According to the report, for the first time more people on benefits will be chasing homes than the market currently provides. The study shows in many parts of the country there will be thousands more welfare claimants than there are properties that can be afforded by benefits alone.

The result is that in many urban areas there will not be enough inexpensive homes to rent for those claiming local housing allowance. The problem is most acute in central London where in two of the country’s richest boroughs: Westminster and Kensington and Chelsea, more than 35,000 homes will at a stroke become unaffordable to those attempting to live on housing benefit.

It’s unlikely that the poor can migrate to other parts of the capital: in east London Newham there are twice as many claimants as there are low cost homes. There’s no room in the suburbs either. In Croyden 17,000 people will be chasing the 10,000 properties that can be paid for with local housing allowance levels.

The effect is not just in the south east. Before 2012 Birmingham had more than 37,000 homes with rents that could be paid for by housing benefit. Now, 34,500 benefit claimants will be chasing just 23000 low-cost houses. On the Mersey, Liverpool’s 21,000 people collecting the allowance will only be able to afford 12,000 homes in the city.

Take a look at the interactive map on the Guardian datablog to look at the figures for your area. The data can be downloaded too.

SMS repayment ID reminders
Tenants can text The DPS requesting a reminder of their repayment ID. The DPS will instantly issue the reminder via return text message so it is important that landlords ensure a correct mobile phone number is registered for their tenants.

New registration type
Organisations such as NHS Trusts, companies or Universities can register deposits as an ‘organisation’ rather than ‘letting agent’ or ‘landlord’, if they do not fall into either of these two categories.

Incremental deposit payments
Landlords, letting agents and other organisations can now pay deposits in stages if their tenant is unable to pay the full deposit upfront, or has agreed a payment plan prior to taking the tenancy.

Enhanced direct transfer payment service
This enhanced process makes it easier for landlords, letting agents and other organisations to pay for new deposits.

Ability to cancel joint repayments if started in error
Previously the requesting party would have had to contact The DPS to rectify any errors, causing delays in getting their deposits back.

Revamped website
The new website allows easier navigation to the pages that visitors need to access. Whether the user is already registered and protecting deposits or simply browsing the site, they can quickly access information that is relevant to them with regard to managing deposits or getting help online.

Further details can be found on their blog.

Article 8 of the Convention of Human Rights protects the individual’s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area within reasonable limits.

The applicants have resided in a house in Malta owned by them since 1994. The house is one of three houses in a remote area of grassland. Every year, on the occasion of certain village feasts, firework displays are set up in the fields close to the applicants’ residence (a distance of 150 metres or more).

The applicants alleged that every time fireworks were let off from this area they are exposed to grave risk and peril to their life, physical health and personal security. Moreover, the heavy debris produced caused considerable damage to the residence.

In consequence, over the years the applicants complained to the Commissioner of Police (“CoP”), but no remedial action was taken.

Fireworks in Malta have a long-standing tradition which is still very much alive in the crowded calendar of village feasts that take place all over Malta and Gozo, especially in the summer months. The facts of this case deal with a specific area where fireworks are let off during two separate weeks annually and only during particular days, therefore not on a daily basis during those weeks.

The Court noted that the applicants acquired the property while aware of the situation of which they were now complaining. Notwithstanding that the previous owners had informed them of their experience, the applicants proceeded to purchase the property and made it their home. The Court considered, that this was a weighty factor in the relevant balancing exercise, irrespective of the fact that they were lawfully entitled to live there.

The Court found that the authorities had not overstepped their margin of appreciation by failing to strike a fair balance between the rights of the individuals affected to respect for their private life and home and the conflicting interests of others and of the community as a whole, nor did it find that there had been fundamental procedural flaws which impinged on the applicants’ Article 8 rights.

Although this is a European case, it is worthy of a reminder[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest'] of the case Miller v Jackson[1977] EWCA Civ 6. The opening statement of Denning LJ is probably all that is needed to figure out the outcome of the case but the judgment is worthy of a read for anyone who may have the time and inclination. (Note: The idea of quoting the Miller case within this article was stolen from the Nearlylegal bog!)

In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, lie has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.

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Thankfully, the law of appropriation is relatively clear and established. It was explained in good detail in the Court of Appeal case[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest'] Thomas v Ken Thomas Ltd [2006] EWCA Civ 1504 where at para 19 it was stated (author added words [landlord] and [tenant]):

19.  The relevant principles are accurately set out in Chitty on Contracts, 29th Edition Vol 1 at paragraph 21.059-21.061:

“21.059: Rights to appropriate payments. Where several separate debts are due from the [tenant] to the [landlord], the [tenant] may, when making a payment, appropriate the money paid to a particular debt or debts, and if the [landlord] accepts the payment so appropriated, he must apply it in the manner directed by the [tenant]; if, however, the [tenant] makes no appropriation when making the payment, the [landlord] may do so.

“21.060: Debtor’s rights to appropriate. It is essential that an appropriation by the [tenant] should take the form of a communication, express or implied, to the [landlord] of the [tenant's] intention to appropriate the payment to a specific debt (or debts) so that the [landlord] may know that his rights of appropriation as [landlord] cannot arise. It is not essential that the [tenant] should expressly specify at the time of the payment, which debt or account intended the payment to be applied to. His intention may be collected from other circumstances showing that he intended at the time of the payment to appropriate to a specific debt or account. ….

“21.061: Creditors’ right to appropriate. Where the [tenant] has not exercised his option, and the right to appropriate has therefore devolved upon the [landlord], he may exercise it at any time “up to the very last moment” or until something happens which makes it inequitable for him to exercise it. [I omit the rest of the paragraph].”

Therefore, if the tenant when paying the £200.00 says “this payment is for my new tenancy” (or similar) then, the landlord is bound by that statement. However, if the tenant remains silent, it is for the landlord to decide where to appropriate the amount (unless it can be somehow implied as to which tenancy the payment was for). Of course, the landlord should always appropriate to the previous tenancy because that way the new tenancy is developing arrears making the section 8 notice on rent arrears grounds easier.

Where an appropriation is done by the landlord, it would very wise to insert details of the appropriation on any receipt issued as this would assist with any questions that may arise later and would also help with any question of “implied” appropriation.

Housing Benefit

One unanswered question (by the courts) though is what about a housing benefit payment? The cheque or statement will always contain the dates to which the payment relates. Are these dates appropriating the amount to those specific dates and no other? I would respectfully submit no. Our view is that the law of appropriation remains as described above and that the dates on the cheque or statement are nothing more than showing the dates of the tenant’s “entitlement” to housing benefit and are not necessarily dates showing the actual “rent” being paid. It is therefore still acceptable for a landlord to appropriate a housing benefit payment to an earlier tenancy for example in our view.

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Normally, I would make this type of article fully visible to the general public because of it’s importance. However, I haven’t done an article for members for a short while now so to give members the benefits, I have locked down most of this article. However, it is my intention that I will make this fully public in a couple of weeks or so time and this way members get the immediate benefit.

Of interest to private landlords in particular will be section 184 of the Act which makes significant changes to the tenancy deposit provisions contained in the Housing Act 2004.

Highlights of the changes are:

• The time for protecting a deposit is increased from 14 days to 30 days
• The time for supplying the prescribed information is also increased from 14 days to 30 days
• The time limit of 30 days will be absolute and protection (or providing prescribed information) after 30 days will not prevent a penalty being payable to the tenant [authors note: but by doing so albeit late may well reduce the penalty]
• The penalty payable will be between the amount of the deposit and up to three times deposit as the court sees fit
• A former tenant [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']may make a claim for the penalty so overturning the decision in Gladehurst Properties Ltd v Hashemi[2011] EWCA Civ 604.
• If a landlord has failed to protect within 30 days, the landlord may only serve a section 21 notice by repaying the deposit in full, making deductions that are “agreed” with the tenant or if an application for the penalty has been determined.
• If a landlord has protected the deposit within 30 days but failed to provide the prescribed information, then it would seem late providing of the prescribed information is permissible in order to then serve a section 21 notice.

To summarise with some common scenarios, the following will apply:

Penalty provisions (see later for section 21 notice prohibitions):

Deposit protected and prescribed information given within 30 days of receiving the deposit

It’s all good. No problems! No penalty payable.

Deposit protected and prescribed information given on day 45 (so 15 days late)

If applicant is currently a tenant when application is made AND hearing held whilst applicant is a tenant, the following will be ordered (without any defence available to the landlord)

• Order the person who appears to be holding the deposit to repay it or, order that person to protect the deposit [authors note: strange this has been kept because if DPS protecting deposit no "person" is holding deposit but the court is required to make one of those two orders] and,
• The landlord must pay the applicant (tenant) not less than the amount of the deposit and not more than three times deposit within 14 days. [It is submitted in a case where deposit is only 15 days late, the lowest possible amount would normally be ordered].

If applicant is a former tenant (or was a tenant at time of application but is no longer a tenant at time of hearing), the following will be ordered (without defence). It is worthy of note, the former tenant will have 6 years to make a claim [section 5or 9 Limitation Act 1980].

• The court “may” order the deposit to be repaid to the applicant (the use of the word “may” indicates deductions for rent arrears or damages may be claimed and offset at this stage or, if deposit already repaid this is unlikely to be ordered) and,
• The landlord “must” pay the applicant (former tenant) not less than the amount of the deposit and not more than three times deposit within 14 days. [It is submitted in a case where deposit is only 15 days late, the lowest possible amount would be payable].

Deposit NEVER protected (nor prescribed information given) by the time of any hearing. Application by a former tenant after 4 years and landlord has never repaid tenant the deposit:

• The court may order the deposit to be repaid to the former tenant and,
• The landlord “must” pay the applicant (former tenant) not less than the amount of the deposit and not more than three times deposit within 14 days. [It is submitted in a case where deposit never protected, the highest possible amount would be payable].

Deposit protected within 30 days but prescribed information given on or after day 31

If applicant is currently a tenant when application is made AND hearing held whilst applicant is a tenant, the following will be ordered (without any defence available to the landlord)

• Order the person who appears to be holding the deposit to repay it or, order that person to protect the deposit [authors note: strange this has been kept because if DPS protecting deposit no "person" is holding deposit but the court is required to make one of those two orders] and,
• The landlord must pay the applicant (tenant) not less than the amount of the deposit and not more than three times deposit within 14 days. [It is submitted in a case where prescribed information is slightly late, the lowest possible amount would normally be ordered].

If applicant is a former tenant (or was a tenant at time of application but is no longer a tenant at time of hearing), the following will be ordered (without defence). It is worthy of note, the former tenant will have 6 years to make a claim [section 5or 9 Limitation Act 1980].

• The court “may” order the deposit to be repaid to the applicant (the use of the word “may” indicates deductions for rent arrears or damages may be claimed and offset at this stage or, if deposit already repaid this is unlikely to be ordered) and,
• The landlord “must” pay the applicant (former tenant) not less than the amount of the deposit and not more than three times deposit within 14 days. [It is submitted in a case where prescribed information was slightly late, the lowest possible amount would be payable].

Prohibition of serving a section 21 notice:

Deposit protected and prescribed information given within 30 days of receiving the deposit

• It’s all good, a section 21 notice may be served at any time but you must wait until after an authorised scheme is “holding” the deposit before serving.

Deposit protected and prescribed information given on day 45 (so 15 days late)

Even though the deposit has been protected, because it was late a section 21 notice may still not be served without more. In order to serve a section 21, the deposit must be:

• Repaid in full to the tenant or,
• Repaid with such deductions as are agreed between the landlord and tenant (so offsetting against rent for example would need the tenant’s “agreement” first) or,
• An application by the tenant has been made under section 214(1) (penalty provisions discussed above) and that application has been determined by the court, withdrawn or settled by agreement between the parties.

Deposit NEVER protected (nor prescribed information given):

• No section 21 notice maybe served.

Deposit protected within 30 days but prescribed information not given (or insufficient information given)

• No section 21 notice maybe served until such time as the prescribed information has been given (the fact that the prescribed information and only the prescribed information is late is OK for serving a section 21 notice but the penalty would still be payable as above)

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(5) Nothing in this section (or in section 14 below) affects the right of the landlord and the tenant under an assured tenancy to vary by agreement any term of the tenancy (including a term relating to rent).

There are certain variations that will operate as a surrender and re-grant of a tenancy which include:

[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']

• Where the extent of the demise is increased [Well Barn Farming v Backhouse [2005] 3 E.G.L.R. 109]
• Where the length of the term is increased [ibid]
• The substitution of one suite of rooms for another operates as a surrender and re-grant. [Giles v Spencer (1857) 3 C.B.N.S. 244]

However, terms that do not operate as a surrender and re-grant but instead are a simple continuation of the existing tenancy include:

• A mere increase in rent does not operate as a surrender and re-grant [Doe d. Monk v Geekie (1844) 5 Q.B. 841; Jenkin R. Lewis v Kerman [1971] Ch. 477; Friends Provident Life Office v British Railways Board [1996] 1 All E.R. 336]

I would hold … In the absence of an increase in the extent of the premises demised or of the term for which they are to be held, both of which would change the legal estate, I can see no reason why the lessor and assignee could not achieve the changes they desired in the terms of the lease without the law implying its surrender and a re-grant for the remainder of the term of the lease. [Beldam L.J. Friends Provident Life Office v British Railways Board [1996] 1 All E.R. 336]

• A reduction in rent is no surrender [Crowley v Vitty (1852) 7 Exch. 319; Buttery v Pickard (1946) 174 L.T. 144.][/amember_protect]

As it seems to me, on the thread there are four suggestions as to the law:

• It is illegal for a landlord to hold a set of keys – This has been resolved as human error and our article here.

Then, three new suggestions namely:-

1. There is no automatic right for a landlord to hold keys,
2. To be safe he should obtain the permission of the tenant but the tenant could rescind this permission anytime, and
3. A tenant has a TOTAL RIGHT to change a lock

Let’s start at the beginning. Nobody is disputing anytime throughout the thread that the tenant’s right to quiet enjoyment overrules the landlord’s right of entry. This, I entirely accept and will go a step further and actually provide the case law where this comes from.

Exclusive possession is the ability on the part of a tenant to exclude all persons, including the landlord, from possession. [Street v. Mountford [1985] 2 W.L.R. 877]

However, the holding of keys by a landlord is not a breach of the tenant’s right to quiet enjoyment. The question to ask is why those keys are being held. Assuming those keys are being held solely for the purpose of carrying out landlord’s responsibilities such as repairs, gas safety record etc. then the landlord may hold those keys [Aslan v Murphy (No 1 and 2) [1989] EWCA Civ 2]. However, if the keys are being held for the purpose of entering twice a day just to annoy the tenant, then still the holding of keys are not the breach of quiet enjoyment, it is the entering twice a day that is (I assume case law is not needed for that assertion!)

There is no automatic right for a landlord to hold keys

It is respectfully submitted this is incorrect. We live in a free country meaning an individual may do anything they like unless there is some Act of Parliament, Regulations, orders, case law (common-law) or finally contractual term prohibiting or requiring an individual to do or not to do something.

It is an implied covenant of every tenancy granted for a term of less than seven years that “…the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours’ notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair.” [s.11(6) Landlord and Tenant Act 1985].

You will note however, that s.11(6) is only allowing a landlord to enter “for the purpose of viewing their condition and state of repair“. It is not a covenant allowing the landlord to actually carry out repairs. This is where assured shorthold tenancies have an advantage for landlords and to make our life easier section 16 Housing Act 1988 provides (emphasis added):-

It shall be an implied term of every assured tenancy that the tenant shall afford to the landlord access to the dwelling-house let on the tenancy and all reasonable facilities for executing therein any repairs which the landlord is entitled to execute.

As it is an implied term that the tenant shall “afford” access to the landlord, it is in turn an implied (or automatic) right that a landlord may hold keys. (You will also note there is no requirement for prior notice to be given when actually carrying out the repairs, compare with s.11(6) although that doesn’t give an automatic right of entry)

The tenant could rescind this permission anytime

As a landlord has an implied (or automatic) right to hold keys as discussed above, could the tenant rescind this right at anytime? It is respectfully submitted this is not correct. There is no case law to support either way but I think section 11(6) L&TA1985 and section 16 Housing Act 1988 above is sufficient. Parliament could have placed at the end of section 16 that a tenant could opt out of the requirement to afford access upon giving notice for example. However, Parliament have chosen not to and have made the term in every assured shorthold tenancy an absolute right for a landlord with no preconditions attached.

In practical terms, how would this work anyway? Presumably the tenant would need to write to the landlord seeking that the landlord destroys his set of keys? Then what? As with any purported “right” the tenant would presumably need to get a court order enforcing his purported right. Good luck with that is all I can say to the tenant! There is unfortunately no case law to back up what I am saying here (probably for obvious reasons) but I think I can safely say that if a tenant is able to write to me and obtain a court order that I destroy my set of keys, it’s time for me to sell up!

A tenant has a TOTAL RIGHT to change a lock

Again, I cannot agree although I will admit this gives landlord’s more of a problem than if a tenant attempted to seek an order for a landlord to destroy his keys. Firstly though, there is NO “right” for a tenant to change the locks [Bishop v Elliott [1855] 11 Ex. 113]

With respect to locks and keys, bolts, and bars, there can be no question, whether properly called fixtures or not, that the tenant cannot remove them; they are as much part of the house, and to go with it, as the doors or windows to which they may be attached or belong … (Coleridge, J)

To say therefore, that the tenant can change the locks as a “right” is no different to saying they can remove the doors and windows to which the lock is attached.

In addition, a term of the tenancy is perfectly acceptable in prohibiting both landlord and tenant changing the locks as long as the purpose of the provision is for allowing the landlord entry in the event of an emergency [Aslan v Murphy (No 1 and 2) [1989] EWCA Civ 2]. If it were a tenant’s right, I’m quite certain the Office of Fair Trading would have added the clause prohibiting changing locks to their very lengthy and detailed list of example terms guidance that are unlawful under the Unfair Terms in Consumer Contracts regulations 1999 and suggestions of how to reword them (or delete them).

If however, the tenant has changed locks, the problem that arises is what is the loss suffered to the landlord as a result of the breach of the tenancy? This I do accept makes enforcing the term problematic. For assured shorthold tenancies, the procedure could include a section 8 notice on Ground 12 (breach of the term of the tenancy other than rent). But, Ground 12 is discretionary, so although proving the breach of the term will be relatively easy, the court may make an order for possession only if it considers it reasonable to do so [s.7(4) Housing Act 1988]. Therefore the question becomes does the breach warrant possession? Probably not in my view although I would submit it is close and depends on the individual circumstances of the case. A more likely outcome is that the order for possession may be suspended as long as the tenant provides the landlord with a set of keys for example after which the order would cease.

The alternative would be to bring an action to recover damages for the breach or an action to compel specific performance of the contract.

To summarise therefore, there is NO right to change the locks but once the locks have been changed by the tenant, enforcing the breach is going to be difficult without proving some fairly significant loss to the landlord.

HMO’s

I am slightly annoyed because Bill Morgan and Simon Topple quite rightly got in first by asking about HMO’s. I was hoping to be the first one to point that out! This of course is totally different and I would submit makes it an actual offence for a tenant to change the locks (as opposed to above which is a breach of contract) although it would of course depend on the individual circumstances.

Article 14(2)(f) Regulatory Reform (Fire Safety) Order 2005 provides:-

emergency doors must not be so locked or fastened that they cannot be easily and immediately opened by any person who may require to use them in an emergency;

The order only applies to common parts of buildings (and parts of dwellings which lead onto common parts), so for this example let’s say we have a block of three flats with a common hallway. The landlord has put a keyless exit lock onto the main entrance to the flat which leads onto the means of escape (common hallway) which falls under the fire safety order. The tenant now changes the lock to a normal key operated mortice type. Artcile 32(10) provides (emphasis added):-

Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.

It is therefore respectfully submitted that it is perfectly possible dependant on the circumstances that a tenant may be guilty of breaching the fire safety order. (This is not an exaggerated case, it is based upon an actual case I had personally in one of our properties).

In addition to Article 32 providing “any person” may be guilty of an offence, Article 17 provides that there must be a system of maintenance and anything required under the order is “in efficient working order and in good repair.” Artcle 17(4) also requires “The occupier of the other premises must co-operate with the responsible person…” in this respect. If there is a term of the tenancy prohibiting changing the locks, it is respectfully submitted to then change the locks is not “co-operating with the responsible person”.

In respect of HMO’s for which the fire safety order does not apply (for example a house let to 3 unrelated persons on a joint and several tenancy), then, the Management of Houses in Multiple Occupation (England) Regulations 2006 apply (Similar provisions for Wales). In which case it is the duty of every occupier to:-

allow the manager, for any purpose connected with the carrying out of any duty imposed on him by these Regulations, at all reasonable times to enter any living accommodation or other place occupied by that person; [r.10(b)]

A failure by the tenant to allow entry is a criminal offence and the occupier would be subject to a fine of up to £5,000. [s.234 Housing Act 2004].

Of course throughout this article, if a tenant has changed the locks but freely allows the landlord entry without any fuss, non of the offences mentioned will necessarily apply (except perhaps the fire safety order).

Other miscellaneous

Breach of the term not to change locks

I don’t propose to go into the full law of valuing damages but as a general consideration, the following applies:-

Damages for breach of contract are calculated on the basis that the injured party should be put in the position in which he would have been if the contract had been performed. Accordingly, where the landlord suffers a loss which he would have suffered even if the contract had been performed, he cannot recover damages in respect of it. [C & P Haulage v Middleton [1983] 1 W.L.R. 1461].

In addition, damages must not be too remote. The rules of remoteness may be summarised by stating that damages are recoverable if (1) they may be fairly and reasonably considered as arising naturally, i.e. according to the usual course of things, as a result of the breach or (2) they may reasonably be supposed to have been in the contemplation of the parties when they made the contract as the probable result of a breach. [Hadley v Baxendale (1854) 9 Exch. 341] (So for example the tenancy may say what damages are payable if the tenant changes the locks i.e. to pay for replacement locks). [para 4.090 Woodfall Landlord and Tenant]

This therefore goes back to the problem discussed above. Although it may be a breach of the tenancy to change the locks, the question that then arises is what loss has the landlord suffered? If there is no loss, then it’s difficult to seek damages. However, that does not mean there was no breach of the tenancy. For a good example of this principle of a loss must be suffered in a surveyor negligence case see Community Gateway Association Ltd v Beha Williams Norman Ltd [2011] EWHC 2311 (TCC):-

The defendant should have been aware that the £16 million of further works had been promised and should have brought this to the attention of the claimant. In particular, the defendant should have checked the contents of the surveyors’ report against other records and, had they done so, it would have been clear that the report did not represent a complete list of works. This breach of duty had not, however, led to any loss for the claimant. The additional works which had been promised were not works which any individual tenant was entitled to insist upon but were more in the nature of a “wish-list” of works, an interpretation borne out by the fact that none of the tenants had complained that these works had not been carried out. [summary commentary, housing view 26 September 2011]

The OFT guidance on unfair terms allows the landlord to charge tenants for replacement locks or keys:-

We would also object to a term requiring payment of damages, to an amount equal to the full former rent, for the period that all the keys are not returned at the end of the tenancy. The costs of replacing the locks, where required, or obtaining replacement keys may be considerably less than the penalty charge demanded. [para 3.52]

Repairs

A tenant may disentitle himself from claiming damages for disrepair if he refuses to permit the landlord from carrying out repairs, for example by refusing to admit his builder [Granada Theatres v. Freehold Investment (Leytonstone) [1959] Ch. 592, CA; Shine v. English Churches Housing Group [2004] HLR 42, CA.]

In my judgment, accordingly, the defendants gave the plaintiffs sufficiently clear notice of their intention to do the work and sufficient information as to the nature of that work. What then in those circumstances is the result of their being prevented from doing it and of the plaintiffs repairing the slate roof themselves? On the assumption already referred to (viz. that the work which the defendants intended to do would have been a sufficient compliance with their covenant), the result in my judgment is that on this part of the case the plaintiffs could not succeed. In asking for an order on the defendants to repay them for the work which they themselves did, they are asking in substance for damages for breach by the defendants of their repairing covenant. If, however, the plaintiffs prevented the defendants from performing that covenant and then put it out of the defendants’ power to perform it by doing the work themselves, I cannot see how it can be said that the defendants were then or thereafter in breach at all… (Lord Justice Romer – The Granada Theatres).

If a tenant fails to report defects to his landlord, then even in a case where the landlord’s liability is not dependent on notice of a defect, the tenant’s damages may be reduced because of his failure to mitigate his loss. [Minchburn v. Peck (1988) 20 H.L.R. 392, CA.]. It is respectfully submitted the same principle applies should there be an emergency such as a burst pipe for which the landlord may be entitled to enter without notice but couldn’t because of the tenant’s breach of changing locks. It is certainly possible that any damage caused over and above the initial leak (for example) that was directly caused by the delay in gaining access which otherwise would have been prevented, the tenant may well owe the landlord such losses incurred.

Repairs not harassment

Harassment is a criminal offence under section 1(3) Protection from Eviction Act 1977. However, the offence does not extend to a failure to complete building works which had been innocently begun, in the belief that the tenant had consented to them, [R. v Ahmad (1986) 52 P. & C.R. 346] nor to acts intended to cause a residential occupier to vacate premises temporarily for the purposes of enabling work to be done, and resuming occupation thereafter [Schon v Camden London Borough (1987) 53 P. & C.R. 361]. [para 20.028 Woodfall Landlord and Tenant].

Getting into the property

As has already been suggested in the forum thread, until the keys have been returned a landlord should not assume the tenancy has ended without an order from the court and then the county court bailiff. For only then is the tenancy at an end [s.5(1A) Housing Act 1988]. When deciding whether a tenancy is at an end, the question is not whether the tenant is in occupation but whether the tenant intends to return within a reasonable period (known as animus revertendi) [Wigley v Leigh [1950] 2 K.B. 305; Beck v Scholz [1953] 1 Q.B. 570; Dixon v Tommis [1952] 1 All E.R. 725; Hallwood Estates v Flack (1950) 66 T.L.R. (Pt. 2) 368; Shooter v Gaitley (1936) 80 S.J. 74; Herbert v Byrne [1964] 1 W.L.R. 519; Brickfield Properties v Hughes (1988) 20 H.L.R. 108.]

An intention to return within 10 years has been held as a reasonable period! [Gofor Investments Ltd v Roberts (1975) 29 P. & C.R. 366] and mere absence in prison does not destroy a statutory tenancy [Maxted v McAll [1952] E.G.D. 171. Brown v Brash, [1948] 2 K.B. 247.]

However, assuming there is certainty that the tenancy of a house is terminated, and the tenant has gone away leaving the house locked, the landlord is entitled to break into the house in order to regain possession. [Hillary v Gay (1833) 6 Car. & P. 284] The fact that the tenant leaves furniture in the premises does not make the break-in unlawful [Turner v Meymott (1823) 1 Bing. 158].

The tenant “owns” the home for a specified period

I entirely accept the many comments in the thread that the tenant is in effect an “owner” of the dwelling throughout the period of the tenancy. This is a useful term to explain to novice landlords in a quick and easy sense the massive thing they are doing when letting property. However, those on the forum seem in my view more than novice landlords. The actual reality is that they are in essence owners of the property but importantly that ownership is “subject to conditions”. If any of those conditions are broken then the ownership maybe brought to an end even before the agreed period has elapsed (by way of an order from the court). Just because the tenant owns the property doesn’t mean they can treat the property as though they actually own it in all circumstances and it is for this reason that the terms of the tenancy are so very important.

“I just think too many landlords are lethargic about understanding the law and their obligations.

Did you know for instance, that it is illegal for the Landlord to hold a set of keys to the property? You can hold a set of keys if you get the tenant to sign an agreement to that effect and attach it to the tenancy agreement. That is the only legal way to hold keys.”

The post is here

It is because of this type of content that you often see on free public forums all over the internet nowadays that I have given over visiting them. They can contain good advice too but distinguishing between the two can often be difficult.

I am reminded with this case about the rumour that rent may not be deducted from a deposit which seemed to spread quickly soon after the new tenancy deposit legislation came into effect (which is of course totally untrue).

I went on to the forum and asked under what legislation a landlord may not hold keys and they have gone back to whoever told them this tale but as yet they’ve been too busy to reply. I thought therefore I would reply to the forum for the benefit of all because the landlord can indeed hold keys to the property perfectly lawfully [Aslan v Murphy (No 1 and 2) [1989] EWCA Civ 2]. [Emphasis added]:

…Provisions as to keys, if not a pretence, which they often are, do not have any magic in themselves. It is not a requirement of a tenancy that the occupier shall have exclusive possession of the keys to the property. What matters is what underlies the provisions as to keys.

Why does the owner want a key, want to prevent keys being issued to the friends of the occupier or want to prevent the lock being changed?
A landlord may well need a key in order that he may be able to enter quickly in the event of emergency – fire, burst pipes or whatever. He may need a key to enable him or those authorised by him to read meters or to do repairs which are his responsibility. …” [Lord Donaldson of Lymington Mr at Paras 14 & 15].

I could go one step further and suggest that a landlord should indeed hold a set of keys. We all know it is the landlord’s obligation to carry out repairs under section 11 Landlord and Tenant Act 1985. Any works that are required must be carried out “expeditiously” [O'Brien v Robinson [1973] A.C. 912]. The landlord may not contract out of his repairing obligations (so ask the tenant to organise repairs for example) [s.11(4) Landlord and Tenant Act 1985]. If therefore, the tenant is unable to allow the landlord into the property due to work commitments for example but does allow the landlord to enter, I fail to see how the landlord can carry out the works “expeditiously” if the landlord does not hold a key.

I should quickly add, if the tenancy contains a provision that the landlord is prohibited from retaining a key (which I have never seen but in theory possible) then of course to hold a key could be a breach of the tenancy. Although, I’m not entirely sure what loss the tenant would suffer as a result of this breach.

I hope this kills off the rumour in it’s tracks!

It’s not like us to be several days after an important decision relating to tenancy deposit schemes to publish an article but what with being away for a short break and then the twice as long catching up this has been slightly delayed for which I apologise.

This is a significant High Court (so binding) case which highlights what we have been banging on about for several years now namely, the importance of the prescribed information. As we often say, 90% of landlords are protecting deposits (not an official statistic, for illustration purposes only) and 89% are NOT giving the prescribed information either in full or properly.

Background

Mr and Mrs Nice (the landlords) granted an assured shorthold tenancy to Karin Suurpere (the tenant) on 6 January 2009 for a fixed term of 6 months. The rent being £300.00 per calendar month and a deposit of £500.00 was paid on commencement of the tenancy.

On 20 July 2009 the deposit was protected by the landlords using the free custodial scheme Deposit Protection Service (DPS).

On 10 August 2009 the tenant issued proceedings against the landlord which included a claim for three times compensation because although the landlord had protected the deposit, it was not done within 14 days and that no prescribed information had ever been provided. In addition, the tenant also pursued claims for wrongful eviction, on which point she failed, and for breach of the covenant of quiet enjoyment, which succeeded and for which she was awarded compensation of £1,000.00.

This appeal only related to the two deposit issues (failing to protect within 14 days and failure to provide prescribed information)

The DPS informed the tenant on 21 July 2009 that the deposit had been protected, provided the website address where the terms and conditions could be downloaded and provided the following information:

In a subsequent letter to the tenant, dated 8 September 2009, the DPS confirmed the date of 20 July as the date when the deposit had been submitted to them. In a deposit summary, dated 8 October 2009, the DPS set out the registration number, the name and contact details of the landlord, the address of the property and the amount of the deposit.

At the first hearing, Judge Reid dismissed the tenants claim, applying the decision in Draycott & Draycott v. Hannells Letting Limited (trading as Hannells Letting Agents) [2010] EWHC 217(QB) which at the time was the only authoritative case and finding that, since the deposit had in fact been lodged under the Deposit Protection Scheme on 20 July, before the commencement of her proceedings on 10 August, the penal sanctions in s. 214(4) did not apply.

The deposit was later returned to the tenant in full on 1 September 2009 when the tenant vacated (although see later as despite vacating, the tenancy had not ended at this time).

The Appeal

By the time of the hearing of the appeal made by the tenant against the refusal to order compensation of three times deposit, the decisions of Tiensia v. Vision Enterprises Limited (Trading as Universal Estates): Honeysuckle Properties v. Fletcher and Others [2010] EWCA Civ. 1224 and Potts v Densley and Pays [2011] EWHC 1144 (QB) had been handed down.

In relation to the protecting within 14 days issue because of the afore-mentioned cases in particular, Tiensia, that part of the appeal was unsuccessful. However in relation to the prescribed information …

The Prescribed Information order

The prescribed information requirements are contained in the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 and requires the following information to be provided:

Prescribed information relating to tenancy deposits

2.—(1) The following is prescribed information for the purposes of section 213(5) of the Housing Act 2004 (“the Act”)—

(a)the name, address, telephone number, e-mail address and any fax number of the scheme administrator of the authorised tenancy deposit scheme applying to the deposit;

(b)any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act;

(c)the procedures that apply under the scheme by which an amount in respect of a deposit may be paid or repaid to the tenant at the end of the shorthold tenancy (“the tenancy”);

(d)the procedures that apply under the scheme where either the landlord or the tenant is not contactable at the end of the tenancy;

(e)the procedures that apply under the scheme where the landlord and the tenant dispute the amount to be paid or repaid to the tenant in respect of the deposit;

(f)the facilities available under the scheme for enabling a dispute relating to the deposit to be resolved without recourse to litigation; and

(g)the following information in connection with the tenancy in respect of which the deposit has been paid—

(i)the amount of the deposit paid;

(ii)the address of the property to which the tenancy relates;

(iii)the name, address, telephone number, and any e-mail address or fax number of the landlord;

(iv)the name, address, telephone number, and any e-mail address or fax number of the tenant, including such details that should be used by the landlord or scheme administrator for the purpose of contacting the tenant at the end of the tenancy;

(v)the name, address, telephone number and any e-mail address or fax number of any relevant person;

(vi)the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy; and

(vii)confirmation (in the form of a certificate signed by the landlord) that—

(aa)the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and

(bb)he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief.

In this case the tenant accepted that the information in paragraph (a) was provided. However, it was submitted that the evidence did not demonstrate compliance with paragraph (b), and there was clearly no compliance with paragraphs (c) or (d). Further, whilst paragraphs (g) (i) to (iv) and, arguably, paragraphs (e) and (f) were complied with, there was no compliance with paragraph (g) (vi) or, importantly, with paragraph (g) (vii).

The landlord contended

• that they transferred the deposit on 20 July 2009;
• that they gave the tenant full details of registration of the deposit on 21 July, confirming the deposit reference number and providing details of the DPS website; and
• that they had complied with their duty to provide information as required by the Act and the 2007 Order.

Alternatively, if they are wrong about that and they did not comply, then they contended

• that they were not required to supply the tenant with the prescribed information after they had returned the deposit to her on 1 September.
• that a tenant who has had information provided about the deposit and has then had the deposit returned in full does not require protection. It would have been futile for them to have given particulars of the scheme to the tenant between 1 September 2009 and 1 June 2010, the date of the hearing of the tenant’s claim under s. 214, by which time the deposit was no longer in the scheme.

The decision of Mrs Justice Cox

Return of the deposit before the hearing:

The landlords’ dual obligations are continuing obligations once a deposit has been paid. The obligation to give the prescribed information therefore continues, irrespective of the return of the deposit before the date of the hearing

“… a party’s position as ‘the landlord’ or ‘the tenant’ for the purposes of these provisions crystallises when a deposit is paid in connection with shorthold tenancy. Thereafter, ‘the landlord’ (i.e. the person receiving the deposit paid in connection with a shorthold tenancy) continues to be ‘the landlord’ for the purposes of the statute whether the tenancy has been determined or not and remains under a continuing obligation to comply with the initial requirements of the scheme and to provide the prescribed information. Moreover, it remains the case that the landlord will still be subject to sanction if he has not complied with the initial requirements of the scheme or provided the prescribed information by the time of hearing of the section 214(4) application (following Tiensia) …” [para 53]

The information provided by the DPS:

Finally, I add the following observations, in the hope that they may be of some general assistance.