An enforcement notice is issued by a local authority where a development requiring planning permission has taken place without planning permission forst being obtained. An enforcement notice could seek that the development be restored to it’s previous state for example.

If I don’t have planning permission, what is the criteria for a local authority to serve an enforcement notice on me?

An enforcement notice may be served if “… it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.” [s.172(1)(b) TACPA 1990] Expedient is defined on the Harrogate Borough Council website as:

“Even when it is technically possible to take enforcement action, in law the Council is required to decide whether it is expedient.  This means that formal enforcement action is discretionary and all the relevant planning circumstances must first be considered.  Formal action will not be taken just because development has started without permission, or solely to regularise acceptable development or against trivial breaches of Planning Control which cause no harm to amenity.  The decisive question for the Council will be whether the breach of control unacceptably affects the quality of life or the public interest.”

What are the grounds of appeal to an enforcement notice?

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The Minister laid new regulations that could cut as many as 8,500 planning applications from the system, freeing up councils to focus on local priorities. Currently landlords have to submit a planning application to rent their properties to unrelated tenants – known as Houses in Multiple Occupation. Regulations published today will ensure councils only have to use this power where they know high concentrations of shared homes are a problem.

Too many shared homes in one area can cause problems. A high number of short term tenants with little stake in the community can leave an area with an unloved look and feel, which can sometimes create seasonal ghost towns that harm local economies, anti-social behaviour and an increase in crime.

But the Minister said that a blanket requirement to manage these through the planning system is a drain on council resources, and threatens to drive good landlords away from the rental sector because of increased costs and red tape, therefore restricting availability of affordable homes for rent.

Currently up to 8,500 planning applications may be added to the system each year if every landlord looking to turn their property into a shared home is forced to submit an application, regardless of local circumstances.

Housing Minister Grant Shapps said:

“Councils understand their local area best, and they don’t need burdensome rules that assume housing issues in every town, village and hamlet are exactly the same. I am also committed to safeguard the supply of rented housing – shared homes are vital for people who want to live and work in towns and cities, and are important to the economy.

“That’s why I’m giving councils greater flexibility to manage shared homes in their local area. Where there are local issues with shared homes, councils will have all the tools they need to deal with the problem – but they will avoid getting bogged down in pointless applications, and landlords won’t be put off renting shared homes where they are needed.”

Letting residential property is treated as a single business, even if you let out more than one property. If you let out several properties, you can offset losses from one against profits from another. You pay tax on any profit as part of your overall income.

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Expenses and Allowances on Income from Property

If you let out property you can deduct certain expenses and tax allowances from your rental income to work out your taxable profit (or loss). If you have several UK residential lettings you pool the income and expenses together. But you work out holiday letting and overseas letting profits separately.

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Even if in the absence of authority I might have come to a different decision, I do not particularly regret the result in the case of this tenant, who, as is the way with the modern tenant, has expressed his intention not to go out until he is ejected.

I am often told how modern tenants nowadays always wait for court orders and how things were different in the past. So, when was this transcript? …. 85 years ago in 1925! [SCRUTTON L.J: P Phipps & Co Ltd v Rogers [1925] 1 K.B. 14]

Things maybe don’t change as much as you might think!

I was mildly amused anyway.

Hi Adrian

When returning only a portion of a tenants deposit by chq in the post, if it was accompanied by a letter stating “please find enclosed the balance of your deposit as full and final settlement relating to the tenancy of xxxxxxx” and the ex-tenant then cashed/banked the chq would mean the ex-tenant could not change their mind or dispute the deducted amount.

I had heard using the phrase “full and final settlement” and the chq then being banked meant the person accepted it was final and there was no recourse.

Is there any legal merit in that and if so do you think the deposit schemes would accept it if there was a issue?

Many thanks

Answer:

There are two different situations covering this type of scenario and both have different results. Firstly, if there is no dispute in relation to the amount, then providing a cheque for a lower amount than the tenant is entitled to with a letter saying “full and final settlement” will not be binding (see below). However, if there is a dispute over the amount in question, the position will depend on the actions of the tenant on receipt of the money (see further below).

No dispute over the amount due

Take for example the position where there is a £600.00 deposit. There is no rent arrears or damage and therefore no dispute that the tenant is entitled to the full amount. However, despite this, the landlord sends a cheque for £400.00 with a letter saying “if you cash this cheque it will be deemed full and final settlement”. In this case, the tenant will not be deemed to have accepted the payment as full and final settlement because there was no consideration (or benefit to the tenant by doing so) and so not a binding contract.

payment of a lesser sum on the day in satisfaction of a greater, cannot be any satisfaction for the whole, because it appears to the Judges that by no possibility, a lesser sum can be a satisfaction to the plaintiff for a greater sum: but the gift of a horse, hawk, or robe, etc. in satisfaction is good… [as] more beneficial to the plaintiff than the money. [Pinnel's Case (1602) 5 Co. Rep. 117a].

This principle was applied in a modern dispute.  In D & C Builders Ltd v Rees [1965] 2 QB 617. The small firm had done some work for Mr. Rees but weren’t paid the £482. After a few months of being asked for the money, Mrs. Rees, acting on behalf of Mr. Rees, offered to pay them £300. She knew that they needed the money desperately but told them that it was the £300 or nothing. D & C successfully sued for the balance because she had not provided sufficient consideration.

Where the amount is in dispute

Now take an example of a £600.00 deposit paid by the tenant and at the end of the tenancy, the landlord alleges damage to the sum of £150.00. The tenant though disputes the £150.00 damage. The landlord sends a cheque for £400.00 as “full and final settlement”. Now what is the position?

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Dear Adrian,

I have a tenants in a 3 bedroom semi detached house and they have asked me to deal with a wasp nest in the shed.

Am I responsible or are the tenants?

Many thanks,

Answer:

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Since the introduction of tenancy deposit schemes, this can cause a surprising problem. It is well accepted that where a landlord claims that a payment of money was for rent in advance and not a deposit, this is deemed as a deposit for the purposes of the tenancy deposit legislation [Piggott v Slaven, Great Grimsby County Court 23 February 2009]

However, because of this and if a landlord takes six months rent in advance on a monthly tenancy, the landlord could be regarded as having taken five months worth of deposit which requires protecting. The penalty could be very serious if it were deemed a deposit.

There is a way to genuinely make the six months rent in advance rent lawfully due under the tenancy agreement by modifying the wording of an assured shorthold tenancy. The below pages are modified front pages of our tenancy agreements for the DPS and MyDeposit schemes. I haven’t yet produced one for the no deposit tenancy agreement but if anyone needs one I can quickly do this and add it to this page.

You should ensure that you follow the guidance shown on page 1 of the below documents. There is also a completed sample on page 3.

Download DPS replacement front page where multiple rent paid in advance

Download MyDeposits replacement front page where multiple rent paid in advance

The changes all relate to the recent budget announcements namely the 30% reduction in LHA rates, the removal of five bedroomed properties and the capping of benefits.

There is no mention of the promise by Grant Shapps before the election to re-instate direct payments to landlords, so the consultation procedure might be a good time to bring this up (again), in particular as they have provided draft regulations.

Any views must arrive no later than 10 September 2010.

Full details are available here.

It is to be held on 3 November 2010 at YMCA Newport, Mendalgief Road, Newport, Gwent, NP20 2HF and will commence at 9.15am.

We are particularly interested in this course because we will be lecturing.

There is no requirement for an attendee to be accredited but a discount is available if you are.

Course Content: The whole truth about Housing Benefit – and what’s in it for you.

• Understand the system and know your rights
• How to accelerate the claims process
• How to get the maximum benefit payment levels
• When and how to achieve direct payments
• How to avoid claw back of overpayments
• Your responsibilities for notifying changes and fraud
• Your rights to appeal
• Delegates have reported saving thousands of pounds having attended this course!

Full details and costs can be found here

The liability to pay council tax is determined by the hirechay of liabilty as contained in s.6 Local Government Finance Act 1992. Basically you start at the top of a list of liable persons starting with owner-occupiers and work downwards until the appropriate person is found and that becomes the liable person.

However, under the Council Tax (Liability for Owners) Regulations 1992, an owner will always be liable if the dwelling is an HMO. The definition of an HMO for council tax purposes is totally different to that contained in the Housing Act 2004. For council tax purposes an HMO is defined as:

a dwelling which

(a) was originally constructed or subsequently adapted for occupation by persons who do not constitute a single household; or

(b) is inhabited by a person who, or by two or more persons each of whom either—

(i) is a tenant of, or has a licence to occupy, part only of the dwelling; or

(ii) has a licence to occupy, but is not liable (whether alone or jointly with other persons) to pay rent or a licence fee in respect of, the dwelling as a whole.

[r.2]

The landlord owned a house which she let on a series of assured shorthold tenancies between 1999 and 2007. In 1999, the tenancy was granted to four tenants on a joint and several basis. When one tenant vacated, the dwelling was let to the remaining three tenants, again on a joint and several basis.

When the tenants originally moved in, in 1999, they agreed with the landlord that because they did not require the use of the furniture supplied, it would be stored in the conservatory at the rear. They also agreed that they did not require use of the conservatory.

Despite the tenancy(ies) having one rent shown for the whole house, the tenants paid the landlord their share of the rent individually, which continued until 2008 when the tenants vacated.

The local authority had billed the tenants for council tax from 1999 until they vacated but then subsequently decided the property was an HMO and therefore billed the landlord the sum of around £11,000. The landlord appealed to the valuation tribunal. The tribunal agreed with the local authority that the property was an HMO because (a) the tenants each paid there share of the rent and (b) the tenants only rented part of the dwelling because of the lack of access to the conservatory.

The landlord succesfully appealed to the High Court.

Although the tenants had each paid a “share” of the rent, this had been an arrangement of convenience commonly found in shared properties. Under the terms of the tenancy agreement, they were jointly and severable liable for the rent. The fact that they had paid separately did not change their legal liability. Nor was the tenancy only of part of the house. The tenants were clearly entitled to use both the furniture and the conservatory, even if they had chosen not to do so. Accordingly, they were not excluded from any part of the property but had merely voluntarily decided not to use one part of it.