Short term lets continue to be a hot topic for lawyers and politicians alike. Following the relaxation under the Deregulation Act 2015, there has been a significant increase in the number of properties listed for short term lets on sites such as Airbnb.

The Evening Standard has reported an increase in the number of properties being listed on Airbnb with an 80% increase in Westminster; a 124% increase in Camden; a 79% increase in Kensington and Chelsea and a 139% increase in Southwark. This interesting visual map demonstrates the growth of Airbnb in London since 2008.

As well as the various legal implications of letting out properties on short term lets, which I have dealt with in a previous posts, politicians have raised concerns about the reduction in the Capital’s housing stock with property owners opting for more lucrative short lets. Constituents have also complained to their local MPs about neighbouring properties becoming “party hotels”, causing misery for residents.

Following extensive media coverage on the topic and growing pressure from the Mayor of London, MPs and Government Ministers, Airbnb reacted by imposing restrictions on “hosts” from letting their properties in London for more than 90 nights a year and consequently breaching s25A of the Greater London Council (General Powers) Act 1973, which permits short lets provided it does not exceed 90 aggregate nights in any one calendar year.

However, as I have previously commented, one of the main flaws in the legislation is the ability of local authorities to enforce the restrictions. Despite Airbnb’s efforts to restrict lets to 90 nights a year, homeowners can easily by-pass the restrictions by simply making minor amendments to the property address.

Local authorities enforce the provisions by serving an enforcement notice for breach of planning requiring the cessation of such use. If the use is continued in contravention of the enforcement notice then an offence is committed and the local authority will consider a prosecution. But evidence of use is needed and this can be expensive and difficult to obtain.

Property owners can apply for planning permission for a change of use from Class C3 (dwelling house) to Class C1 (hotel). Two leaseholds of former council properties in Elephant and Castle recently had planning permission applications refused by Southwark Council on the grounds that “the proposal will result in the loss of a housing unit of which there is a significant need for in the borough.”

The challenge for local authorities is obtaining the necessary evidence that property owners are breaching the law. For local authorities with increasingly limited resources, this can be difficult. Last week Labour’s Westminster North MP, Karen Buck, introduced a Private Members’ Bill which would require property owners to notify local authorities of their intention to let their property on short lets. We are currently awaiting the details of the Bill which is due to have its second reading on Friday 12 May 2017. The Bill has cross-party support from other London MPs including Tulip Siddiq (Hampstead and Kilburn) and Andy Slaughter (Hammersmith). You can follow progress of the Bill here.

We await to see the exact details of Bill and whether it will attract enough support to progress through Parliament. What is clear is that the current issues surrounding short lets in the Capital continue to be of interest for landlords, local authorities, MPs and the general public.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

On 6 April provisions of the Housing and Planning Act that directly affect landlords will start to come into force under a recent commencement order, click here.  These only apply in England as most of the Act has no application in Wales.

The two key areas which will come into effect in April are:

1. the widening of Rent Repayment Orders (RROs); and
2. new fixed penalty notices.

RROs

The Rent Repayment Order (RRO) has been around for some time in relation to the failure to licence a property under an HMO or selective licensing scheme created under the Housing Act 2004. They allow a local authority who is paying housing benefits or a tenant to apply to the First Tier Tribunal (FTT) to recover up to 12 months of benefit payments or rent respectively from the landlord. While a local authority can seek an RRO without securing a criminal conviction first the tenant is more limited and can only act on the back of a criminal conviction or an RRO obtained by a local authority.

The new regime widens the grounds on which an RRO can be obtained and also makes the process of getting one far easier. An RRO can now be sought for a broader range of offences under the Housing Act 2004. This means not just failing to license but also breach of an improvement notice and breach of a prohibition order. It is also possible to seek an RRO where the landlord has committed an offence of harassment, unlawful eviction or violent re-entry. Later this year a breach of a banning order will be added to this list.

In addition, both local authorities and tenants can seek an RRO directly without the need for any form of prosecution first. However, if there has been a prosecution or the local authority has issued a penalty notice for the same matter then the discretion of the FTT is very limited and they are expected to order the entire sum claimed, potentially all the rent for the last twelve months. Where no prosecution or penalty notice has been issued then the FTT has a discretion and should order the amount they consider reasonable in the circumstances. In the past, this has led to the FTT deducting the landlord’s expenses (mortgage, insurance etc.) from the sum awarded. Whether they will adopt the same approach under the new regime remains to be seen.

A further regulation has been made to specify how local authorities must deal with money recovered from RROs, click here. They are permitted to use any money recovered toward enforcement costs associated with private rented sector work. Spare funds after that go to the Treasury.

There is meant to be government guidance on the operation of these provisions but at the time of writing it has yet to appear. It is expected at some point in the week commencing 20 March.

The new provisions also place a local authority under a duty to consider seeking an RRO where they can and is also empowered to assist tenants in applying for an RRO, either by providing advice or even by conducting proceedings.

Financial Penalties

The new financial penalty regime also comes into force on 6 April. This allows local authorities to choose, instead of prosecution, to levy a financial penalty of up to £30,000 in respect of any offence under the Housing Act 2004 (eg. no licence, breach of licence condition, breach of HHSRS enforcement notice etc). Again, breach of a banning order will be added later.

The penalties are for each offence committed and so a landlord with no licence, no electrical testing certificate, and a dirty bathroom (a licensing offence and two offences of breaching the HMO Management Regulations) making a total of three offences could find themselves facing a fine of anything up to £90,000. However, the local authority is not supposed to issue the maximum fine in each case and the forthcoming guidance from the government is intended to assist in setting an appropriate penalty for each matter.

A landlord presented with a financial penalty has 28 days to make representations to the local authority after which the local authority will consider these and issue a final decision notice. After the final decision, the landlord can, within 28 days, appeal to the FTT.

As with RROs a local authority may retain any money recovered from financial penalties to meet any cost and expense relating to enforcement in the private rented sector with any residue being passed to HM Treasury.

Landlords

Landlords should be aware of their obligations under the Housing Act 2004. Lots of properties are HMOs without needing to be licensed and the new penalty regime enables local authorities to enforce against these more effectively. It is likely that many local authorities will invest increasing time and effort into enforcement. As an upside, this may make local authorities re-consider the value of licensing schemes as the new abilities to seek financial penalties may be more effective in tackling bad landlords. It should also be noted that tenants will be motivated to carry out their own investigations and enforcement action with the possible reward of recovering their rent.

Local Authorities

Local authorities need to develop clear enforcement policies in relation to when they will use financial penalties as opposed to prosecution and how they will decide on the appropriate fine level.  Similar policies will be needed in relation to RROs and what level of support is to be given to tenants.

At the same time, local authorities will need to be clear on how much they are spending on private sector enforcement and therefore how much RRO and financial penalty monies they are entitled to retain.

Conclusions

The Housing and Planning Act changes are likely to revolutionise enforcement in the private rented sector. Landlords will need to ensure that they are scrupulous in complying with their obligations. Local authorities will need to develop detailed policies and a clear strategy in relation to their objectives in relation to the private rented sector and how they will achieve them.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Giles Peaker has appeared on the popular BBC Two programme with Victoria Derbyshire.

‘Revenge evictions’

Giles comments on the state of rented accommodation up and down the country, the hazards and how revenge landlords law isn’t working. The real life case studies show some of the terrible conditions that people live in and the issues that are ignored by landlords. When the issues were raised with the landlord the tenants were served with section 21 notices. The programme highlights the figures showing how many people have been affected. Revenge evictions are illegal and Giles comments on the law around this.

Full discussion can be watched on their website.

Giles also appeared on the BBC London lunchtime news this month talking about Southwark’s major works charges to leaseholders

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The Ministry of Justice wants views on its competitive tender model for court-based housing possession duty contracts. The consultation closes on 17 March.

There are 112 providers of the national court duty scheme funded through legal aid to cover vital emergency provision of advice and legal representation to litigants at court facing possession proceedings. There are also about eight other courts that run an independent scheme which is not publicly funded. Such is the recognition of the impact and importance of these duty schemes.

The consultation is based on price-competitive tendering (PCT) which the government expects will increase sustainability for those delivering the service. This is to be achieved by consolidating the current number of schemes, where allocation is by one provider for each local court, to a system of allocation based on groupings determined largely on price. Quality is essentially expected by complying with the Legal Aid Agency’s stipulated standards for contract providers.

The new departure in the way contracts are to be offered to practitioners is merely a revival of the idea of PCT for legal aid contracts which was heavily criticised when the government sought to apply it to criminal law contracts. In April 2013, following fierce opposition from criminal lawyers and the Law Society, Chris Grayling abandoned plans to introduce PCT for criminal legal aid work. I do not consider therefore that the lord chancellor could have an ideological commitment to PCT. It is but a blunt instrument to save money which the Treasury demands.

A price war will not improve services nor help the vulnerable. PCT only really works where it is applied to basic products and services costed to operate at a minimum price. For example, research from the Joseph Rowntree Foundation found that competitive tendering militates against the development of a quality product.

Enforced competition brings far-reaching changes to management and organisational cultures. The legal sector is not an area where the government should be proposing competitions and markets because the work has to be delivered professionally. As was once told to me, a true professional does the work to a high standard, more often the benchmark being: do you continue to do that work to reach the standard expected when you least wish to do it, and regardless of remuneration?

Market-driven forces create situations where, even if a lawyer wanted to act in a client’s best interest and carry out the job to a high standard, they would be prevented from doing so where a job has to be done for a price. It becomes, as Law Society president Robert Bourns said recently, ‘a race to the bottom which may impact on professional standards’.

Notwithstanding the urge to save money, the government has a duty to continue to meet the needs of the most vulnerable and all who attend court and face the prospect of losing their home. The departure to a scheme based on price will cause irretrievable damage to an already fragile supply base. Even now, most duty court schemes are operated by not-for-profit agencies and small to medium-sized law firms. While the proposal is predicated on the basis that lawyers may take a price cut if they were guaranteed a greater volume of work, there is no commercial advantage to bid on the basis of price. The new scheme of tendering will undermine the quality aspect underpinning the Legal Aid Agency’s stipulated standards fo r contract providers.

I cannot see what economies of scale can be gained by simply grouping courts together as proposed. This proposal represents de facto price competition in a landscape which has already endured drastic cuts to the scope of civil legal aid, along with no increase to fees for over 15 years. I urge practitioners to respond in the only way we can which is to oppose any notion of PCT being applied to housing cases.

This article was taken from the Law Gazette.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Part 2 of this blog series looked at the HMO test under the Council tax regulations, click here to read my previous blog.. This blog will look at exemptions and how the tenancy agreement itself can affect who has to pay council tax.

Do any exemptions apply?

It is important to note that council tax is only payable on dwellings which are not exempt. One of the most common exemptions is the student exemption. If you let your property entirely to students and they fall within the exemption then council tax is not payable. This is the case even if the owner/landlord is liable as the exemption attaches to the dwelling and not the person who is liable to pay.

 Check your contract

It is important to note that despite the statutory rules, there is nothing stopping the landlord and tenant from agreeing who is responsible to pay council tax and incorporating this into the tenancy agreement. For example, although the landlord may be liable to pay under the HMO test, the landlord could pass this charge on to the tenants. In most cases the landlord will do this simply by increasing the rent payable. However, landlords should be wary that if the council tax is included in the rent and it suddenly increases it may be difficult to pass that increase on to tenants. Therefore it is sensible to include a clause requiring tenants to reimburse the landlord for any increases in council tax.

Where landlords are not liable to pay, they should be careful to review the terms of their tenancy agreements to ensure the terms set out the correct position. If there are clauses in the agreements that say the landlord will be responsible for paying council tax (perhaps because the landlord mistakenly thought they would be liable because the property is an HMO under the Housing Act 2004) the landlord could be contractually liable to pay under the terms of the agreement, regardless of what the statute says. The contractual terms agreed between the landlord and tenant prevail.

Conclusion

Council tax and HMOs are complicated areas of law and often specialist advice is needed. Sometimes the VOA will band a property incorrectly or the local authority will serve council tax demands on the landlord when they are not actually the liable person. Many council tax demands are generated automatically by computers and without much scrutiny. Appeals lie first to the local authority and then to the Valuation Tribunal.  We have had success challenging council tax demands on behalf of landlords and raising appeals on the issue of whether a property should be classed as an HMO and whether the landlord should be liable to pay council tax.

Should you have a query on this topic then please do not hesitate to contact us.  Please click the links to read part one and part two of this blog.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Tenants who find themselves living in homes that require significant repairs may feel powerless to change their situation. When you’ve requested time and time again that your landlord addresses the issue, but are faced with either platitudes or radio silence, it can be tricky to know how to proceed.

If your rented home is in a state of disrepair, we’ve asked our team of housing and property law experts for advice on what you can do next. Read on to find out what steps you can take to improve your situation, and how much compensation you may be entitled to from your landlord.

 

What is housing disrepair?

Housing disrepair is a term used to describe a property which has one, or more, issues that make it unsuitable or unsafe for a tenant to live in. In the rental sector, all houses which are let out as properties must meet the minimum guidelines and requirements, before they can be legally let out. If these housing requirements aren’t met, civil and even legal action may be taken against the landlord.

Housing disrepair can cover a wide range of problems, which would render a house unsuitable for rental. This could include a lack of heating or hot water, structural damage, faulty electrical wiring, and a number of other things.

 

 

Types of Housing Disrepair

While there are a wide range of problems that a property may have that would constitute a state of housing disrepair, here are some of the most common kinds of complaints that we hear about from tenants. Whilst some of these are certainly more serious than others, any one of these issues can render a property unsuitable to let, depending on the severity.

1. Large areas of damp, or mould in the property
2. Leaks from windows, doors, or roofing
3. Plumbing or sanitation issues
4. Faulty wiring, or lack of electricity in the property
5. Lack of heating or hot water supply
6. Broken windows or doors
7. Missing or unsuitable flooring
8. Pest infestation
9. Broken fixtures and fittings, posing a hazard to tenants
10. Harmful building materials, like asbestos or exposed insulation
11. Poor ventilation
12. Poor maintenance, rendering a property unsafe for children or animals

As you can see, there are a number of issues which can cause tenants to seek outside help, if the landlord is unwilling or unable to make the necessary repairs to their property. Sadly, many of the tenants we speak to find themselves experiencing not one, but several of the above issues in a single property. 

Severe housing disrepair can even lead to the house being classes as unfit for human habitation. To find out more about these seriously neglected properties, and what your rights are if you have been living in one, feel free to read our related article: How bad do conditions have to be to make a property unfit for human habitation?

 

Housing Disrepair Compensation: What you can claim for

In the UK, the law in clear that tenants should not be subjected to dangerous or unsuitable living conditions, whilst landlords or councils continue to profit from their tenancy. Landlords have a responsibility to their tenants to car out repairs within a reasonable amount of time, but some unscrupulous individuals will try to evade their legal duty.

If you are a tenant or leaseholder and your landlord has failed to carry out repairs which they knew about to your home, you are likely to be able to ask the court to award you three things: an order compelling your landlord to complete the repairs, compensation, and your legal costs. There are a lot of different factors deciding how much compensation you will be awarded, and two identical cases before different judges could come out with different results. Your solicitor will be able to advise you as to what you are entitled to claim for. However, these are some of the most common expenses that tenants will bring claims against their landlords to have compensated.

Compensation for pain, suffering, and loss of amenity

You will be compensated for ‘pain, suffering and loss of amenity’ for the inconvenience and distress caused by having had to live in a property in disrepair, or possibly for having to leave your home as a result of the disrepair. This is calculated in relation to your rent if you are a tenant, or the market rent for your home if you were to let it out to an assured shorthold tenant if you are a leaseholder. You essentially will receive a percentage of your rent back for the period in which you have had to live with disrepair. It doesn’t matter if someone else pays your rent, such as the Housing Benefit department, this is just a way of calculating how much compensation you should get rather than actually getting some of your rent back.

The percentage that you receive will depend on how severe the disrepair, and therefore your loss, is. If your property is completely uninhabitable, but you have been living in it anyway, you will receive 100%. This is extremely rare. An award of 100% would be possible for a property with no heating or hot water, perhaps no water or electricity supply at all, extremely severe damp, and structural damage meaning it was dangerous. It is much more usual for judges to make awards around the 25% to 50% range. There is no hard and fast rule, it will be decided by comparing past cases to yours.

Example

Disrepair: plumbing leak into one room for 4 years continuously.

Rent: £600pcm

Value of rent for the whole period of the claim: £28,800

Compensation at 25%: £7200

Compensation for lost or damaged items

If your belongings have been damaged as a result of disrepair, for example water damaged by a leak, or you have been put to extra expense, for example having to pay higher heating bills due to draughty windows, you will also be compensated for this loss.

You will not usually be awarded the replacement value for an item, but a sum to reflect the fact that the expected lifetime of the item has been cut short. For example, if your five-year-old carpet which cost £1000 was ruined by a water leak, and could have otherwise been expected to last 15 years, you might receive around £650: you have lost around two thirds of the carpet’s expected life.

The amount you receive will also depend on the proof you are able to provide that you had and lost the items, for example receipts and photographs. If you don’t have proof, you may be awarded something, but usually less than if you did have proof.

Compensation for financial loss

If the housing disrepair has meant that you’ve had to pay out of pocket for expenses directly related to the issue, you may be able to claim this back as part of your settlement. For instance, if the heating in your property has not been working, meaning you’ve had to purchase space heaters and pay a higher electric bill to run them and keep the house at a habitable temperature. This money spent can form a part of your claim, especially if you have carefully documented what you have spent, as well as your attempts to get the landlord to fix the issue.

 

 

Making a Housing Disrepair Claim

If you’ve been reading this article, and think you may have a potential claim against your landlord for housing disrepair, it can be tricky to know where to begin. We’ve spoken to the experts from our dedicated Housing and Property Disputes team, and summarised their suggestions below.

Housing Disrepair Claims against Private Landlords

To bring a claim against your private landlord for housing disrepair, these are the initial steps you will need to take. 

• Gather your evidence. If you’re able to photograph the disrepair, do so and keep a record of every time you have brought this up to your landlord. Written communications such as emails and text messages are best, as these can be presented as evidence, and also have clear time stamps indicating the timeline of the issue.
• Reach out to your landlord. If you haven’t already, make a clear, written request to your landlord to address the damage. This gives them the opportunity to ensure their house is up to the standards required of rental properties. However, if you have already experienced a financial loss, or other hardship due to the disrepair, you can still go ahead with your claim, even if the landlord elects to take action. If this wasn’t done in a timely manner and you, and your family, have suffered as a result, you still have the right to make a claim for compensation.
• Research housing disrepair solicitors, and find one who is suitable. Locate and contact a solicitor who will be able to advise or support you in your claim. They should have relevant experience in housing and property disputes, and it’s also worth checking their reviews to make sure they are a firm that you can trust with your case.

At Anthony Gold, we are well-practiced in housing disrepair claims, and even have a no-win, no-fee service to help you achieve the justice and compensation that you deserve. Contact us to make an enquiry, and a member of your team will be in touch shortly to discuss your case. 

Housing Disrepair Claims against City Councils and Local Authorities

If your landlord is your city council or local authority, and they have failed to respond to your requests for repair, you can still take legal action which would require them to carry out the repairs, and/or compensate you for the hardship you have experienced. 

Local councils often face difficulties with the resources required to make repairs, meaning that waiting times for council tenants can be extremely long. However, as landlords, it is their legal responsibility to ensure the property is up to the required standard, and you are still entitled to make a claim if this duty is not upheld. 

If you rent from a council or housing association, you can also report the issue to the Housing Ombudsman, to request compensation. However, this may also take a long time, and a private solicitor may be able to deliver a faster result. 

 

Housing Disrepair Claims: FAQs

Can I claim compensation for damp and mould?

Yes, if you live in a rented property which suffers from areas of damp, or mould, you may be able to claim compensation from your landlord. Damp and mould in residential properties may seem like a small issue, but the fungal spores that the affected areas produce can be harmful, and even deadly to asthma sufferers, young children, and the elderly. It is not healthy for a person of any age to be living in a property with a chronic mould problem. 

If you have reported this to your landlord, and they have failed to take action to address the issue in a timely manner, you may be able to make a claim against them which legally obliges them to make the repairs. They may also be required to pay compensation for the effect the disrepair has had on you, or your family.

Can I claim compensation from my landlord if my house has no hot water?

To claim compensation from your landlord for a lack of hot water, you must first prove that the lack of heating or hot water is a result of their actions (for instance, if they have failed to provide you with a working boiler). You will also need to provide evidence that they have failed to address the issue within a reasonable amount of time, and that you have suffered, financially or otherwise, due to the lack of hot water or heating in your rented property.

How can I prove that my house is in disrepair?

The type of disrepair you are claiming for, and the evidence needed, may vary, depending on the nature of the issue within your rented property. Damage to fixtures and fittings and missing floorboards can be shown in a photograph, whereas a lack of heating may require a different type of evidence. 

Speak to a solicitor, or housing advisor, to find out the best way to demonstrate issues which may not be as visible as damp, mould, or broken items in the home.

How much compensation can I get for a housing disrepair claim?

The amount of compensation you are entitled to is calculated based on the amount of rent you have paid to the landlord, whilst living in a property that is in disrepair. If the home is ruled uninhabitable, you may be entitled to a refund of 100% of your rent — however, this is very rare. Typically, you may be awarded 25% to 50% of your rent, depending on the severity of the disrepair. 

If my house is in disrepair, should I stop paying rent?

It may seem unfair, but even if your landlord is refusing to carry out essential repairs, you are still legally obliged to pay your rent under the terms of your housing contract (unless otherwise specified). Withholding your rent puts you at risk of eviction, and may also weaken your case if you choose to make a claim for compensation due to the housing disrepair. Rather than withholding rent, we recommend speaking to a housing advisor, solicitor, or your local authority, if you are living in a council-owned property.

How do I go about making a claim for housing disrepair?

If you think you might have a claim against your landlord for disrepair, contact Anthony Gold and speak to a member of our expert team. We may be able to take on your case under a no-win, no-fee agreement.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

The first points to consider are the extent of the chargeable dwelling and the basis of the tenants’ occupation. Click here to read part 3.

The extent of the ‘dwelling’

Council tax is payable on ‘chargeable dwellings’ which are not exempt. Therefore, the first step in determining who is liable to pay council tax is to establish the dwelling on which council tax is chargeable. This can be unclear where a property is multiply occupied. In some circumstances, the entire property may be classed as one dwelling and placed within one council tax band by the Valuation Office Agency (VOA). In other situations, the VOA may decide that each room within a multiply occupied property constitutes a separate dwelling and should be banded separately. The VOA have produced guidance on the banding of HMOs.

Each case is fact specific but whether a property is banded as one or multiple dwellings usually depends on the extent of adaptations to the property and the degree of self-containment within the individual units. A shared house where the tenants occupy the whole property may constitute a single dwelling, whereas in a house that has been fully converted into separate bedsits, each bedsit may constitute a single dwelling and be banded separately. This distinction can significantly affect the level of council tax payable.

Basis of occupation

Once the extent of the dwelling or dwellings has been established then you have to look at the occupation of the dwelling to determine whether it is an HMO. This involves applying the HMO test set out in the council tax regulations.  Here are some common scenarios.

1. Three friends occupy a shared house under a joint tenancy agreement. The friends have allocated rooms between themselves but under the terms of the tenancy agreement the whole house is let to the friends jointly and they are all liable for the whole rent. While this property may be an HMO under the Housing Act 2004 (and could potentially be licensable under some local authority licensing schemes) it may not be an HMO for council tax purposes. This is because the joint tenants do not occupy or pay rent in relation to only part of the dwelling. While the tenants may decide to assign rooms to themselves and pay different contributions to the rent, legally and under the terms of their tenancy agreement, they are all entitled to occupy the whole of the house and are all liable for the whole rent. This issue was dealt with in some detail in the case of R(on the application of Goremsandu) v Harrow London Borough Council [2010] EWHC 173 (Admin) and the High Court made clear that the tenancy agreement was the main arbiter of the type of tenancy held. As the HMO test was not satisfied in this case the owner was not automatically liable and the residents were liable to pay council tax.

2. Five individuals occupy bedsits under individual tenancy agreements. Each bedsit has its own en-suite and kitchenette and the rooms are banded individually. Provided the VOA’s decision to band the bedsits separately is correct, again, the landlord is unlikely to be liable to pay council tax in this scenario. This is because the individual bedsits are each chargeable dwellings in their own right and provided the bedsits are occupied by one tenant and have not been adapted for occupation by more than one household, they will not satisfy the HMO test. The individual residents will usually be liable to pay council tax on their own bedsit.

3. Two individuals share a two-bedroom flat. Each tenant has a separate tenancy agreement for their allocated room and is solely liable for the rent for the room. The individuals share the kitchen and the bathroom. The flat as a whole is banded as one dwelling. This flat cannot be an HMO under the Housing Act 2004 as there are only 2 occupiers. However, it could be an HMO for council tax purposes because each person who lives in the dwelling is only able to occupy part of the dwelling. Both tenants have exclusive possession of their bedrooms and are unable to enter the bedroom of the other tenant. In this situation the flat is likely to be an HMO for council tax purposes and the landlord would be liable to pay council tax.Even if the landlord is liable to pay council tax under the regulations, you may still not need to pay if there are council tax exemptions or the tenancy agreement states otherwise. These further factors are addressed in part 3 of this blog series.

Please click here to read my previous blog.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

My client was granted a secure tenancy of a Victorian property. After removing some of the wallpaper she realised that the premises suffered from rising dampness and extensive cracking throughout and she was unable to move in.

The landlord agreed that the premises were not fit to live in but rather than offer repairs they said that they intended to withdraw the offer as the property was a void property and should not have been offered in the first place. My client had obtained the property by bidding under the choice based lettings scheme and it was suitable for her needs had it not been in disrepair. She had a dual rent liability which she could not afford. Housing Benefit refused to pay for two properties. Housing Benefit was paid for the address that she was actually living at and the rent account for the subject premises fell into arrears.

The landlord agreed to carry out extensive works and to waive any rent liability after my client’s housing benefit appeal had been exhausted. However, they were insisting that there be a surrender and re-grant of the tenancy. My client refused to agree to this course of action for the following reasons:-

1. In the event that the premises were sold or re-let her claim for specific performance would be frustrated.
2. The premises were empty and the landlord was in possession of the keys and was able to carry out works without any hindrance and at their own convenience.
3. My client would be unable to deal with any practicalities as the actual tenant such as collecting mail or liaising with the contractors.

The offer to waive any rent not paid by Housing Benefit was too vague. My client would have been left to chase the outcome of a housing benefit appeal before any rent was waived. Further, had the Housing Benefit appeal failed for some other reason, such as failure to provide information, the local authority could argue that the appeal had not been exhausted.

After proceedings were issued and disclosure was provided the case finally settled on the basis that works were completed in accordance with the expert report and there be a complete waiver of the rent and council tax on the premises. The landlord also agreed to pay a further £1000 to compensate the client because the premises should not have been left in that condition.  The landlord also agreed to pay the claim for special damages in full.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*