Landlords face possibility that they may not be able to evict tenants under Human Rights Law!

Landlords face possibility that they may not be able to evict tenants under Human Rights Law!

15:31 PM, 11th April 2012, About 10 years ago 56

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I have just read a thread on Property Tribes that says Hounslow Council have been prevented so far from evicting a tenant because she is claiming that they are contravening her human rights under Article 8 of Human Rights Act 1998.

This is what Article 8 says –

Article 8 Right to respect for private and family life

  • Everyone has the right to respect for his private and family life, his home and his correspondence..
  • There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

I can easily see why local authorities are vulnerable to The Act but not how it might relate to a private landlord. The Human Rights Act 1998 does not apply to private individuals, or am I missing something? Particularly since a large landlords organisation are expressing concern?

Something does occur to me though, if this tenant wins using the Act against the local authority where does this leave all local authorities? I’ll bet Ben Reeve-Lewis has something to say about that? Will they need to transfer the ownership of all their stock to private individuals or companies? Is there a business opportunity here for the PRS?

Or will the Secretary of State exercise this power under Section 14.

…does not prevent the Secretary of State from exercising his power under subsection (1) F5…to make a fresh designation order in respect of the Article concerned.



Comments

by Ben Reeve-Lewis

16:31 PM, 14th April 2012, About 10 years ago

Just got back from Ikea hell.........
 
Unlike Mary I am not so humble. Yes I am an expert haha Housing law stuff is all I do, have done since 1987. Sadly not an expert in ECHR though. Few are expert to be honest and in real terms it is such early days for ECHR and housing that lots of it is conjecture and putting 2 and 2 together making 5.
 
Its when cases go through court of appeal and house of lords level that it starts to become clearer and proper case laws are established that people can point to and rely on. This is why I am urging calm on the article 8 defence to PRS possession claims. I keep saying in my responses here, “In theory”, nobody knows what will happen on the long tortuous passage of cases through the higher courts. They take forever and even in high cases where 3 law lords preside it is common for not all of them to agree with each other. Rarely have I seen all 3 vote the same way.
 
As for the letting agentrs working for cuoncils. My instant reponse was no but again things are often more complex.
 
We would need to know a lot more about the contractual arrangements between the council and the agents, who is given as the landlords and who owned the housing stock concerned but it isn’t unfeasible that if instructions came from the council to evict and the agents were simply the administrators of the process then there is a possibility of an Article 8 defence, but I am just musing. I don’t want to add 2 and 2 together etc.
 
I have myself blocked possession in court a few times where an agent, on the landlords instructions, issued possession proceedings and made applications to court on the basis that each court form contains a statement of truth which needs to be signed and the court rules do not allow a managing agent to sign a statement of truth so the paperwork was invalid. Not an ECHR defence but gives you an idwa of the complexities of the role of agents.
 
And no, I did mean Ground 8 not article 8. The scenario I was suggesting was where there is mandatory possession because of 2 month’s rent arrears, which is Ground 8

by Mary Latham

17:28 PM, 14th April 2012, About 10 years ago

Ben you are the expert on Housing law but surely the Agent has no legal status regardless of his contractural agreement with the local authority he is only acting on behalf of his client - the landlord?

In the circumstances of a Section 8 the property would not be the "home" of the landlord but it would be the "home" of the tenant so I am not clear how Artcle 1 would help the landlord - unless of course the landlord was being repossesed of his own home because the loss of rent meant that he could not pay his mortage. If the property were rented to a tenant that tenant would surly be the one who "possessed" it - the case would be in court because the landlord was seeking to repossess and unless and until the court gave him the legal right to do that it would be deemed to be in the legal "possession" of the tenant?

My brain is hurting now perhaps you could clarify for me Ben.

by Ben Reeve-Lewis

17:49 PM, 14th April 2012, About 10 years ago

I think the sign of an expert is someone who knows enough to know they don’t know it all by any means. I am certainly aware of the yawning gaps in my knowledge and ECHR defneces to possession proceedings is certainly an area. I can grasp the arguments but cant predict where they will go in court of appeal.
 
Agents can and do have legal status depending on how things were set up, for instance, and this is a common example, if the agent puts themselves down on a tenancy agreement as the landlord it is the agent who is liable to be sued for disrepair if jobs aren’t done, not the property owner.
 
I think your point is the same as mine on this though. If the council are merely using the agents to administrate processes and the tenants are actually signed up to the council, Article 8 may well come into play but against the council not the agent. If the council just farms people out for rehousing and the agent finds a property, sets up an agreement with a local PRS landlord then no, I cant see how they would be in the frame.
 
My brain hurts too. We had friends over last night and we polished off a European wine lake between us and went to bed at 2.30am.
 
Article 1 refers to a person’s possessions, of which the building is considered, even though the Law of Property Act 1925 states that for the period of the lease the tenant is in effect the owner of the property. So, as was the case in Gillow, the judge, when considering proportionality took into account Article 1 when considering the landlord’s position. In refusing to grant possession to the landlord was the law interfering with his possessions? Namely, his house.
 
As far as I recall in Gillow it wasn’t just a  buy to let but previously the family home and the judge considered their connection to that when making a decision.
 
And if your brain still hurts ask me to explain Malcolm v. Lewisham, a defence to possession based on disability Discrimination that has turned employment law on its head. Its enough to make you take up self harming. I’ve been teaching it for 4 years and I still don’t quite get it

by Mary Latham

18:09 PM, 14th April 2012, About 10 years ago

Ben surely an Agent who signs and AST is in the same  position as an Agent who signs a notice to quit?  He cannot do this because of the Legal Services Act 2007.  Only a legal representative or a person with enduring power of attorny has the right to sign a legal contract on behalf of another person?

Have I got this wrong? Have Agents been held legally accountable for something they have done while acting on behalf of their landlord?

by Mark Reynolds

19:59 PM, 14th April 2012, About 10 years ago

Mary you do not have it wrong, however the relationship between the agent and the landlord is commonly refered to as a "fiduciary relationship" - in other words one of a trust between the agent and the principle - (The landlord)

What should be borne in mind, is that the landlords name and his existence should be declared otherwise the agent may, or more likely,  become the principle and will be liable for any issues or problems that arise in the tenancy.

Some may argue that by using this relationship they are able to serve notices and represent the landlord in posession proceedings. I agree with you and Ben that this is simply not possible and that will only serve to push that "Fiducial Relationship" to the limit, and one a court may not tolerate. In our TOB the landlord is signing to say that we will set the agreement up but nowhere does it say that we will serve the notices and represent them in posession proceedings. But that is a subject for another day.

As far as i am aware, this has not been challenged but as a side note we always sign "for and on behalf of...priciples name"

Does anyone else have any thoughts on this?

by Ben Reeve-Lewis

7:57 AM, 15th April 2012, About 10 years ago

I’m not saying they legally can Mary, I’m saying they do, it’s my job to try and keep on top of them.
 
Bear in mind I work in an area of London that is very run down, lots of unemployment, drugs and crime and we have so many criminal agents you wouldn’t believe. I don’t mean unknowledgeable and I don’t mean incompetent, I mean Criminal. The name of the game is; make as much money as you can and screw the rules….whatever they are.
 
I left the job in 2001 to become a self-employed housing law trainer which I did until 2009 when I ended up back in the old job. The difference in the intervening years was the massive growth in clueless, amateur buy to let landlords creating all sorts of mayhem out of ignorance and a concomitant growth in very dodgy agents who saw a gap in a completely unregulated market.
 
They all have well decorated high street offices and many boards up all over the borough. To the unknowing eye they look totally legit but remember I work with Environmental Health and Trading Standards and we know what they are really up to behind those shop fronts. The phantom companies they are partnered up with, the dissolved status of the actual agent company, their personal criminal records, the constant pending prosecutions being pursued by Planning, building control, trading standards, the allegations of theft, illegal eviction and on and on and on.
 
My experiences with these charlatans drives my repeated calls for agents to be properly regulated.

by Mary Latham

9:15 AM, 15th April 2012, About 10 years ago

There are two issues here for landlords.
1. Will they be held responsible if the Agent, acting on their behalf and with the "fiduciary relationship" that Mark describes, breaks the law. We already know that the landlord will repay the deposit if the Agent walks away with it even through the landlord has not even seen the money - does this follow through to all aspects of the law?  I have always thought that it did and if this is the case Agent can do whatever they please because the buck stops with the landlord.
2. Are Agents breaking the law by performing certain functions in relation to legally binding documents, are they breaking Legal Services Act 2007?  Again I believe that they are and there is no doubt in my mind that if they actually go to court on behalf of the landlord they are performing a legal service which they are not licenced to do.

Like you Ben I do come across Agents who have contempt for the law, the landlord and the tenant but they are not prolific in my area.  I find that there are some who use the fact that their landlords do not understand English well nor do they understand the relationship between themselves and the Agent. As my beloved late mother used to say "money doesn't care who owns it"  Often those who have the money to invest in property do not have the knowledge and skills to let it, they also dont have the sense to go to a legally qulaified and licenced person to pay cove their backs.  In that environment yes Agents do need to be regulated.  Unfortunatly that means that the good guys, and there are many, will be faced with increased cost and legal burden just as good landlords are because of the rogues.

I am going to keep educating landlords and Agents in the hope that the rogues will be marginalised and that landlords know what to expect when they engage an Agent to work on their behalf.

by Mark Reynolds

9:45 AM, 15th April 2012, About 10 years ago

 As always Mary a concise answer and one that may throw up some anomalies (I think I spelt that right)

There is always a danger that the agent can run away with all the cash and we all know that this does happen. The relationship between the landlord and the agent is one of trust and, whilst regulation is needed who will police it?

I am going off the thread a little here as the original article surrounded Article 8 so I will finish by saying this.

I firmly believe we are the good guys in the letting agent world. We tell the landlord what their obligations are and we do, on occasions, badger them to get things done and they eventually do.

Maybe someone can write an article about this subject we are straying into?

by Ben Reeve-Lewis

10:16 AM, 15th April 2012, About 10 years ago

Yes thats my understanding too Mary. They were breaking the civil Procedure rules in drafting and serving papers and more latterly (October?) breaking the Legal Services Act.

I see attampts where the landlord actualy lives abroad and instructs the agents to do it all for them.

Online eviction firms seem to be becoming more and more popular with agents these days but even their standards are questionable. I recently saw a section 8 notice drafted by one of the more well known companies and it had entirely the wrong eviction ground on it, it wasnt what they call sufficently particularised (not enough detail of the breach) and the charged the landlord several hundred pounds for it

by Mary Latham

11:03 AM, 15th April 2012, About 10 years ago

Ben You have raised another important issue for landlords and agents.  Are online eviction services breaking the law?  Are they performing legal services and if so are they licensed (just realised I was using the American spelling) to do so? If a judge picks up on the fact that the paperwork has been drafted by people who are not licensed to perform legal services would/could he throw the case out?  He could not be seen to be aiding and abetting could he?

This is one of those days when being a landlord feels like swimming in a toilet pan


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