Monday, 24 June 2019

Alive But Missing: New Law

The Guardianship (Missing Persons) Act 2017 will come into force in England and Wales on 31 July 2019. It's taken a bit of time for this to happen after it was passed. I had considered reporting it as a missing piece of legislation.

The Act fills a gap in the law. If a person is missing for seven years then it may be possible to get the court to make an order that they are presumed to be dead. This then enables their affairs to be wound up as though their corpse had been found.

But say they're been missing for less than seven years or the evidence suggests that they are still alive, no matter how long they have not been heard of? This is where the new Act gets going. It will enable an adult to apply to the High Court to be appointed as their guardian and so administer their affairs. The application could be made by their spouse or civil partner or, with the court's permission, another relative or even a friend. If granted, the guardian would be able to access funds in the missing person's bank account, pay the mortgage instalments on their home or pay themselves maintenance, cancel a subscription to Playboy and do a myriad of other things in their best interests.

Before appointing a guardian the High Court will need to be satisfied that the person has been missing for at least the previous 90 days and that the appointment of a guardian is in the missing person's best interests. In urgent cases, the court will have a discretion to appoint a guardian even when the absence has been less than 90 days.

The court is likely to look for evidence from the police that the person has been reported to them as missing and to want to know the outcome of the police enquiries.

A code of or practice and procedural court rules dealing with these case are awaited.

If your marriage or civil partnership is a bit rocky, better not go on a prolonged holiday, eh?!

Sunday, 23 June 2019

Divorce Reform Latest


For the story so far, see -

The proposed changes to matrimonial law are contained in the swingingly entitled Divorce, Dissolution and Separation Bill which is due to receive its second reading in the Commons next Tuesday 25 June 2019. 

A couple of surprises (to me, at least). Generally, if one of the parties to a marriage or civil partnership states in court papers that the marriage or civil partnership has irretrievably broken down, that will be accepted by the court as conclusive evidence that - it has irretrievably broken down. On the face if it, then, no chance for the other party to defend the case on the basis that, for example, 'She kissed me on the lips this morning and suggested we go on a second honeymoon'. My guess is that this provision will be attacked during the Bill's parliamentary passage.

And there will be the opportunity for the other party to the proceedings to block the finalising of the second decree - we call it the decree absolute at the moment -  so that the court can consider whether any financial provision for that party made by the party after their freedom from the relationship, is reasonable enough. Under the current law, this opportunity exits but only where the divorce or partnership dissolution is going ahead on the basis of separation (two years' with consent or five years even without consent).

I'll keep you posted.

Friday, 7 June 2019

Mastercard Collective Claim: Very Latest

For plastic background, see -http://www.breakinglaw.co.uk/search/label/MasterCard%20claim

Mastercard has requested permission from the Supreme Court to appeal to it against the Court of Appeal's ruling in favour of Walter Merricks. The request will be considered by Supreme Court Justices on the papers and their decision is expected before the end of July 2019.

Friday, 31 May 2019

New Section 21 Notice from 1 June 2019

Calling all landlords. The prescribed assured shorthold two months' (at least) notice under section 21 of the Housing Act 1988 changes for England TOMORROW  01 June 2019. Use the current form at your peril. Calling all tenants. If your landlord gives you an out of date notice on or after 01 June 2019, it may be invalid and you should obtain professional advice on it if you are resistant to having to go.

It's the prescribed  form 6A I am on about and it is amended by  the Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) Regulations 2019 (SI 2019/915). But the prescribed form is not mandatory, although it can be used, for assured shortholds created before 1 October 2015 or statutory periodic tenancies which have come into being on or after 1 October 2015 at the end of fixed terms created before 1 October 2015. Phew!

The amended  form is inspired by the Tenant Fees Act 2019 which also comes fully into force on 01 June 2019 (see http://www.breakinglaw.co.uk/2019/05/big-new-tenancy-laws-tenants-rejoice.html). It draws the tenant’s attention to the fact that section 17 of the 2019 Act prevents the landlord from serving a section 21 notice so long as all or part of a prohibited payment or unlawfully withheld deposit has not been repaid. There’s also new guidance to the tenant on homelessness support services. And the tenant’s attention is now directed in a more helpful way to the paralysis inflicted on the landlord in serving a s 21 notice where a house in multiple occupation (HMO) is unlicensed.

For much more on landlord and tenant law, treat yourself to my book Breaking Law (there he goes again). You know it makes sense.

Sunday, 12 May 2019

Big New Tenancy Laws : Tenants Rejoice, Landlords Weep

01 June 2019 it's happening. The Tenant Fees Act 2019 then comes into force. For all assured shorthold flat and house lettings in England on or after that date, brand new laws will strengthen tenant rights and will make landlords wonder whether they would better off investing in coffee shops or public conveniences. Student lettings and licences are covered too: not social landlord lettings so local authority and housing association lets are out. And as from 01 June 2020, what's banned under new lettings will become banned under lettings before 01 June 2019.

What is banned then?
  • A security deposit (to cover damage to the property or any default in the payment of rent, for example) for more than five weeks' rent or six weeks' rent if you are a Premier  Division footballer and will be paying an annual rent of £50,000 or more. These deposits for assured shorthand tenancies must still be protected with an approved scheme, as at present.
  • A reservation deposit ('We'll hold the place for you but it has attracted an enormous amount of interest and, in fact, I have an appointment with 12 couples this evening, all of whom are bursting to take it.') for more than one week's rent.  But in certain situations the deposit must be returned to the tenant. They generally include where a tenancy agreement is entered into; where no agreement is reached within 14 days; or where the landlord  has asked for a banned fee or wants the tenant to agree to an unreasonable condition.
  • A fee so that you can have the privilege of viewing the property.
  • A tenancy set up fee.
  • An inventory check fee at the start or end of the tenancy.
  • A fee for having to replace a lost key unless it was reasonably incurred and you are shown the relevant invoice.
  • An interest or other charge for the late payment of rent where the rent is less than   a fortnight overdue and, where a fortnight overdue, any interest payment exceeding 3% over base rate is prohibited.
  • A charge for transferring the tenancy at the  tenant's request which is higher than  a reasonable amount but, in any event, no more than £50.
  • Charging the tenant any more than the landlord's actual loss where the tenant wants to go before the end of a fixed tenancy or without giving notice.
  • A fee for professional cleaning of the property at the end of the tenancy (but the tenant can be charged for cleaning which was necessary for breach of a tenancy agreement not to turn the place into rubbish tip).
If an amount over a maximum figure is required then it is the excess that is treated as banned and irrecoverable. So long as the charge is not banned by the new law, a clause in the tenancy agreement which entitles the landlord to be compensated for breach of the tenancy is ok ( for example, having to pay up for damaging the property).

A landlord who breaks the new law can be prosecuted by trading standards or fined up to £30,000. The landlord can appeal against a fine to the first tier tribunal. A tenant whose banned fee or holding deposit has not been returned will be able to get it back either through a trading standards demand of the landlord or the county court, depending on whether or not there has been a prosecution. Trading standards should help.

So long as the landlord has not returned a banned fee or a holding deposit which broke the law, they cannot give the tenant notice they want them out under section 21 of the Housing Act 1988 which is the two month job for assured shorthold agreements.

As for pre-1 June 2019 tenancy agreements, from 01 June 2020, a fee which would be banned for new agreements will then be banned for the old agreements (but not before then). That means the tenant will not be liable to make payment on or after 01 June 2010 but will be entitled to repayment of any banned sum paid over on 0r after 01 June 2020. So the landlord can collect up to 1 June 2020. If they collect after then, the payment is a banned payment and unless the landlord returns it within 28 days they can be dealt with in the same way as post-01 June 2019 landlords. Excessive security deposits and holding deposits are not affected. 

For usch more on landlord and tenant law, indulge yourself in my book Breaking Law.



Wednesday, 17 April 2019

Landlord Traps and Tenant Delights on Forfeiture: 2 New Cases

Landlord forfeits a long lease because of rent or service charge arrears and claims a possession order. The court makes the order but either fails to give the date by which possession must be granted and/or fails to give the tenant the option of paying the arrears and costs before the date expires and thereby earning relief from forfeiture. The order is deficient and an application for it to be set aside should succeed. The form of the order the court has to make is governed by section 13 of the County Courts Act 1984. The order cannot take effect in less than four weeks and it cannot be unconditional. That's the case of Golding v Martin [2019] EWCA Civ 446.

And here's another one a bit like the other one. Until any contractual right to a landlord to re-enter premises under a long lease has arisen the landlord cannot validly serve a notice under section 146 of the Law of Property Act 1925. In Toms v Rubbery [2019] EWCA Civ 128, the lease provided for a default notice to be served by the landlord and 14 days for the breach to be remedied. The landlord had pounced under section 146 before the expiration of a contractual notice. He pounced too soon and so his section 146 notice was invalid and the landlord was not entitled to possession on the strength of that notice.

These cases will not impact on the majority of cases which come before the courts where forfeiture is not involved. If you are a tenant and have been the recipient of an order which you may think is deficient, obtain professional advice before launching a court challenge to the order. 






Tuesday, 16 April 2019

MasterCard Claim by Walter Merricks: Appeal Result

For the best champagne, see your off-licence manager.

Walter Merricks has won  - which could mean you have won - and MasterCard has lost. The Court of Appeal today upheld the appeal against the refusal by the Competition Appeal Tribunal to allow a collective claim to be brought against MasterCard. It recognised that the Tribunal's decision would have frustrated the will of Parliament that there should be and effective route for consumers to be compensated when businesses broke competition law. 

The case now goes back to the Tribunal which will allow the claim to proceed.  We haven't arrived at an award of many millions yet - actually, £14n is being sought -  but we could be on our way.

Oh, just one thing. MasterCard's lawyers asked the Court of Appeal for permission to appeal to the Supreme Court but permission was refused. MasterCard can still seek permission from the Supreme Court and any request for permission is likely to be determined within the next few months. I'll keep you posted.