Cumulatively, the law is such that a social landlord or the local law enforcement officers may in collaboration with one another obtain an Anti-Social Behavior Order from a magistrate’s court.15 The aim of the Anti-Social Behaviour Order is to protect persons who may be impacted from escalated bouts of anti-social behaviour. These orders are typically taken out against individuals or groups which are usually family members or persons within the same household and they are necessitated where the conduct causes distress, alarm or harassment to those who do not share the same household. The Anti-social Behaviour Order functions to enjoin the subject/subjects from committing the conduct complained of for a fixed term. In the event the subject/subjects does not comply with the order, the non-compliance is classified as a criminal act and can result in arrest and criminal prosecution.16 The Housing Act 2004 goes on to provide additional authority to social landlords for the purpose of controlling and containing anti-social conduct on the part of tenants. These authorities include the right to deny mutual exchange applications for secure tenants/assured tenants if an action for anti-social behaviour has been litigated successfully or is pending.17 Additionally, social landlords may obtain an order refusing the secure/assured tenant the right to buy for a specific period on the grounds of anti-social conduct.18 Moreover, the social landlord may suspend the duty to complete a right to buy sale when an action for anti-social conduct is pending.19 Question 4: Occupier’s Liability to Children The word “occupier” as it appears in the Occupier’s Liability Act 1957 is not defined by the Act itself.20 However the court’s have interpreted the term to such an extent as to cover a wide range of actors who at any given time have authority or control over premises. In Wheat v E. Lacon & Co. Ltd. [1966] AC 522, it was held that it was possible for more than one entity or individual to be an occupier at any given time.21 In this case, the court found that a landlord, tenant and employee of a pub each had sufficient control of the premises to be deemed occupiers for the purpose of assessing liability under the 1957 Act.22 It therefore follows that the management company which is responsible for the security of the derelict property in London is certainly an occupier that the injured child’s mother can claim damages under the Occupier’s Liability Act 1957. In order to succeed in an action for negligence, it will first be necessary to determine whether or not the management company was under a duty of care with respect to children who are attracted to the site. In general the Occupier’s Liability Act 1957 applies only to all types of visitors and will not generally protect a trespasser.23 Section 2(2) of the 1957 Act provides defines the occupier’s duty of care as: The duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.24 Section 2(3) of the 1957 Act goes further to provide that occupiers are required to prepare for the fact that children are not as careful as adults.25 By virtue of the allurement principle, occupiers are therefore liable for injuries incurred by children as a result of traps that have a propensity to attract children. For example, the occupier was liable for the death of a child who ate poisonous berries at a public park. The berries in question had not been cordoned off and the occupiers were liable because the berries were an allurement to children.26 Similarly, an abandoned boat was deemed an allurement to two young boys who were injured while playing on the boat.27 It is not clear on the facts whether or not the child was a visitor or a trespasser. This is important because trespassers are not accorded protection under the Occupiers Liability Act 1957. In fact it was held in Liddle v Yorkshire (North Riding ) CC [1944] 2 KB 101 that a child who was trespassing on a soil bank could not claim damages from the occupier. The child had been previously warned off the property and it was therefore clear that the child was a trespasser. The question is therefore whether or not the injured child was a lawful visitor.28 Therefore had the injured child been warned to stay away from the property and continued to come back to the property, her mother will not likely succeed on the grounds that the child was a trespasser. However, if children are known to frequent a site and the occupiers do not take precautions to keep the children away from dangerous sites that are attractive to children, the children will be deemed licensees and therefore lawful visitors.29 Based on the facts, the tmanagement company appears to be aware that the site has a propensity to attract children. If no precautions have been taken to keep children off the site, then the injured child is deemed a visitor for the purposes of liability under the Occupier’s Liability Act 1957. Question 5: Restrictive Covenants Restrictive covenants typically arise out of a “bilateral agreement between two estate owners” and are designed to control how the land in question can and cannot be used.30 Ultimately, restrictive covenants have contractual implications in that they bind the covenantor and the covenantee. However, under conventional contract laws, the doctrine applicable to privity of contract suggests that the original contract may not pass along a burden to a party who only subsequently purchases the property.31 In order to prevent the doctrine of privity of contract interfering with a restrictive covenant, covenants are placed under freeholders’ covenant rather than under the privity of contract or estate privity. Rather restrictive covenants are founded on equitable principle of “privity of conscience”.32 The restrictive covenant evolved as a propriety interest and it therefore runs with the land.33 Therefore Mr. A is bound by the restrictive covenant. Restrictive covenants will bind not only the original parties to the covenant but all successive owners of the land to which the restrictive covenant is attached.34 Since the restrictive covenant has been ignored for the last thirty years, Mr. A with Z’s cooperation may apply to have the restrictive covenant modified or removed by virtue of Section 84 of the Law of Property Act 1925.35 The application can be made to the Lands Tribunal which is regulated by the Lands Tribunal Rules 1996. Mr. A can argue that the restrictive covenant has become obsolete given the fact that it has been waived for the last 30 years. He may also argue that the persons who are entitled to the benefit of the restrictive covenant have agreed to its discharge or alteration. This would be evidenced by the fact that the covenant has been ignored for thirty years. Question 6: ADR A. Alternative Dispute Resolution The Civil Procedure Code 1998 encourages disputants to seek as far as possible alternative dispute resolution with litigation as a last resort. In this regard, parties are encouraged to either settle their disputes by private agreement, arbitration or mediation.36 Mediation is conducted by the appointment of a neutral third party who advises the parties as to the correct resolution of their dispute. If the parties accept this advice they are bound by the agreement and can enforce it as they would any contractual obligation.37 Arbitration is a method by which the disputants agree to set their dispute before a neutral third party for the determination of their dispute. The arbitrator will make an award and that award will have the force of law as if it had been a judgment issued by a court of law.38 Like mediation and settlement of disputes, the power of the arbitration process is founded on the consent of the parties. The agreement to arbitrate binds the parties to the outcome. The agreement to accept a settlement or to accept the mediator’s advice likewise binds the parties. B. Advantages of using mediation Mediation first and foremost removes the cost and time involved in litigation. Moreover, it removes the formalities of form adjudication and confers upon the parties a great deal of control over their dispute resolution process. In other words, parties may select their mediator whereas in litigation the presiding judge is appointed. Moreover, mediation takes the dispute outside of public scrutiny allowing the parties to resolve their dispute privately and cooperatively rather than by virtue of adversarial means.39 C. Mediator’s skills in construction disputes The skills of a mediator in construction disputes is no different from the skills of required of mediators generally. First and foremost, the mediator should possess the attribute of independence. Independence involves the ability to work independently and neutrally. As a facilitator, the mediator should be a good negotiator. An evaluative mediator will have significant knowledge of the subject matter of the dispute.40 In other words, in a construction dispute, the mediator would have significant construction knowledge. Essentially, the mediator should have good and effective communication skills, intuitive skills and be authoritative. Other attributes include, good judgment, flexibility, trust-worthiness, empathy, constructiveness and creativity.41 Essentially, the mediator should have people skills and the ability to harness those skills in such a way to gain the respect and confidence of the disputants. Bibliography Andrews, N. (2008) The Modern Civil Process. Mohr Siebeck. Balchin, P. and Rhoden, M. (2002) Housing Policy: An Introduction. Routledge. Barker, D. and Padfiled, C. (2007) Law. Elseiver. Clements, L. and Fairest, P. (1996) Housing Law: Text, Cases and Material. Routledge. Collins, S. and Cattermole, R. (2006) Anti-social Behaviour and Disorder: Powers and Remedies. Sweet and Maxwell. Cooke, E. (2001) Modern Studies in Property Law: Property 2000. Hart Publishing. First National Securities Ltd. v Hegerty [1985] Q.B. 850. Glasgow Corpn v Taylor [1922 All ER 1. Gray, K. and Gray. S. (2007) Land Law. Oxford University Press. Harpwood, V. (2003) Modern Tort Law. Routledge. Harris, P. (2007) An Introduction to Law. Cambridge University Press. Hibberd, P. and Newman, P. (1999) ADR and Adjudication in Construction Disputes. Wiley Balckwell. Housing Act 1988. Housing Act 2004. Jolley v Sutton LBC [2000] 1 WLR 1082. Law of Property Act 1925. Liddle v Yorkshire (North Riding ) CC [1944] 2 KB 101. Love and Lugg v Herity [1990] 23 HLR 217. Occupier’s Liability Act 1957. Phipps v Rochester Corpn [1955] 1 QB 550. Picard, C. (2004) The Art and Science of Mediation. Emond Montgomery Publication. Rent Act 1977. Shepperson, T. (2008) The Complete Guide to Residential Letting. Lawpack Publishing Ltd. Stewart, J. (2001) Environmental Health and Housing. Routledge. The Management Standards Set Out in the Management of Houses in Multiple Occupation (England) Regulations 2006. Tulk v Moxhay [1848] 41 ER 1143. Wheat v E. Lacon & Co. Ltd. [1966] AC 522. Read More