Landlords and Tenants Problem Question Plan PDF

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Landlords and Tenants Problem Question Plan 2) Charles is the registered proprietor of Baskerville Hall. In Baskerville Hall there are three bedrooms, a study, a library, a kitchen, two bathrooms and two large living rooms. He advertises ‘rooms for occupation, and receives a joint response from Jack, Beryl and Mortimer. Jack and Beryl explain that they are “in a relationship”, but wish to take separate rooms, and that Mortimer is their “very best friend”. On 1 September 2020, Jack, Beryl and Mortimer each move into one of the bedrooms in Baskerville Hall after signing separate agreements. Each agreement is stated to last for twelve months. They each include the following terms: i. this agreement is not intended to create the relationship of landlord and tenant; ii. the licensee will pay £2,000 per month for the licence; iii. the licensee is to allow all reasonable access by the licensor and their agents into the property; iv. the licensor may from time to time occupy the property, insofar as it does not interfere the licensee’s occupation; v. the licensee will not keep any dog(s). Since December 2020, Charles has been paying Mortimer to teach the cello to his twelve-year-old daughter. The lessons take place in the study room. Charles himself has not visited the property. In January 2021, Jack noticed that condensation has started to gather under the windowsill of his room, and that two small mouldy patches have started growing on his armchair as a result. Jack feels that the room is unfit for occupation, but he is reluctant to complain to Charles. This is because, when Jack moved in, Charles said “I hope you’re not the argumentative kind, as I’ve got plenty of people ready to take a property like this.” Critically discuss the legal issues arising. Intro Lease or license ● Start with street and mountford. ○ Leasehold is created when the agreement between parties matches this: ○ Owner objectively intends to confer a right of exclusive possession for a period that the law views as a ‘term certain’. ○ No exceptions apply. ○ The formalities for a legal leasehold estate (or failing that, an equitable leasehold estate) are met. ● It is important to note that although it was said to be required in Street, rent is not strictly necessary for a valid lease: Law of Property Act 1925; Ashburn Anstalt v Arnold. ● Exclusive possession

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Multiple occupancy case. ○ Joint tenants = four unities. Unlikely. ■ Possession: not sure if over the whole of the premises because they only signed for their rooms ■ Title: not interdependent since they’re not just a romantic couple. ■ Time: yes. ■ Interest: no because not collectively liable for rent. ○ Individual rights of EP over their own rooms. Likely. ■ The agreement does identify their rooms as their own (AG Securities v Vaughan (1990). ■ Can enjoy exclusive possession over these (iv) ■ They have separate EP over their rooms and then a license over the common parts: for an occupant to show EP over individual rooms, the agreement must specifically identify that room as theirs (AG Securities). ○ If they can’t show entitlement = licensee. Discount pretences. ○ (iv) - licensor has never actually visited the property, only his daughter and that is for lessons. However this is not proof. ○ Can’t occupy the property if there’s three bedrooms and they’re all taken. (Antoniades v Villers) ○ Something about the house being big enough. Term certain - yes: 12 months for all of them, a certain start and end. Fixed term. No exceptions - Charles’ sole motivation is not charitable so he did have the intention to create a legal relationship, and no occupants are service occupiers. Formalities for leasehold estate. ○ Legal leasehold estate = either: (i) a deed (s 52(1) LPA 1925) and, sometimes, registration; or failing that (ii) compliance with s 54(2) LPA 1925, for which the lease must take effect in possession, be for a term not exceeding three years, and be for the best rent reasonably obtainable without taking a fine. ■ This will bind any purchaser of the land. ■ Does take effect in possession (from the date of agreement) ■ The term is less than 3 years (12 months) ■ Rent isn’t that cheap. ○ Equitable leasehold estate = written agreement signed by both parties s 2(1) LP(MP)A 1989. ■ Binds a purchaser if it is protected by a notice (s 32 LRA 2002) or if it is an actual occupation overriding interest.

Revenge evictions and fixing the property ● Application of s11 LTA 1985 ○ Applies to residential leases granted for a term less than 7 years: ss 13-14. ○ S11 implies three obligations on the landlord’s part: i. To keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes).

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to keep in repair and proper working order the installations in the dwellinghouse for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity). iii. to keep in repair and proper working order the installations in the dwellinghouse for space heating and heating water. ○ The concept of ‘proper working order’ is wider than ‘repair’. The installations referred to above must be ‘able to function under those conditions of supply that it is reasonable to anticipate will prevail: O’Connor v Old Etonian Housing Association. ○ By way of summary. There will be a breach of implied repair covenant if: i. The implied covenant in s11 extends to the part(s) of the property in issue ii. Those part(s) are in ‘disrepair’ iii. Dealing with the disrepair would not constitute a ‘renewal’. ○ In the event of a breach, consider whether it will be necessary to give notice of the disrepair for liability to arise, as well as considering the work which will be needed to deal with the disrepair. (check handout for cases where this section was applied) Application of the Homes (Fitness for Human Habitation) Act 2018. Finish from downloaded handout. Protected from eviction under s 14 / deregulation.

Quick v Taff-Ely BC (1986) - Condensation ruined lots of furniture. CoA acknowledged that there was extensive damage to these but held there was no breach of the implied repair obligation (the things affected were not part of the exterior s11 LTA 1985). S11 does not extend to wider issues of non-fitness for human habitation such as mould or condensation falling outside of the accepted interpretation of ‘repairs’. There is an implied term that a landlord is not liable for disrepair in the leased area until they have notice of the problem and have failed to deal with it in a reasonable time: British Telecommunications plc v Sun Life Assurance Society plc (1996). Where the landlord is in breach of a repairing covenant, specific performance may be ordered. If only damages are awarded, these will aim to put the tenant in the position, so far as is possible, as if the breach had not occurred. If the landlord fails to remedy the disrepair having been notified of it, the tenant may carry out the repairs himself, and deduct the cost from his rent payments. Where a breach has occurred tenants are also able to seek damages for any injury or ill health suffered and the cost of alternative accommodation if the disrepair means they are unable to live in the property whilst repairs are conducted (Calabar Properties v Stitcher [1984] 1 WLR 287). Homes (Fitness for Human Habitation) Act 2018

The new Act amends the Landlord and Tenant Act 1985 and introduces an implied covenant into leases of less than 7 years that the landlord ensure that the dwelling is : ● (By way of a new section 9A(1) inserted into the LTA 1985) (a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and (b) will remain fit for human habitation during the term of the lease. ● Under a newly-inserted section 9A(4) of the LTA 1985, the implied covenant in section 9A(1) cannot be contracted out or excluded by the landlord either at the time the tenancy is granted or subsequently. ● This covenant applies to leases where the dwelling is let wholly or mainly for human habitation and (a) the lease is for a term of less than 7 years, or (b) the lease is of a kind mentioned in subsection (1A) or (1AB) of section 13 (leases to which section 11 applies: secure, assured or introductory tenancies for fixed term of 7 years or more). The term ‘fitness for human habitation’ is already defined in s10 of the Landlord and Tenant Act 1985. According to the 1985 Act, a property is to be regarded as unfit for human habitation if it is: ‘so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.’ This includes freedom from damp. 9A of the bill does propose some exemptions to the implied covenant. These include unfitness arising: ● from a tenant’s failure to use the dwelling in a tenant-like manner; ● as a result of natural disaster: fire, storm, flood or other inevitable accident; ● to carry out works or repairs requiring the consent of a superior landlord or other third party in circumstances where consent has not been obtained following reasonable endeavours to obtain it. The new law does nothing to redress the issues we have looked at in relation to a landlord’s implied repairing obligation under section 11 of the LTA 1985. S11 continues to operate and the difficulties associated with it remain. Notably, the 2018 Act does not provide any additional protection against retaliatory evictions, and legal aid will be available on the same basis as for disrepair claims – limited to claims to remedy issues causing a serious risk to health and/or safety of the occupiers. Legal aid will not extend to a damages claim or remedying lesser issues (save as part of a defence and counterclaim in possession proceedings.) Conditional fee agreements (‘no win no fee’) may be available for cases where they meet the solicitors’ criteria. We must also consider how the courts will interpret ‘not reasonably fit for occupation’? This is a question of fact in each case. The mere presence of one or more of the relevant factors is not enough to establish that a property is unfit.

The standard of fitness is that of ‘the ordinary reasonable man’ (Hall v Manchester Corporation [1915] L.J. Ch. 732, HL.) Pre-action protocol (where tenant takes action against landlord): provides specific procedures that must be followed. Both tenants and landlords may be required by the court to provide evidence that alternative dispute resolution has been actively considered. However, protocols can be complex, even if the dispute itself is not complex/worth a significant amount of damages. The use of protocols also pre-supposes that parties have access to legal advice/assistance and this is not always the case. - disadvantage to tenants with a lack of legal knowledge. The Homes (Fitness for Human Habitation) Act 2018 does not provide additional protection against ‘revenge evictions’. A ‘revenge eviction’ occurs when a private residential landlord, faced with a complaint from a tenant, serves them a notice (under s 21 of the Housing Act 1988) in order to end the tenancy. A private landlord can currently serve a s21 (Housing Act 1988) notice on a tenant if they want to evict them (commonly known as a ‘no fault’ eviction). The minimum notice period is 2 months and the notice must be in writing. Where a tenant has a fixed term tenancy there is nothing to stop a landlord serving a s21 notice once the fixed term expires. Provided these conditions are met, the landlord does not have to give any reason for eviction. These ‘no fault’ evictions can be difficult to challenge as provided the landlord has followed the correct procedure they are entitled to possession. It has been argued that Section 39 Deregulation Act 2015 has increased tenants’ protections from s21 eviction due to additional requirements imposed on landlords. A s21 notice is invalid if the tenant has not been supplied at the start of the tenancy with a gas safety certificate, an Energy Performance Certificate, evidence that a deposit has been lodged with one of the tenancy deposit schemes, and a copy of the Government’s ‘How to Rent’ guide. Section 33 of the Deregulation Act 2015 offers some protection against the use of s21 notices as a means of retaliatory eviction. Under s 33, if a local authority issues one of various notices to a landlord under the Housing Act 2004, the landlord may not serve a s 21 notice to end the tenancy for six months afterwards. The protection in this event can also operate retrospectively. In particular, any prior notice served by the landlord is invalidated if the tenant had first complained in writing to them, and had received either (i) no response in 14 days or (ii) no adequate response. Repair plan; ● S11 of the LTA 1985 applies to residential leases granted for less than 7 years (theirs is only 1 so it applies). s11(1) places the obligation on Charles to keep in repair the exterior of the house (including windows). However, it does not cover damage to furniture caused by mould / condensation (Quick v Taff-Ely BC (1986)). ● HFHHA 2018: homes now have to remain fit for habitation, not just at the start of the tenancy. HFHHA also covers freedom from damp (protects Jack).

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Exceptions: 9A states unfitness arising from untenantlike behaviour, natural disasters, or work requiring consent of a superior landlord.’ ○ However, courts interpret ‘not reasonably fit for occupation’ on a case-by-case basis - damp and condensation may not be enough for Jack. New law does not change LL’s implied repairing obligation (s11?) However, landlords are not liable for disrepair in the leased area until they have received a written notification from the tenant and they have failed to deal with it in a reasonable time (British Telecommunications v Sun Life something). Maybe mention pre-action protocol if he actually writes a notice to Charles and then he doesn’t do anything.

Revenge evictions plan; ● Where there is a fixed term tenancy like Jack’s an s21 notice can only be served once the term has ended. ● S39 Deregulation Act 2015 - increase in protections from s21 notices due to additional requirements for LLs. s21 notice is invalid if the landlord failed to supply the tenant at the start of the tenancy with: gas safety certificate, energy performance certificate, evidence that the deposit has been lodged in a deposit scheme, and a copy of the Gov’s how to rent guide. ● S33 Deregulation Act - any prior notice served by the landlord is invalidated if the tenant wrote to them in writing and received either no response after 14 days or no adequate response. Jack needs to write to him and complain....