Housing Law Advice - Assignment Example

HOUSING LAW ADVICE Part One A - Advice to Ms Johnson Ms Johnson,                         I have been asked to advise you with regard to the legal situation you find yourself in. In order of priority, the notice for eviction passed against you should be dealt with first According to Scottish law any decree passed on a defender’s failure to appear can be recalled.[1] Your failure to appear was caused by your ill health, and it is certain that the decree will be recalled. For that purpose it is needed that a minute be filed as soon as possible. It is also necessary for you to file your proposed defence by hiring the services of a solicitor or taking assistance from Citizens Advice or a Shelter Advice Centre.[2] Filing of a minute may allow your case to be heard again. The procedure for evicting a Scottish secure tenant is provided in the Housing (Scotland) Act 2001. Schedule 2 to the said act provides grounds on which court may order recovery of possession. The landlord has to satisfy the sheriff that you have failed to pay rent due and also that it is reasonable to evict you, considering various factors such as the amount of arrears, reason for arrears including unemployment, past history of tenant, duties of the local authority pursuant to orders of eviction with regard to social welfare legislation e.g. Children (Scotland) Act 1995. You can take the following lines of defence. (1)        Your employment was interrupted because of ill health and also because you did not get permanent employment. That you were hospitalized is also a factor which will be considered in your favour. (2)        You are now receiving benefits from the government, and you pay your rents out of these. As per the observation in Woodspring DC v. Taylor [3], receipt of benefits by a tenant is a material factor to be considered while deciding the application for eviction. Similarly, in Angus Housing Association v. Fraser [4] it was held that the sheriff should consider the fact that arrears direct are being paid and rent is taken care of by housing benefit. (3)        The fact that you were sequestrated prior to the decree being passed against you means that it has not been considered by the sheriff. This is another important factor in your possible defence. (4)        The landlord tenant relationship imposes duties on the landlord. The windows of your bedroom are badly fitting and your landlord has not carried out repairs even after seven months of his being informed. It is not clear from the instructions, but additional expenditure for heating due to the condensation may have led to arrears or a part of it. Also, you are entitled to withhold rent till the landlord carries out the repairs necessary. As per the observation in Mary Galloway -v- City of Glasgow Council [5], the landlord should have repaired the house within a reasonable period from the date of notice and if not then they would be in breach of express and implied obligations to repair the house. (5)        Your landlord should have taken into account the fact that you are unemployed. Your limited income and ill health caused in all probability by the improper condition of the house are also considerable factors while deciding reasonability of eviction.             According to a government assessment, about 40% of cases bought to the court resulted in a decree for eviction being issued. Less than 23% of the total cases bought to the court resulted in eviction.[6] On the basis of facts as you narrate them, there is a good chance of avoiding eviction. You can also seek full unemployment benefit from the government, as well as benefits for families. You are entitled for benefits because your children are dependant on you. Her Majesty’s Customs and Revenue department provides these benefits. It will take one year before some of your debts are automatically discharged. It will be of help to prepare a list of your creditors and see if you can defer payment to them until such time as you can get permanent employment.               In consultation with advisor at Jobcentre Plus programme. [7] you can explore ways and means to maximize your income and then offer your landlord repayment of arrears, which will also be a fact to be considered by the sheriff while deciding eviction case.             You should have demanded that inspection be carried out to ascertain the condition of windows of your home if it has not already been carried out.             Your ill health can be said to be a direct result of your being exposed to exposed to cold and condensation. You are entitled to sue for damages and compensation for your ill health. Part One B – Advice to Gordon and Michael Gordon and Michael,             I have been asked to advise you as to your tenancy and related matters. It is firstly necessary to understand the term of your tenancy. You are joint tenants, and have an equal right to occupy premises. If one of you wants to waive or abandon his tenancy, he can do so.  Your landlord served you with notice of 14 days but you are entitled to 4 weeks notice as per S. 112 of the Rent (Scotland) Act 1984. So the notice served on you is illegal. You have rented the premises from a private landlord after the Housing (Scotland) Act 1988 came into effect, which means that your tenancy is an assured tenancy. Your landlord did not serve you with AT 5 before the tenancy was created so it is not short assured tenancy. In lieu of an agreement in writing, at common law the courts will hold that you have a tenancy running yearly, as was held Gray v. Edinburgh University 1962 SC 157. However, if one of you wants to continue, he is entitled to do so. In that case, the landlord has to give you a notice that he intends to take out eviction proceedings against you. Then he has to obtain eviction order from the sheriff, and you can defend the case.             The landlord of a house subject to assured tenancy can seek eviction of the tenant only on one of the grounds specified in law.[8] Changing of locks denies you entry in your rented house, and you are entitled for compensation for illegal eviction. You are also entitled to continue as tenants till the landlord obtains eviction orders from the sheriff. However, Michael can’t claim illegal eviction as he had started removing his belongings from the flat.             Your landlord has sued you for unpaid rent. However, it is not clear as to how much arrears you owe him. Gordon has a right to seek from the court: (1)   An order requiring the landlord to let you in the premises occupied by you. (2)   Compensation in addition to the above (3)   Damages for illegal eviction. Part One C – Advice to James and Anne             I have been asked to advise you on your legal and financial difficulties. Your first priority should be to sort out your financial difficulties as your legal difficulty i.e. your landlord’s intention to start eviction proceeding arises from your inability to pay rent regularly and accumulated arrears. However, the sheriff may be entitled to refuse eviction as the intention of your landlord can be taken to mean that they want to recover arrears, as held in Edinburgh District Council v. Stirling.[9]             Your tenancy is a Scottish Secure Tenancy (SST). In order to recover possession, the landlord will have to comply with statutory requirements as laid down in the relevant enactment.[10] According to this the landlord must first issue a Notice of Proceedings for Recovery of Possession. The council has to give a notice of at least 4 weeks ending on the last day of the period for which the tenancy runs or the date on which the tenancy could have been brought to an end by a notice to quit had it not been a Scottish secure tenancy. Your tenancy runs from month to month starting from the first of every month. The landlord will have to wait till the end of March to start proceedings having served you notice. Thereafter, the notice will be valid for a period of six months. Then the landlord applies for issue of summons. In your case, the eviction is sought because of rent arrears, hence according to the Debtors’ (Scotland) Act, 1987 you can seek time to pay directions from the court. In this manner, you can propose a timeframe in which to pay back the arrears due from you.             In the circumstances, you should first contact the landlord and inform them of your willingness to mitigate the circumstances by various means. Debt Arrangement Scheme is one such beneficial scheme. In this, you can seek assistance to pay back the arrears of rent due from you. You are receiving full housing benefit from December. You can make arrangements for arrears direct i.e. the benefit goes directly to the landlord for mitigation of arrears. You can get your housing benefit back dated. You were entitled to it when both of you became unemployed as of May 2010, and you are entitled for six months of back dated benefit. This will be a substantial amount and help you to clear your arrears. Thus the matter can be resolved amicably.             In case the matter goes to court, the landlord will have to satisfy the sheriff that rent arrears are due from you. Then the landlord will have to satisfy the sheriff that it will be reasonable to evict you. The sheriff will consider the following factors in order to decide the reasonableness of your proposed eviction. (1)        Your willingness and inability to pay rent. (2)        Your illness in that you are suffering from psychological disturbances. (3)        The full housing benefit that you are now getting and your ability to pay back the arrears by getting back dated benefits. (4)        The intention of the landlord in seeking your eviction – if it is simply a matter of recovering arrears, the sheriff will be entitled to dismiss the action for eviction.             In order to avoid legal proceedings to be raised, you must meet the concerned person in the council and tell him of the situation that you find yourself in. Preferably, you should give a letter in writing to that effect.             In case the landlord follows due procedure and files eviction proceedings you can defend it by engaging a solicitor or getting help from Shelter Scotland and advice from Citizens Advice.[11] To prevent eviction, you must take up the plea of unreasonableness i.e. you have to show the sheriff that it is not reasonable to evict you from the premises as you are willing and able to pay back your arrears by arrears direct and back dated benefits.                  For your financial difficulties you can contact National Debtline.[12] You can also take free advice from Money Advice Trust.[13] Regarding your housing, you can take advice from Shelter Scotland . Part Two A –Advice to Mrs Saeed Mrs. Saeed, I have been asked to advice you regarding the condition that you find yourself in after the local authority in Edinburgh has informed you that you should move to Liverpool as you have a local connection there. Your status in the U. K. will be governed by relevant provisions of Immigration and Asylum Act 1999. As per the provisions, you have been granted refugee status by the Home Office. National Asylum Support Service (NASS) now known as Asylum Support ensures that the refugees’ rights regarding accommodation are protected. According to relevant regulations, you have to apply for asylum within 28 days of your being granted refugee status. You should apply at Asylum Screening Unit, Lunar House, 40 Wellesley Road, Croydon, London. The local authority in Edinburgh had provided you with temporary accommodation. It means that they have a duty to do so. A refugee has a right to stay at any place in the U. K., and there is no provision in law which states that you should stay within this or that place. As such it is the duty of Edinburgh local authority to provide you with temporary accommodation or benefit so as to pay your rent.              If the local authority has provided you with a notice in writing, you can seek review of the decision of the local authority. In the circumstances that you feel threatened by the behavior of the other occupants of the homeless hostel, you were within your rights to move out. A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.[14] As such, you are homeless and as children are dependant on you, you have priority need for accommodation.[15]             Local connection with reference to the housing arrangements in Scotland is governed by Housing (Scotland) Act, 1987 which provides for the determination of local connection of a person.[16] Any reference in this Part to a person having a local connection with a district is a reference to his having a connection with that district (a) because he is, or in the past was, normally resident in it and his residence in it is or was of his own choice; or (b) because he is employed in it, or (c) because of family associations, or (d) because of any special circumstances. According to the Code of Guidance on Homelessness, If an applicant is a former asylum seeker and has been housed previously in NASS (National Asylum Support Service) accommodation, the applicant has not formed a local connection with the relevant Local Authority in which the NASS accommodation is situated. This is because the applicant had no element of choice as to where the NASS accommodation was provided.               In view of the above provision, local connection does apply to you because you were not normally resident in any part of Scotland or U. K.; you have no family associations in any district and you are not employed. There are no special circumstances for your having a local connection Liverpool.  Even otherwise, if Edinburgh local authority notifies Liverpool local authority that you have applied for accommodation and the matter is referred to Liverpool, you have a right to be provided accommodation by the Edinburgh local authority till Liverpool authority determines whether conditions for referral are satisfied. Code of guidance (2005) for homelessness provides for good practice in deciding applications for homelessness by local authorities. Part Two B - Marie and Ian Marie and Iain,             I have been asked to advise you as to your legal rights and remedies available to you regarding your rented home. Your short assured tenancy was for a period only of six months and you have continued in possession of the house beyond that period (tacit relocation). Your landlord had not served notice in form AT 5 on you. But as he has served notice to quit, your tenancy has become a Statutory Assured Tenancy. According to law, the landlord will not be able to evict you without following due procedure. This means that the landlord will have to get an order from the sheriff for your eviction and possession of the house. The landlord has served you a notice to quit. Now the sheriff has to be satisfied that one of the grounds for possession mentioned in Schedule 5 to the Housing (Scotland) Act 1988 has been established.   Because of your tenancy being Statutory Assured Tenancy, it can be bought to an end only by following due procedure of law as provided for in Housing (Scotland) Act 1988 and on one of the grounds specified therein. The rent arrears are largely due to your not getting your priorities right which can be a direct result of your depression and anxiety difficulties. Also, the mutuality of contract with your landlord imposes a duty on him to keep the house in good repair which he has failed to do. You can demand a reduction in rent on this count. Firstly, the landlord is at fault by charging you a premium for so called administration fee. According to law a tenant is entitled to a document witnessing the tenancy agreement free of cost. No charge must be made for drawing up or copying the tenancy agreement as per the provisions of Housing (Scotland) Act 1988. The landlord has further committed breach of tenancy obligations by not fixing the roof of the house. The leak was reported to the landlord in October 2010 but no repairs were carried out even after more than three months have elapsed thereafter. Further because of the collapse of the roof of the children’s bedroom, it is not in use. For the said factors, you are entitled to a reduction in rent. The landlord is clearly in breach of contract and his express and implied liabilities. The landlord’s repairing obligations are laid down in the Housing (Scotland) Act 2006, S. 13 (1) (c) it provides that a house meets repairing standard if the installations in the house for the supply of water, gas and electricity and for sanitation, space heating and heating water are in a reasonable state of repair and in proper working order             However, the sheriff will have to consider the fact that the landlord has denied the facility of repair. He has not allowed the broken combi gas boiler since January and says he won’t fix it unless arrears are paid. The landlord can not forcibly evict you as it is a criminal offence. S. 2 of the Rent (Scotland) Act 1984 provides that eviction of residential occupiers unlawfully is an offence. Changing locks would be an act of illegal eviction for which you can claim compensation and damages. You can contact the police and file a complaint so that you have evidence of harassment at the hands of the landlord. The matter will be investigated by proper authority and if found correct, the landlord will be prosecuted. You can get a non-harassment order or an interdict by applying to the civil court. An interdict is a civil court order requiring a person to abstain from doing a particular act. If he violates the order, he can be arrested by the police. Breach of an interdict is a criminal offence, as the violator is committing contempt of court. You also entitled to sue the landlord for loss and damage caused to your property.             There is only a mention in the instructions about the suspension of your housing benefit and termination of incapacity benefit claims. I would be in a better position to advise you if I knew more. You should take effective steps to get continued the housing benefits.       Part Two C – Advice to Rob and Lisa   Rob and Lisa,             I have been asked to advise you regarding the summons for eviction served upon you by Lanarkshire council. You were evicted from Ayrshire council for causing nuisance to your neighbours. Your application for accommodation resulted in allocation of a house to you and you signed a notice under relevant provision.[17]So your tenancy is Short Scottish Secure tenancy in which you have limited rights as tenants. The Housing (Scotland) Act 2001 provides 15 grounds for eviction of tenants in Schedule 2. Grounds 1 to 7 are called ‘conduct grounds’ and 8 to 15 are called ‘management grounds.’ Ground 7 relates to antisocial behavior and ground 8 to nuisance caused by a tenant. The sheriff has to be satisfied if the grounds from 1 to 7 are applicable that iot is reasonable to grant eviction; in case of grounds 8 to 14 that other suitable housing is available to the tenant when the eviction order takes effect. As to eviction on ground 15 the sheriff has to be satisfied that it is reasonable to grant eviction and that alternative housing is available.             However, the council has now served you with a summons for eviction setting out grounds to recover possession. S 14 of the Housing (Scotland) Act 2001 gives the procedure for summary eviction of tenants. The landlord must serve a notice of 4 weeks or more from the date of service. According to S. 14 (5) of the said act, the notice ceases to have effect after 6 months from the date notified in it. The summons served on you is on the basis of notice issued on 5 January 2009 which says that the council may raise proceedings on 1 February 2010. The summons is served on 12 August 2010. You can defend the eviction action on the ground that the notice has ceased to be in force as the period of six months from the relevant date 1 February 2010 has expired.       Bibliography Statute Act of Sederunt (Small Claim Rules) 2002 Code of Guidance on Homelessness (2004) The Scottish Government http://www.scotland.gov.uk/Publications/2004/05/19432/38198   Housing ( Scotland ) Act, 1987 Housing ( Scotland ) Act, 2001 Case Law Angus Housing Association v. Fraser 2004(4) HLR 83 Edinburgh District Council v. Stirling 1993 SCLR 587 Mary Galloway v. City of Glasgow Council Glasgow Sheriff Court, 12 April 2001 http://www.govanlc.com/galloway  retrieved 25th February 2011   Woodspring DC v. Taylor (1082) HLR 95 Internet Articles Asylum Seekers in Scotland http://www.scotland.gov.uk/Publications/2003/02/16400/18349 retrieved 25th February 2011   Eviction of Tenants in the Social Rented Sector: Protection of Tenants with Rent Arrears (Author N. A.) Internet article http://www.scotland.gov.uk/Publications/2010/03/29163921/7 retrieved 24th February 2011   Helping people across the UK to tackle their debts and manage their money wisely http://www.moneyadvicetrust.org  retrieved 25th February 2011.   How to claim benefit. (Author N. A.)  Internet article http://www.direct.gov.uk/en/MoneyTaxAndBenefits/BenefitsTaxCreditsAndOtherSupport/BeginnersGuideToBenefits/DG_4016266  retrieved 25th February 2011 Legal obligations as a landlord http://www.pkc.gov.uk/Housing/Private+housing/Private+landlords++advice+and+support/Landlord+Responsibilities.htm Shelter Scotland the Housing and Homelessness Charity (Author N. A.) Internet article http://scotland.shelter.org.uk/getadvice/advice_topics/eviction/going_to_court_for_eviction/what_can_i_do_if_decree_is_granted retrieved 24th February 2011   What is National Debtline (Author N. A.) Internet article http://www.nationaldebtline.co.uk/scotland/about_us.php   retrieved 25th February 2011   [1] Act of Sederunt (Small Claim Rules) 2002, Rule 22.1  [2] Shelter is a housing and Homelessness Charity working in England and Scotland [3] Woodspring DC v. Taylor (1082) HLR 95 [4] Angus Housing Association v. Fraser 2004(4) HLR 83 [5] Mary Galloway v. City of Glasgow Council Glasgow Sheriff Court, 12 April 2001 [6] Eviction of Tenants in the Social Rented Sector: Protection of Tenants with Rent Arrears, Internet article 2009. [7]  Jobcentre Plus is a government institution. [8] Housing ( Scotland ) Act 1988 Schedule 5. [9] Edinburgh District Council v Stirling 1993 SCLR 587 [10] Housing ( Scotland ) Act 2001 S. 14 [11] Citizens Advice is a charity [12] A national helpline for people in debt [13] A charity for people in debt [14]  Housing ( Scotland ) Act 1987 S. 24 (2A) [15] Housing ( Scotland ) Act 1987 S. 25 (1) (a) [16] Housing ( Scotland ) Act 1987 S. 27 [17] Housing ( Scotland ) Act 2001 S 34 (4) Read More