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13:41 PM, 7th December 2016, About 7 years ago 44
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MR WHIP OFF by Disgruntled Landlord
Councils flaunting and breaking Statutory Laws collecting council tax
I have copied my letter I am sending to Norwich City council regarding the way they view the landlord’s liability. The letter is un-edited so it shows more than you need, the bit you can skip to is the last part on the 2nd page, you should get the gist. You might see there’s a touch of light humour in the earlier parts.
Whatever the legal boffins amounts us might say, don’t be put off by using some of the words as a challenge you never know, it might help you achieve a small victory with similar claims, from my past experience with Norwich I won’t hold my breath. I expect to pay the bill even though I believe it is wrong. Currently it’s not worth going to an unnecessary cost to challenge this. I have been to court many times for other issues, one thing I have learnt is to not take anything for granted, in my opinion it is far less of a risk challenging a small amount, as it helps to keep things in prospective and out of court or there is likely to be far less costs to pay if you do go to court and lose.
I take them up on two issues.
Firstly:- non occupation and liability.
Secondly:-Discounting one person then passing the charge to another.
The problems are many, the crouch of the matter is, the rules of hierarchy that governs who is liable for the council tax, it basically goes to the tenant in occupation, if they are not in occupation the liability falls to the owner. I make the stand that the tenant whether they occupy or not are legal owners and have legal control for the property until such point the tenancy has officially ended by both parties.
Norwich city council told me they class a tenant in a fixed period liable if they did not occupy the property but not tenants in a periodic tenancy liable instead making the landlord liable. they say their solicitors say the statutory laws I quote are just guides! Ha.
I would like to hear how Tessa and other legal boffins view the points I make, and the whether they are of the same opinion in regards to councils solicitor about them not needing to comply to statutory law’s.
Norwich City Council
City hall
Norwich
NR2 1NH
Complaints and Head of Council Tax
Ref: Mr WHIP OFF
5.12.16
Council Tax Bill raised and closed Date of issue 24.11.16 Property ref: 37610000400006
Your actions are out of order, despite the bill you have raised.
As well as other legal rights, a tenant by law holds legal rights of ownership to the property of their contract, rights which are above the landlords, Laws prevent any landlord from attempting to take back ownership or control of a property while a tenancy is in force.
Until any tenancy has been formally mutually surrendered, or ended by the terms of the agreement be they fixed or periodic, or by legal eviction of the tenant or any other persons in the property, control and ownership does not revert back to the landlord.
The control of the property still remains with the tenants, even if they have moved out it does not change the position of the law. Returning the keys to a landlord still does not end a tenant’s legal rights or obligations of contract until the landlord agrees or conditions are met. Until such a point that the tenancy has clearly mutually ended tenants are legally responsible for the council tax.
On this occasion the leaving tenants last day of contract ended on the 4th September, the new tenants contract overlapped the same day commencing on the 4th September. The property was furnished at the time.
You have raised a bill to me to cover the 3rd. the tenant leaving still had a tenancy in force up to and including the 4th. The new tenancy commenced on the 4th there was a continuation of “tenants owners” at no point did I regain my status as owner.
Even with the information you show on your bill, you state that the last day of the leaving tenant ended on and included the 3rd and the new tenant commenced, on and included the 4th . So you know there was no day in-between tenancies, yet you saw fit to bill me in full knowledge that I was not liable and in full knowledge of what parties were liable. Your adoption of the application of billing is not only wrong, your actions are illegal.
In previous correspondence with the council you have said you choose not to apply a charge to the person liable for the last day, That’s nice of you. It does not does not give you any right to make that charge to anyone else.
This is like an ice-cream man I will call him Mr WHIP OFF, he lets the last customer of the day have an ice-cream for free, hurray lovely ice-cream man. Bear with me!
The next day Mr WHIP OFF opens up for business, scribbles out a bill for the ice-cream he gave away the day before, then gives it the first person that walks close enough for him to give it to. What’s this for? Say the passer-by, it’s for the ice-cream I gave away yesterday, say Mr WHIP OFF, “F-OFF”! rightly say the passer-by, No “WHIPP OFF” say MR WHIP OFF, now pay up or I’ll take you to court.
1 of 2
This bill has been issued falsely I do not have any liability to council tax on this occasion. If you had followed the ACTs of Parliament statutory laws of procedure as set out, you would have found this out.
I have made you aware that the actions of your billing is contrary to the STATUTORY INSTRUMENTS The Council Tax (Administration and Enforcement) Regulations 1992 1992 No. 613 PART II Regulation.
Because you ignore your duty to ensure the bills are made out to the correct people, and more to the point you are creating and sending bills to people knowing they are NOT liable, you are in breach of fraud and other serious laws too.
I have written to you several times now, your continued ignorance to comply is wearing very thin, while the bills I have received from you are, as in the case here, are often valued little to nothing, this is not really the issue. It is the fact that you raise any bill, or implied false liability before you have gone through the proper procedures, make you guilty of maladministration, you knowingly generate bills to people without knowing that they are liable. Worst still is that you know they are NOT liable. THIS IS MISUSE OF YOUR OFFICE.
Your actions of billing are without due process of proper enquiry your actions are reckless and time wasting, I have kept records to show my dealings with Norwich City Council and this very matter goes back decades, you cannot claim to be unaware of the duty to follow the laws that have been put in place by parliament, for you to follow to ensure bills are not falsely addressed.
If you come back insisting I am liable; I will pay it, only because of the hassle it will cause me to fight this, but take heed, this will not always be the case. Your actions will be recorded, if the LGO get involved evidence of a much wider maladministration and potentially evidence of breach of serious law such as fraud will involve all the staff who have knowingly been part of the process of actioning bill’s to people that they knew could not be liable.
This Mr WHIP OFF rubbish that you discount a person then charge another person who you clearly know is not liable, is absolutely wrong this needs to be addressed forthwith.
For your future records
• A Tenant is by law is the “Owner” whilst their tenancy is if force, whether they choose to occupy the property or not, the tenant has control of the property whilst their tenancy exists. Any tenants’ legal status as an owner with control supersedes their landlord’s liability of council tax.
• My new AST’s. are written to commence at; and end at; 11am on a Sunday at the beginning and end of each tenancy term. Each tenants are legally the owners up to and from those times. Under Council tax law I do not fall liable for council tax in such cases.
• A council is at liberty to discount a person for the last day of their council tax liability, a council acts illegally if it then makes a charge to another person for the same day, fully aware there could be No liability.
• No landlord has control of a property while an AST tenancy is in existence, be it fixed or periodic, no council has any legal right to claim otherwise.
• Just because a tenant moves out, does not end a tenants ownership or control over the property.
• Any landlord that attempts to take back ownership or control of the property without the tenant’s consent or legal judgement, faces serious criminal charges of illegal eviction and harassment, laws governing this are well established, you should already know this.
Chris
Previous Article
How to interpret one clear calendar month's notice?
Michael Barnes
0:06 AM, 14th December 2016, About 7 years ago
Reply to the comment left by "Chris Baker" at "13/12/2016 - 14:20":
We did not claim that CoA reversed the High Court decision; indeed my post earlier states that it confirmed it, but disagreed with some reasoning.
The CoA confirmed that for a tenancy with a fixed term of at least 6 months
- tenant is responsible to council during fixed term and any CONTRACTUAL periodic tenancy following the fixed term, and
- landlord is responsible during a Statutory Periodic tenancy
if the tenant vacates before the tenancy ends.
The CoA judgement is at http://www.bailii.org/ew/cases/EWCA/Civ/2016/1213.html.
All of the tenancies in the case had a contractual periodic term.
You appear to be confusing Statutory Periodic and Contractual Periodic tenancies, and as such it is you that is spreading misinformation.
Paul Baldry
6:26 AM, 14th December 2016, About 7 years ago
For what it is worth (and a real world example)
My office appealed a council tax bill as the tenant left inside a periodic/contractual month. We said they were bound the day prior their rent day (their notice period)
The council came back with a long letter about legal precedence and ask for proof that our original tenancy give an initial fixed period and stated that it would give rise to further term on a monthly basis.
As long as we could prove that then our appeal would be successful. We scanned our tenancy and not heard anything back.
Norfolkngood
7:13 AM, 14th December 2016, About 7 years ago
Reply to the comment left by "Michael Barnes" at "14/12/2016 - 00:06":
Dear Michael.
You have no grounds to claim I am confusing statutory periodic with contractual periodic. I have made references only to fixed or periodic. Please behave yourself.
Thank you for supplying the link direct to the appeal decisions. This is actually what helps stop Chinese Whippers Everyone here now have the opportunity to read for themselves both the high court ruling and the appeal ruling.
Sight of the appeal only emphasize the last point I made regarding yourself and the CouncilTaxGuy. I don’t see anything in either Judge Edis Ruling or the continued ruling by the three appeal judges, to credit your claims.
I have made some short notes under, I urge all those who are interested to take a look, and read the full version, bear in mind lots of the wording is written not as the judge’s ruling but as situations of other cases referred to, or other claims such as from the councils’ QC.
http://www.bailii.org/ew/cases/EWCA/Civ/2016/1213.html
Lord Justice McCombe, points 1-35
5. the very last line he states the cruial question is whether the tenant in these cases had “material interest”
8. Lord Justice McCombe states the basis of the claims of Leeds City council. NOTE These are identical to the chart diagram shown by the CouncilTaxGuy who misleadingly shows them as being that of the findings of this appeal judgment.
19. Lord Justice McCombe confirms a term of six months or more constituting a "material interest" he confirms the tribunal and judge Edis were correct in finding that the tenant's liability continued while those tenancies subsisted as periodic tenancies and even if the tenant had gone out of occupation.”
“19. Thus, it seems to me that, on their natural construction, the agreements in these cases were of the character described in the passage from Woodfall already quoted. The terms granted by the agreements here were in terms a single grant for 6 or 12 months certain (as the case may be) and then continuing from month to month. Clearly, they grant "a term of six months or more", constituting a "material interest" within the meaning of s.6(6) of the 1992 Act. It is pursuant to that grant that the tenant holds throughout the tenancy, whether during the fixed term or thereafter, Accordingly, in my judgment, the Tribunal and the judge were correct in finding that the tenant's liability continued while those tenancies subsisted as periodic tenancies and even if the tenant had gone out of occupation.”
35. Lord Justice McCombe confirmed the appeal should be dismissed
36. Lord Justice Underhill, mentioned the superstrike being different. Agreed with Lord Justice McCombe
37. Sir Stanley Burnton both the others.
CouncilTaxGuy, 19. this is so clearly written, “tenant's liability continued while those tenancies subsisted as periodic tenancies and even if the tenant had gone out of occupation” It is fantastic news for landlords who suffer from councils bullish methods all over the country. Why are you stating on your chart that if a tenant is not in occupation during a periodic then it is the Landlord who is liable?
You are wrong,
Worst still you are spreading this via Property118 and others sites,
Councils (and many landlords) will pick-up on this as being correct, this will undoubtable cause problems and or costs for Landlords, you need to correct the information immediately.
Councils have acted well above their powers of office with little to no care that they are breaking statutory laws, they have tried to bill me for thousand, it took precious time and effort to fight them.
As far as the council’s tax claims of liability, we all owe our gratitude of thanks to Mr Broadley, his stand will save us time and expense.
What I suggest we do now, is pool our efforts to focus on the chosen relevant points and put together a well written template to send to all councils, to stop them from automatically billing landlords, I suggest the letter also demands for the council to disclose all payments known bills claimed from us when the tenancy was in existence and repay any money they have already taken when the tenant was liable.
Michael Barnes; I hope you are with me on this, the note you referred to where Lord Justice McCombe did not agree with Judge Edis was on his description of his reference to tenant’s terms being a “modern Contrivance’. This did not have any effect on the council tax liability issue, as seen in Lord Justice McCombe point number 33.
Down but Not Out
Chris Baker
MoodyMolls
9:04 AM, 14th December 2016, About 7 years ago
So this is a page from my tenancy agreement. Please can someone tell me if its ok or I need to take out the word statutory
Page 2
This Tenancy Agreement is made the day of Year
Between Joe Bloggs ( Hereinafter called the Landlord)
Fairy land st Mobile xxxxxxxxxxxxxxxx
Pursuant to Section 48(1) of the Landlord and Tenant Act 1987 your Landlords address for serve of notices ( Including notices in proceedings ) is as above
And (Hereinafter called the tenant)
The Landlord shall let and the tenant shall take the property situated at and known as
(Hereinafter called the Property)
Term ( Fixed 6 months ) from
Rent clear of all deductions for every month of the term for the duration of the said term.
If the tenant remains lawfully in possession after the initial tenancy period and no new tenancy comes into being, the tenant becomes entitled to a statutory periodic tenancy where all terms and conditions within this agreement continue with the same notice period being required .
List of all occupiers who will be living at the property
Names Age
The total number of people allowed to occupy
The right to rent checks regulations
• I have to retain copies of all requested information under the right to rent checks
• It might be necessary to pass it over to the Home Office in certain circumstances.
Michael Barnes
12:58 PM, 14th December 2016, About 7 years ago
Reply to the comment left by "Clint " at "11/12/2016 - 20:22":
Regarding the proposed termination clause, I would be inclined to go for
The Tenant may terminate the Tenancy by giving the Landlord not less than one month's notice ending on:
(a) last day of the fixed term of the Tenancy or
(b) the last day of a period of the Tenancy.
Your proposed wording would seem to preclude serving notice to end the tenancy at the end of the first month of the periodic phase (to do so would require notice in the fixed term, but notice given in the fixed term can only be to terminate at the end of the fixed term).
Clint
13:28 PM, 14th December 2016, About 7 years ago
Hi Michael
Thanks for the advice on the wording and for all the other posts which have been very helpful. I have been particularly interested in this article and have read all posts including the court of appeals ruling.
I am still waiting for the reply to my email to "MyDeposits" to which I initially got a reply stating that after the fixed term it automatically became a statutory periodic tenancy although I went into great detail informing them of the contractual periodic part of the tenancy. I have sent them a following email repeating what I had stated in my first email and also pointed them to the ruling. Hopefully, they will now take this into consideration. Will post when I have an answer
Michael Barnes
13:34 PM, 14th December 2016, About 7 years ago
Reply to the comment left by "KATHY MILLER" at "14/12/2016 - 09:04":
In my opinion (I am not a lawyer), the agreement creates a fixed term tenancy with no periodic entitlement.
If you just take out the word "statutory", the situation does not change, and a Statutory Periodic tenancy will be created if the tenant remains after the fixed term.
If you wish to create a contractual periodic tenancy after the fixed term, then you will need to rewrite various parts, probably including the definition of the Term and the notice clause.
Michael Barnes
11:15 AM, 15th December 2016, About 7 years ago
Reply to the comment left by "Chris Baker" at "14/12/2016 - 07:13":
You have no grounds to claim I am confusing statutory periodic with contractual periodic. I have made references only to fixed or periodic.
I stand corrected. You are quite correct that I have no knowledge of your state of mind.
The statement I should have made is "you are conflating 'statutory periodic' and 'contractual periodic'".
The error you appear to have made is assuming that statutory periodic tenancies and contractual periodic tenancies are the same in the eyes of the law; they are not.
A Contractual Periodic tenancy is a continuation of the fixed term (para 32 of Leeds City Council v .Stephen Broadley
A Statutory Periodic tenancy is a new tenancy (Superstrike).
You seem to be saying that a tenant that leaves before the end of a statutory periodic tenancy is the person that the council should be chasing for payment of council tax to the end of the tenancy. If that is not what you are saying, then we are in agreement. However, if that is what you are saying, then the following from the judgement refute that position.
Paragraph 5 of the judgement quotes from the Local Government Finance Act 1992 and gives the definition of Material Interest at sub-paragraph (6):
"material interest" means a freehold interest or a leasehold interest which was granted for a term of six months or more.
Paragraph 26 tells us that a Statutory Periodic tenancy does not give rise to a material interest even if it lasts longer than 6 months, as it was not granted for 6 months. Hence the tenant is liable to the council only whilst he is resident; the landlord becomes liable when the tenant vacates:
First, there is Macattram v LB Camden [2012] EWHC 1033 (Admin), a decision of HH Judge Alice Robinson (sitting as a Judge of the High Court) in which it was held that where a lease was granted for 3 years and the tenant did not give up possession, but continued in place paying rent on a basis giving rise to a monthly tenancy. The periodic tenancy arising by the payment and acceptance of rent after the expiry of the fixed term was a new monthly tenancy and was not one "granted for a period of six months or more" within the meaning of s.6(6). With respect, this was clearly right. The first grant was for three years, but the tenancy under which the tenant held thereafter had been created not by agreement at the outset but by implication of law from month to month and, although it had subsisted for more than six months in fact, it had not been granted for 6 months or more.
The Broadley judgement is about tenancy agreements that have an initial period of at least 6 months and a clause in the contract that the tenancy is to continue periodically thereafter until terminated in accordance with the contract (i.e. tenancies that become Contractual Periodic AND are for at least 6 months).
Paragraph 4 states that the tenancy agreements contained the following clause:
Whereas the landlord agrees to let the premises known as…..for a term of [6 or 12] months and thereafter continuing on a monthly basis unless terminated by either party under the provisions of Clause 3.
Therefore this judgement is specifically about such tenancies, and does not change the position for Statutory Periodic tenancies, which were determined in the case referenced at paragraph 26.
The [6 or 12] is because there were a number of tenancies of differing duration.
Paragraph 27 says Next, there is Superstrike Ltd. v Rodriguez [2013] 1 WLR 3848. In that case, there was a fixed term tenancy of one year, less a day. The fixed term came to an end and the statutory tenancy under s.5 of the Housing Act 1988 kicked in. The statutory tenancy was a new tenancy arising under statute and was not a tenancy granted by the original agreement. That is not our case.
"That is not our case" means "this judgement does not apply to Statutory Periodic tenancies".
Paragraph 32 says In a sense, the periodic tenancy began when the fixed term ended, but that was by operation of the grant itself and the true construction of it. It was not a new tenure created on the date of the expiry of the fixed term..
In other words (taking earlier paragraphs into account) "if the tenancy agreement says there is a fixed term of at least 6 months followed by a periodic term, and there is an appropriate clause under which the tenant and landlord can terminate the agreement, then the periodic part is a continuation of the fixed term and is not a new tenancy".
Re: points you raised
I move now to respond to specific points you raised.
8. This paragraph is stating the consequences if any of the council's arguments at paragraph 7 were to be successful, NOT the basis of the claims. Essentially, if any of the council's arguments were successful, then landlord would have liability for council tax after the tenant vacates for ALL periodic tenancies. They are not the same as the chart (at href=http://lgfa92.co.uk/liability-tenants-vacation-court-appeal-hearing> http://lgfa92.co.uk/liability-tenants-vacation-court-appeal-hearing), as the chart clearly shows that for contractual periodic tenancies the tenant is liable and for statutory periodic tenancies the landlord id liable. CouncilTaxGuy is correct (see elsewhere in this post).
19. This applies ONLY to tenancy agreements of the form considered in the case, i.e. those where the initial term is at least 6 months AND the contract states that the tenancy will continue on a periodic basis (of defined period) after the end of the initial term.
" tenant’s liability continued while those tenancies subsisted as periodic tenancies": A statutory periodic tenancy is a NEW tenancy, so the original tenancy granted where the term is "X months" does not subsist as a periodic tenancy.
You are wrong,
Worst still you are spreading this via Property118 and others sites,
Councils (and many landlords) will pick-up on this as being correct, this will undoubtable cause problems and or costs for Landlords, you need to correct the information immediately."
Unfortunately it is you that is wrong and spreading misinformation.
Michael Barnes; I hope you are with me on this
I am not because you are wrong, as I have explained in this (long, for which I apologise, but necessary) post.
Summary
This case was taken to the Court of Appeal to settle a point of law regarding who is liable to pay Council Tax to the council when a tenant vacates before the end of a contractual periodic tenancy.
A. It does not change the position where the tenancy is in a fixed term of 6 months or more: the tenant is liable (paragraph 5, last sentence).
B. It does not change the position for a Statutory Periodic tenancy: the landlord is liable (paragraph 26, 27).
C. It clarifies (for me at least) that for an initial term of less than 6 months the landlord is liable at all times (paragraph 26: it is the grant that is important, not the actual time the tenancy persists).
D. It settles the position where the initial term is 6 months or more and the contract provides for the tenancy to continue thereafter on a periodic basis (para 36, 33, supported by para 3, 4, 5, 13, 22 and 32)
Norfolkngood
14:23 PM, 15th December 2016, About 7 years ago
Michael, You are making false statements that the Broadley case only held for contractual tenancy. Mr Broadleys had tenants who were under a periodic tenancy. I am not interested in yours or others further waffling’s or misinterpretations.
The only information in am interested in is from the official government or court pages, you have these I don’t know why you can’t see the Broadley case did indeed deal with periodic tenants who were not in occupancy. The super strike was referred to by Lord Justice Underhill who said it was not applicable in this case.
This case is about who is liable for council tax.
Third parties such as the CouncilTaxGuys site
this page you site http://lgfa92.co.uk/liability-tenants-vacation-court-appeal-hearing is a page created by a third party, and printing the opposite to the findings of the Leeds City council v broadley case high court and appeal decision. The danger is that people like yourself with influence to guide others are picking this up as if it was correct.
The official high case report and the official appeal case report are found here.
https://cases.legal/en/act-uk2-270223.html
http://www.bailii.org/ew/cases/EWCA/Civ/2016/1213.html.
Mr Broadley claimed that his tenants were responsible for liability for council tax despite the fact that they were out of their contractual contract and in the follow on periodic contract and despite the fact that they had vacated the property, were still under contract and held “material interest” above that of Mr Broadley.
Judge Edis found in favour of Mr Broadley < it is that simple
Leed City Council went to appeal
The Appeal judges all up-held Judge Edis findings.
Because Mr Broadleys tenants were in their periodic term, if any of the the judges only regarded the contractual term as the tenant being liable, then Mr Broadley would have been deemed liable and he would have lost the case. He did lose did he! He won this high court appeal case.
It is a big win for Landlords. Michael you should see this.
So provided a AST is of 6 months or more and can be terminated, that the tenants be they in contractual or periodic or be they in or out of occupancy hold material interests that supersede that of a landlord in regards to council tax liability.
I have no objection to using a different word in a contract to say that once the fixed term ends a contractual period begins, the judges in the Broadley case had no problem with the usually wording, so along this basis changing the word is not necessary, it could create other issues.
To anyone is following this I sincerely hope you, look at the official case shown here
https://cases.legal/en/act-uk2-270223.html
http://www.bailii.org/ew/cases/EWCA/Civ/2016/1213.html.
Don’t get drawn in by false claims and misiterpritations.
This is a fantastic win for Landlords across the country, it is states a tenant holds the “Material Interest” of a property for Council Tax Liability until the official end of the tenancy. The find is irrespective of the contract being fixed or periodic or occupancy or non occupancy.
It can’t be any clearer.
If you wish to believe otherwise that’s entirely your choice.
Down but not Out
Michael Barnes
17:03 PM, 15th December 2016, About 7 years ago
Reply to the comment left by "Chris Baker" at "15/12/2016 - 14:23":
In the Broadley case, court of appeal judgement it clearly states
A. all the tenancy agreements were written such that the term had an initial period (6 months or more) followed by a monthly periodic term (paragraph 4).
B. Tenancies that have become statutory periodic (because the agreement only specifies a fixed term) do not amount to a material interest in the property and so do not make the tenant liable for council tax after they vacate (paragraph 26).
i.e. the nature of the periodic tenancy affects the tenant's liability to Council Tax if they vacate before the end of the tenancy.
Clearly you do not have the knowledge and/or intelligence to understand a legal judgement even when it is spelled out for you.
On that basis, I am out of this conversation.