11:38 AM, 30th April 2012, About 10 years ago
I recently had a long online discussion with Mary Latham, in which we both tried to get to the bottom of the legal stuff around whether or not a managing agent is allowed to sign a Section 21 notice.
We didn’t end up with a definitive conclusion. I will write a separate piece on my thoughts on the legal stuff in a while but I wanted to write about something that came up as an adjunct to what we were talking about. Whether people in my line of work, who defend possession actions brought by landlords, will always try to buy time for the tenant in the face of all reasonableness.
Half the time, when a landlord seeks possession against their tenant they will, as is their legal right, seek further advice on their position. They can go to solicitors about this but usually only in small numbers because of the expense, the vagaries of legal aid, and the lack of housing law specialist firms in any given high street.
Far more common is the approach to either the CAB, which is most people’s first port of call by sheer dint of the fact that everyone has heard of them, council housing advice teams of varying stripes, of which I am one, and national advice agencies like Shelter.
We are paid to advise on the legalities of matters as they relate to the rental sector. Sometimes we give bad news to the tenant and sometimes it is bad news for the landlord. We can only work with the laws that have been passed by parliament.
And yet so often the response of a landlord to bad news is to accuse housing advisers of being wholly unreasonable and biased towards tenants.
In many situations people in my line of work often sympathise with landlords who have bad or even nightmare tenants. I am on first name terms with many decent and tearful landlords whose tenants are blatantly ripping them off and who are under threat of losing their life savings in a buy to let investment that the tenant isn’t paying the rent on. I feel for them, I really do but if their paperwork for possession isn’t in order I can’t pretend that it is and have to advise both parties accordingly.
It would be immoral of me, or any adviser or solicitor to ignore bad drafting of legal documents until the landlord gets to court and then simply slap in a last minute case dismissal application on the technical defence of defective paperwork. I have to advise the landlord that they need to re-draft and re-serve if they are to have a chance of getting their property back.
When I flag this up the same tired old arguments of bias and the law being all in the tenant’s favour get thrown back at me. The law is what it is people. I can understand that you aren’t happy with it but that doesn’t mean that advice workers are at fault or even biased towards tenants.
Being brutally frank, if landlords want to avoid being blocked by the law, first find out what it is. Educate yourselves so you actually know what you are doing. I am more than happy to help with that and see this as the main part of my role, rather than simply legal enforcement tasks.
Now, do people in my position deliberately try to block possession proceedings just on principle?
No is the short answer, for the same reasons outlined above. I’ll let you into a secret though, we used to.
I started in this line of work in 1990, February 2nd to be precise. Back in those days TRO’s like me saw their role differently, we only helped tenants. If a landlord cocked up possession action that was their affair and they should get their own lawyer. To advise them impartially was seen as a conflict of interest. How could we advise our tenant on their rights and at the same time advise a landlord how to get rid of our client more efficiently?
We would spot defective notices surely enough but then just wait until things got to court, bring it to the judge’s attention at the 11th hour and get the case thrown out. Snakes and ladders, all the way back to square-one for the landlord.
However in 1999 Lord Woolf carried out an investigation into the ways that courts and lawyers worked and introduced massive changes that both streamlined procedures and stopped these daft games that all lawyers and legal reps played on both sides (because landlord’s representatives used these kinds of tricks too). They were called the ‘Woolf Reforms’.
For county courts, out went the wigs and gowns and the ability for anyone to sit at the back of the court listening to everyone’s personal predicaments and in came notions of access to justice and impartial advice, an end to last minute surprise defences. After Woolf people in my position can expect to be bollocked by judges for using silence as a tactic and we could even find ourselves liable for some of the court costs if we don’t bring defective notices to a landlord’s attention and leave it to the court hearing to do so.
That’s when things started to change for people in my kinds of jobs, and for the better I have to say. As much as it was black-humoured fun for us pre-Woolf I admit it really wasn’t on.
Now we have to be involved in impartial advice from the start. We have to let landlords know when they are legally off track. When we do so we’re accused of being difficult and biased for just telling people what the law says. I suppose it’s a step up from being accused of being a Bushwhacker, which is what we were in the old days but it’s still wide of the mark.
You all know what the legal eviction procedure is, or at least have an overview of it. It’s lengthy, it’s complex and fraught with potholes but advisers didn’t invent it. If we didn’t tell you that your paperwork was not sufficient enough to gain the possession order that you seek, we wouldn’t be doing what we are paid for, we would be morally and legally remiss and you would spend money and time needlessly. Believe it or not we are doing you a favour, and unlike a solicitor, we are doing it for free. We aren’t merely blocking you to be difficult.
Landlords have to take some responsibility in this. It is your income and you really should educate yourself enough to know what is required in your industry, or at the very least pay someone who does have that knowledge (Licensed agents anyone?). In the past few months I have had several landlords in who have been seeking my assistance and I have given them legal hand-outs that I have written myself. I’ve given them my mobile number, signposted them to websites that can help them without having to employ expensive solicitors or online evictions services and they have come back in to ask me to examine their paperwork , which I am more than happy to do, only to find they have downloaded Section 33 notices from a website specialising in Scottish ASTs. How far do I have to go? Hold their hands on the keyboard?
When I point out the mistake I get abuse and, more tediously, accused of being on the tenant’s side.
Education, Education, Education….and while you are at it, don’t shoot the messenger!
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