Housing Law and Councils Tenancy Protection Team - Essay Example

Housing Law Housing is one of the three most important and basic needs of man. This is one of the factors that differentiate man from all other being on earth. The very fact that human beings hold a special place for dwelling while allocating different areas for different purposes makes him stand apart from other living creatures who build homes for themselves and their young. A house offers one the comfort of privacy, shelter and security among many other things. There are different forms of housing for different strata of society. While some are affluent enough to own their homes, others inherit the same, while some others due to many constraints prefer to rent or lease or mortgage their dwelling as the case may be. This gives rise to the tenant and the landlord, the two people who enter into mutual agreement, or a relationship that is based on monetary gains as well as trust. As time progressed, laws and enforcement were brought into force to facilitate the smooth running of this relationship. Here we deal with these laws in the case of James who was evicted from his house by a private landlord or a letting agent – South Bank Properties. A private landlord is a person who rents out housing. Though James was a tenant with this agent for the past two years the eviction was done without any prior notice served to him. The law states that any repairs to be done in the sub let property should be undertaken by the landlord and not the tenant though the tenant can do so under a mutual agreement between the landlord and himself. Though James had complained to the landlord for the last three weeks about the repair works that had to be taken for the faulty heating system, the condensation in the bathroom and kitchen, and the broken windows he received no action other than empty promises on the landlords behalf which prompted him to lay back on a couple of weeks rent, which resulted in landlord changing the locks to his apartment while he was out and asking him to collect his personal belongings from the office. Taking into account the fact that James has mental health problems which for the past two years of occupancy did not affect the landlord or his neighbours, this kind of behaviour would amount to harassment by the landlord and discrimination of the disabled. Under the rules of tenancy the landlord has certain duties and obligations to the tenant that can change with the type of tenancy, but the basic rules of all tenancies remain the same. Some of these are Not disturbing their tenants Following the correct procedure if they want the tenant to leave Carrying out certain kinds of repairs Meeting safety standards Following the rules on rent Giving the tenant certain information Carrying out repairs like general housework, unclogging the sinks, changing light bulbs and the like has to be carried out by the tenant, while major repairs of installations, exterior and the structural repairs have to be carried out by the landlord. (Landlord and Tenant Act, 1985 (sec 11)) unless the tenancy is fixed for a long period of time, ie more than seven years, all repairs and the responsibility for major repairs lies solely with the landlord. Though the landlord is not responsible for any repair arising from the damage to property caused by the tenant, and the landlord cannot recover these costs of labour and repair from the tenant through a service charge. But he can apply for a fresh rise in the rent to the housing council, stating that the repairs carried out on the premises increases the value of the property and that the rent should be proportionately increased. Whatever these repairs that James as a tenant has stated must be undertaken by the landlord and these repairs must be communicated to the landlord in writing and this serves as a proof, though it is not mandatory to give the complaint in writing. Since South Bank Properties have not undertaken repairs, James can proceed against them in two ways both of which he can do concurrently. Firstly he can approach the council’s environmental health department to ask them to inspect the building and if they were to find the disrepair in a serious state, they would serve a legal notice to South Bank Properties to undertake the repairs as soon as possible failing which there could be criminal prosecution (Occupiers’ Liability Act 1957 (sec 2)). Secondly, James can initiate criminal or civil action against the landlord wherein the court will direct them to undertake the repairs as well as pay a monetary compensation to the plaintiff. The tenant in by no means can be made to undertake the repairs or incur costs of the repairs that are by law the responsibility of the landlord though they can do so after a mutual written agreement citing the terms and conditions for the same. Another scenario would be that if James after repeated requests and ample time to the landlord undertakes the repairs himself thereafter deducting the actual costs of the said repairs towards future rent payments. Addressing the issue of the landlord changing the locks while the tenant was out, this amounts to unlawful and illegal eviction and warrants legal action. Since James was a tenant in the same dwelling for the past two years, we can safely infer that he had a statutory tenancy, which means that as long as the rent was paid regularly and his behavior was unquestionable, it would be difficult for the landlord to evict him. The court will uphold the decision in favor of James if he points out and proves the lapses on the part of the landlord. The landlord cannot under any circumstance evict the tenant without furnishing him with a written legal valid notice to vacate while at the same time providing the tenant a correct period of notice and grounds for termination. With reference to the fact that James had defaulted in the rent payment of two weeks, Southern Bank Properties can initiate action against him as the law states that if the rent is not paid for seven days then on the eighth day the landlord can serve a notice to remedy stating that if the unpaid amount is paid within seven days then no further action will be taken and if the same is repeated a notice to vacate will follow which gives the tenant 14 days to find alternate accommodation. On the other hand If the tenant feels that the landlord is applying for a termination and possession order in answer to the tenant making a complaint or seeking information of their rights, he can notify the tribunal wherein the tribunal can refuse to make the order if they are satisfied with the tenant’s argument. A tenant cannot be evicted by the landlord until he has first obtained a possession order from the court and that order has to be enforced by a bailiff appointed by the County Court. The absence of the fulfilment of these criteria makes the actions of the landlord illegal and the eviction null and void. In the Protection from Eviction Act 1977, the criminal offence of Unlawful Eviction was laid out and has been amended again in the Housing Act 1988. This offence takes place when the landlord or his anyone working on his behalf coerces or attempts to persuade the tenant into leaving the premises without following proper legal procedures. Some examples of unlawful forms of eviction are the landlord changing the locks whilst the tenant was out the landlord physically throwing the tenant out the landlord stopping the tenant from getting into the said accommodation Since this is the circumstance in the case of James, he can contact the Council’s Tenancy Protection Team and report the incident, secondly he can contact the Police, who will arrive on the property and brief the landlord of the correct procedure for eviction. They would also inform the landlord that they may be committing a criminal offence if they evict the tenant without following the correct legal procedure. James can also try to get a neighbor or some one who will be an independent witness and was present on the scene at the time that the incident took place, and also keep the keys to the property that he was given to the property before the locks had been changed. All this aforesaid measures will strengthen the case he has against the landlord, citing unlawful eviction. (Brent Council’s Pvt Housing Information Unit, 5/17/06) Under the specific tenure such as secure tenancy, James enjoys the Security of Tenure which is the legal right of occupation that people have and are entitled to while they occupy their accommodation. According to the clause of Security of Tenure the landlord can evict the tenant only if the tenant has failed to pay the rent or repair the property or carry out any other obligations imposed by the existing lease the landlord will provide “suitable alternate accommodation for the tenant on reasonable terms” the landlord wishes to carry out repairs or demolish part or full of the property which cannot be done with the tenant still in occupation. Or the landlord decides to occupy the premises for his own business or his home. If the case is any of the above three reasons, then the landlord is expected to compensate the tenant for the inconvenience with the compensation in accordance with the rate able value of the property (Security of Tenure, Landlord and Tenant Act, 1954) Understanding these rights is very important to a tenant as it deals with the various aspects of the tenants rights to stay in the premises, with relevance to getting repairs done and many such clauses. Using this as a reference and guide against unlawful eviction and if James can provide adequate evidence to prove that Southern Bank Properties has harassed or unlawfully evicted him and that the landlord is unwilling to remedy the situation out of his own accord, he can apply to the Council who has the power to apply to the Magistrates Court for a warrant to arrest the landlord. Such a warrant can be obtained quickly and will result in the erring landlord being held in custody until bail conditions requiring the landlord to either reinstate the tenant or to refrain from any further acts of harassment against the tenant are met and adhered to. James can also sue the landlord for emotional damage and also obtain an injunction to get back to his dwelling and prevent any further harassment (Tenants Information Pack - Harassment and Unlawful Eviction, 5/17/06 Brent Online), The court also will and can award a substantial sum to the tenant to compensate him for his mental agony during the period of eviction (Housing Act, 1988). James has due to the actions of the landlord, become homeless and is in need to exercise his rights. Firstly he must file for a “homeless” status at the Council. Under Part VII, of the Housing Act 1996, this was amended by the Homelessness Act 2002, he is homeless as he fulfils the criteria of having an accommodation, but cannot gain entry to it. He also falls under the category of Priority Need. A “person is in priority need by reason of vulnerability through physical or mental health”( The House of Commons Committee, Enquiry into the Homeless, WATKINSON, Convenor, HLPA's Law Reform Sub-Committee, SEPTEMBER 2004). As part of this process, the council’s medical officers have to certify that James is suffering from mental illness not amounting to social inconvenience. If need be James can apply to the Council for funding of legal aid. Though contrary to popular belief that homelessness act makes provisions for all homeless people, this act gives cover to only those who are “vulnerable” (s185/189, Homeless Act, 1996). This is emphasised by the Courts definition of “vulnerable" as "whether [the Applicant] is, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable person would be able to cope without harmful effects" ( R v Camden LBC ex p Pereira 1999 31 HLR 317 @ 330 ) So, in this case, the tenant presents a strong case of Homelessness and is entitled to certain rights and privileges. This entitles James to approach the Council in his area and petition them for assistance. Since in this case, he is in Priority need, as well as has a local connection as he has resided there for a specified period of time, the Council has a duty to find him alternate temporary accommodation while they make enquiries and investigate the grounds for homelessness. The Council is also entitled to help him with assistance to prevent homelessness for him. If a homeless person, who is receiving financial aid from the government, becomes homeless, during the period of which he can still collect the same from the Department for Work and Pensions rather than have it sent to him at the previous address of residence. He is also entitled for legal aid and if James is in a crisis situation, he can apply for a loan to cover emergency expenses like having to live in a bed and breakfast. But this loan does not apply to people who have failed to pay earlier loans taken by them. These loans are given out by the social fund. During the period of homelessness, a person is still entitled to exercise his voting rights, so no one can prevent him from being able to exercise his legal obligations or from enjoying any other benefit an ordinary citizen is entitled to. Social services have a duty to help James even if the Housing executives have expressed their inability to do so. Under the homelessness legislation the social service cell has a duty to provide temporary accommodation and in certain cases in the long run permanent housing as the case may warrant. But according to the Council, the tenant evicted without proper legal procedure by the landlord still has the right to continue to live in the disputed premises. The council has to besides giving the tenant accommodation also provide facilities for storage of his personal belongings. If James is offered alternate accommodation under Part 6 of the 1996 Act (the allocation scheme) by the local housing authority and is not satisfied with it due to believable reasons he then reserves the right to ask the housing authority to review the same (Section 8, (s 193(2),1996 Act). The fore stated case represents a very strong legal angle in favour of the tenant in any court of law. Hence, he stands to gain from any civil or criminal suit he may file against Southern Bank Properties. He can therefore, challenge any action taken by the landlord regarding the eviction and the status of disrepair leading to the non-payment of rent arrears. References: Landlord and Tenant Act, 1985 (sec 11 Occupiers’ Liability Act 1957 (sec 2) Brent Council’s Pvt Housing Information Unit, 5/17/06 Security of Tenure, Landlord and Tenant Act, 1954 Tenants Information Pack - Harassment and Unlawful Eviction, 5/17/06 Brent Online R v Camden LBC ex p Pereira 1999 31 HLR 317 @ 330 ) Read More