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The Residential Property Tribunal Service

publication date: Aug 9, 2007
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The Residential Property Tribunal Service has the responsibility for hearing appeals and applications relating to a range of issues and topics under the 2004 Housing Act. In order to help ARLA members better understand and interpret relevant aspects of the Act Adrian Turner, ARLA Chief Executive will regularly be providing summaries of a selection of the decisions made on RPTS cases. The first two are reported here.

Appeal by Mr David Rashidi against a refusal by LB Islington to grant a Temporary Exemption Notice (TEN) in respect of 128 Farringdon Road, London EC1R 3AP

On 23 April 2007 the Residential Property Tribunal allowed an appeal by Mr David Rashidi, the manager of the above premises, against a refusal by the London Borough of Islington to grant a Temporary Exemption Notice (TEN) [from applying for an HMO licence].

The four-storey house, with four floors including basement accommodation was deemed to be an HMO but the appellant admitted he had not applied for a licence. The rental charged was £3,500 per month, so it was not an assured shorthold tenancy under the Housing Act 1988. In a letter to the Council dated 10 January 2007 Mr Rashidi asked for the TEN and indicated he would be seeking permission to convert the property. This he did in a letter dated 2 February 2007. Mr Rashidi also wrote to the tenants asking them to vacate the house on 23 May 2007, the end of the tenancy. He submitted at the hearing that on 23 May the property would no longer be an HMO and licensing would not be needed – and anyway the tenants had already started leaving.

The Council’s refusal to grant a TEN was based on the fact that the property had been operating as an HMO since 6 April 2006 and that consideration of planning permission and revoking the tenancy contracts could not be achieved within a 3 month TEN period. They were also concerned Mr Rashidi had failed to apply for a licence and delayed submitting the application for TEN to buy time. They believed this would send the wrong message to landlords who might exploit the Act to gain time.

In quashing LB Islington’s decision, the tribunal directed the council to serve a Temporary Exemption Notice with effect from 23 April for 3 months, to convert the property into 2 self-contained flats and an extension to the rear - and to obtain vacant possession. They were satisfied that the rent put the property outside the Housing Act 1988, that it would be vacant within the 3 month TEN period and that Mr Rashidi might be able to offer alternative accommodation to the tenants.

Appeal by Peterborough City Council to the Residential Property Tribunal Seeking Authority to Serve an Interim Empty Dwelling Management Order (EDMO) on 7 Brewster Avenue, Peterborough, PE2 9PN

Peterborough City Council applied to the Tribunal to serve an interim EDMO on the above property in accordance with Section 133 of the Housing Act 2004. A paper hearing was held. In written submissions to the Tribunal the respondent, Mr Michael Brewster, said he wanted to explain various aspects about the property, including personal problems with it. However he failed to give these details. The Tribunal therefore considered the facts set out in the appellant’s statement from Ms Hodges, Senior Private Sector Housing Enforcement Officer at Peterborough. The Council believed the property had been unoccupied for more than 7 years. The respondent denied this, saying he lives at the property during the summer but moves to 20 Brewster Avenue during the winter.

Council tax records confirmed this and the Tribunal concluded the property had been wholly unoccupied for more than 6 months but not for 7 years. The Tribunal noted that letters had been exchanged between the Council and Mr Brewster highlighting concerns about the property and offering solutions. The Council’s preferred option was to offer a grant under the leasing scheme for 50% of the remedial work needed in return for Mr Brewster having use of the property for social housing for 5 years. When the Council did not hear from Mr Brewster they wrote to him again, in January 2007, saying they would take this action.

Authority to serve an interim EDMO was granted to the Council with variations to the form filed with the Tribunal.


Going Smokefree
by PainSmith Solicitors

It cannot have escaped your notice that since 1st July it has been illegal to smoke in public places in England. This means that any place with public access or where people work must be non-smoking.

While in most cases private residences will not fall into this bracket certain types of property usage will require action. Communal stairwells and corridors in flats and HMO’s will have to be smokefree if they are open to the public or if someone, such as a cleaner, works there. This will mean that many block managing agents will need to observe the law in regard to blocks of flats they are responsible for managing.

Smokefree premises will have to display appropriate signage. These signs will have to be of at least A5 size and display the international no-smoking symbol with a diameter of at least 70mm. The words “No Smoking. It is against the law to smoke in these premises” will also need to be on the sign.

An example of a compliant sign (although much reduced in size) is shown here. The signs can be modified by changing the words “these premises” to a more appropriate description of the premises which are referred to. So they could be amended to refer to “this building” or “these flats” for example. The signs must be displayed at every entrance to smokefree premises.

More information can be found on the Smokefree England website at www.smokefreeengland.co.uk.

Dr David Smith is a trainee solicitor with PainSmith Solicitors, a niche practice specialising in residential landlord and tenant law. He can be contacted on 01420565310 or by email at david@painsmith.co.uk

Scottish Legal issues
by Kerr Stirling Honorary Solicitors Since receiving

Royal Assent in January 2006, the provisions of the Housing (Scotland) Act 2006 (the Act) are gradually being brought into effect. One area of the Act that has the potential to have a significant impact on the residential letting sector is contained in Chapter 4, and due to come into effect on the 3 September 2007.

These new provisions affect all tenancies “let for human habitation” and, although there are exclusions, properties let under Assured and therefore Short Assured tenancies are covered. Chapter 4 of the Act sets out a new “repairing standard” and, for the first time, a mechanism to enforce this standard to ensure that essential repairs to private rented properties are carried out.

Enforcement will follow application by the tenant, after default by the landlord, to the Private Rented Housing Committee (PRHC). How applications to the PRHC will be dealt with is beyond the scope of this article, but suffice to say that, the PRHC will have the teeth to ensure that the new standard is enforced.

To put the matter in context, the existing legal standards fix the repairing obligations for landlords at a relatively low level. As long as the property is wind and water tight and fit for human habitation, there is no obligation for the landlord (unless contractual) to carry out repairs. Those in the letting sector will be aware that disputes often arise regarding what this basic level of repair is and what is a “tolerable standard”. Case law has tended to focus on issues such as dampness affecting the property and so on.

The provisions are contained in Section 13 of Chapter 4 of the Act, which imposes a much higher repairing obligation on landlords.

As of 3 September 2007 a leased property will only meet the repairing standard if:-
• It is wind and watertight and in all other respects fit for human habitation.
• The structure and exterior of the house are in a reasonable state of repair and working properly.
• The installation for supply of water, gas, electricity, sanitation, heating, and water heating are in a reasonable state of repair and working properly (as long as the landlord has some form of responsibility to maintain these installations whether directly or indirectly).
• Furnishings supplied by the landlord under the tenancy can be used safely and for the purpose they were designed. • That there is satisfactory provision for fire/smoke detectors.

In assessing whether something will meet the repairing standard, regard will be given to the extent to which any defect falls short of any relevant building regulations. However, consideration will be given to the age and character of the property.

The obligation to ensure that the property complies with this new standard is the landlord’s. Not only will the property have to comply with this new standard at the start of the tenancy, but also throughout term of the tenancy. Landlords will be expected to carry out a pre tenancy inspection to identify any work that needs to be done and notify the tenant of any such work needed. Landlords are also expected to provide written details before or at the start of the tenancy to the tenant of these new obligations.

Even though the repairing standards apply throughout the tenancy, a landlord is only expected to deal with repairs if notified by the tenant or that they have become otherwise aware of.

Landlords will be given a “reasonable time” to resolve any defects and if they do so, there will be no breach of their duty under the Act and therefore no basis for enforcement or reference to the PRHC. What will be a “reasonable time” is not defined, albeit the nature of the required work will affect the time allowed to carry out any repairs. Reference to previous case law may also assist, but it is fair to say that landlords should carry out repairs as early as possible to try and ensure compliance with the new obligations. It would also be advisable to keep the tenant fully appraised throughout of the steps taken to remedy any defects. This should minimise the potential for disputes and therefore reference to the PRHC.

It is also worthy of note that, where there are other proprietors in a building, landlords may still be expected to carry out common repairs within a reasonable time. Accordingly, landlords cannot rely on non co-operation of other proprietors in order to avoid falling foul of these new obligations. Ultimately, landlords may have to proceed with common repairs themselves to ensure comply with these new obligations and thereafter seek reimbursement from the other co-proprietors.

Although there is a prohibition on contracting out of the new obligations (except with leave of the Sheriff and with agreement of the tenant), there are excluded repairs.

These are:-
• If there is a term in the lease that the work is to be carried out by the tenant and only where the lease is for no less than 3 years.
• If the tenant fails to look after property properly and causes the disrepair and is therefore liable to carry out the repairs.
• If the tenant would normally be responsible for such repairs.

Notwithstanding what has been said, there are a few crumbs of comfort for landlords. If the property is totally destroyed by, for example fire, there is no obligation on the landlord to rebuild the property for the tenant.

Likewise, if the landlord is unable to carry out necessary repairs because they do not have the necessary rights, for example access, as long as they have taken “reasonable steps” to acquire these rights, they will not be in breach of their obligations under the Act.

Whilst these new duties impose much higher obligations on landlords, they are probably not much out of line with the current practise of most responsible landlords and letting agents. Indeed, the new system may even operate to the landlords’ advantage. Currently, we have the unsatisfactory position whereby tenants decide unilaterally to retain rent pending completion of repairs, even where not necessarily justified, leaving the landlord the expensive option of raising court proceedings to recover unpaid rent (rarely do tenants put the rent to one side). The new system should introduce an element of certainty. If the matter eventually does end up before the PRHC, they will act as ultimate arbiters. Accordingly, the innocent should have relatively little to fear.