LATEST: Legal team in landmark gas safety eviction case say appeal to Supreme Court will follow

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Yesterday we reported on the contentious Trecarrell House Limited v Patricia Rouncefield judgement in the Court of Appeal, which much to the delight of our readers found in favour of the landlord.

After months of legal wrangling, the three judges agreed that Trecarrell House was within its rights to serve a Section 21 notice on Ms Rouncefield because the property had a gas safety certificate – even though she hadn’t been given a copy at the beginning of her tenancy.

The battle is not over. The legal team at Oliver Fisher representing Ms Rouncefield have told LandlordZONE that they intend to seek permission to appeal to the Supreme Court.

But what to do the two legal teams on either side of the bench think of the judgement, and is its as clear cut as landlords would like to think?

Landmark Chambers – Trecarrell House

Landmark Chambers says it’s good news for landlords and that, given the huge number of gas safety inspections missed as a result of the current crisis, it’s a relief that there is now clarity on whether a Section 21 claim is valid as long as the certificate has been provided beforehand.

This is regardless of whether an annual inspection has taken place each year, and just as long as it has been done before notice is served.

However, practice manager Justin Bates asks: “What is the position if the landlord has not done a gas safety check – and so does not have a gas safety certificate – for the period before the tenant went into occupation. How, if at all, can that be remedied?”

He adds: “There is recognition in the judgment that the duty to do an annual safety inspection is not a prescribed requirement for the purposes of [a Section 21].

“There is, however, something rather unattractive about a landlord seeking possession in circumstances where he has unlawfully failed to do a check (and thus provide a certificate) and whether that amounts to (impermissibly) relying on your own wrongdoing.”

Bates tells LandlordZONE: “The earlier county court decision in Caridon Property v Monty Schooltz was made by one of the most respected landlord and tenant lawyers of his generation, HHJ Luba QC, so the argument for the tenant is clearly one that has some support.

“It’s also important enough for the Supreme Court to want to look at it, after all, it does potentially affect several million people.”

Oliver Fisher – Rouncefield

The legal team representing Ms Rouncefield has some unanswered questions, according to Billy Clerkin, paralegal at Oliver Fisher, who says the position is still unclear as to whether a gas safety check that has been done out of time is valid.

He adds: “If the case is that only the [gas safety certificate] needing to be given is the one prior to occupation and the most recent check carried out during occupation, then in a lengthy AST this could leave a number of years in the middle whereby a check does not need to be done for the purpose of a Section 21. 

“This seems wrong to me when considering the very low risk of an HSE prosecution, which appear to be in the tens per year with regard to the Gas Safety Regulations as a whole.”  

©1999 – Present | Parkmatic Publications Ltd. All rights reserved | LandlordZONE® – LATEST: Legal team in landmark gas safety eviction case say appeal to Supreme Court will follow | LandlordZONE.

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Can important documents like tenancy contracts be signed electronically?

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In these days of lock-down it would be very convenient and timely to accept documents relating to tenancies and other business contracts that have been signed electronically and transmitted electronically, rather than using the usual face-to-face signing and exchange using pen and ink.

But just how legal are these e-signatures on a document, and more importantly how would electronic signatures stand-up in court? Would you be prepared to accept a tenancy agreement attached to an email with an electronic (typed) signature on it?

This article applies primarily to English law. Although tenancy laws are similar in other jurisdictions, there may be significant differences. Always seek professional advice before making or not making important decisions.

Yes, says the law, electronic signatures are perfectly legal because today we have something called the Electronic Communications Act 2000 (and eIDAS in the European Union, NIST-DSS in the USA or ZertES in Switzerland)., all of which clarify the situation somewhat. Even so, many people would still be quite apprehensive about accepting documents signed in this way, especially if they are from the older generation – the younger generations of course are far more accepting of new technology and instant communications via email and text.

To quote directly from the EC Act: Electronic signatures and related certificates.

(1) In any legal proceedings—

(a) an electronic signature incorporated into or logically associated with a particular electronic communication or particular electronic data, and

(b) the certification by any person of such a signature, shall each be admissible in evidence in relation to any question as to the authenticity of the communication or data or as to the integrity of the communication or data.

(2) For the purposes of this section an electronic signature is so much of anything in electronic form as—

(a) is incorporated into or otherwise logically associated with any electronic communication or electronic data; and

(b) purports to be used by the individual creating it to sign.

(3) For the purposes of this section an electronic signature incorporated into or associated with a particular electronic communication or particular electronic data is certified by any person if that person (whether before or after the making of the communication) has made a statement confirming that—

(a) the signature,

(b) a means of producing, communicating or verifying the signature, or

(c) a procedure applied to the signature, is (either alone or in combination with other factors) a valid means of signing.

Quite clearly the electronic signature has legal standing providing certain other requirements are met, most particularly that a confirmation statement is made, the parties are identified and the document is date-stamped, which it would be in any case if accompanied by an e-mail audit trail as evidence of receipt.

Ironically, the accommodating audit trail could give more certainty to the signature and the intentions of the parties than would a traditional pen and ink signature. That’s because a tenants can and sometimes do deny they have signed a document, and faced with this, unless other supporting evidence is available, such as a witness statement, any judge would err on the side of caution and take the tenant’s word.

Although there are third party signature services such as those offered by Adobe, which act as a sort of independent escrow service, this is not necessary for one offs, and it would be usual for landlords to send documents attached to an email on which the tenant/s can either upload a facsimile signature, or simply type one.

The key to this is that common sense is required. So long as the process used generates a clear audit trail showing the intentions of the parties, based on the electronic communications between them leading up to the agreement signing, and that dates are clearly stated – it’s advisable to type out a date in full so that, even thought the email is electronically dated, the date on the documents cannot be doctored. For example, instead of 19/06/20 write The 19^th of June, 2020

The exception to all this is where a document needs a witness. For example, tenancies of more than three years and guarantor agreements must be prepared and signed as a deed with a witness statement and signature. Witness statements therefore cannot be signed electronically.

©1999 – Present | Parkmatic Publications Ltd. All rights reserved | LandlordZONE® – Can important documents like tenancy contracts be signed electronically? | LandlordZONE.

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Welsh housing market to partially re-open on Monday

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The Welsh government has revealed that it is to relax the housing market lockdown.

In a statement released at 12.30pm today First Minister Mark Drakeford has said that the Welsh housing market can re-start partially on Monday.

Housing viewings can now take place in vacant properties as can home moves where a sale has been agreed but not yet completed.

The updated does not mention rented properties but a Welsh government spokesperson has told LandlordZONE that clarification on this point will be made when the guidance is update later today, but that they ‘assume it will cover the private rental sector’ as well.

We will update our readers on this as soon as it become clear and update this story. Watch this space!

The announcement as it stands is a much more cautious approach than the other parts of the UK. England, Scotland and NI have all moved directly to a full re-opening of their housing markets.

Today’s announcement has been made following a fourth statutory review of the coronavirus regulations by Welsh Ministers, using the latest scientific and medical evidence from the UK Scientific Advisory Group for Emergencies (SAGE), the Welsh Government’s Technical Advisory Cell (TAC) and the advice from the Chief Medical Officer for Wales.

In addition to the housing announcement, all non-essential shops in Wales will be able to re-open and is part of a stepped relaxation of the Welsh lockdown that will announced every Monday for the next three weeks.

First Minister Mark Drakeford said: “The threat of coronavirus hasn’t gone away but thanks to the efforts we have all made over the last few months, the number of people contracting coronavirus each day in Wales is falling, so too is the risk of meeting somebody with virus.

“Given the progress we have made, we are able to take some additional cautious steps to further unlock our society and economy. This includes more retailers being able re-open their businesses, as long as they take measures to minimise the risk to their staff and to the customers who visit their stores.”

Industry reaction

“This is very positive news for the Welsh housing market and whilst safety is a paramount consideration, a sensible return to business is the right approach to ensure the sales and rental sector can start to recover,” says Sean Hoooker of MyDeposits.

“This said property professionals should follow the Welsh Government Guidance very carefully and don’t take unnecessary risks with customers and staff. Their well-being comes first but also this will avoid complaints and disputes in the future”

©1999 – Present | Parkmatic Publications Ltd. All rights reserved | LandlordZONE® – Welsh housing market to partially re-open on Monday | LandlordZONE.

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EXCLUSIVE: Ministry of housing officials roll back guidance on electrical safety

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Officials at the Ministry of Communities and Local Government have pulled the latest update to the Electrical Safety Standards after LandlordZONE pointed out that discrepancies in its wording were causing confusion among landlords and the wider industry.

Yesterday MHCLG updated its guidance on the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 which suggested that landlords must ensure that national standards for electrical safety are met within their properties by June 1st despite originally stating that they had a month after that date to comply.

This could have meant that millions of landlords were suddenly not compliant with the regulations and who could in theory be issued with a remedial notice by their local council.

An MHCLG spokesperson has now clarified that the update published yesterday has indeed been causing more problems that it was solving and that, therefore, officials are to roll back the new guidance and re-publish the original version.

“The guidance is complicated and is intended for both landlords, agents and local authorities and therefore it needs to be clearer so we’re going to go back to the original and work on making it clearer,” she said. “We are grateful to LandlordZONE for highlighting this.”

Sean Hooker of MyDeposits, says: “The sudden and unannounced update yesterday has caused problems for organisations like MyDeposits who have been briefing their clients about the Electrical Safety Standards, and when they should be ready to comply. It’s good to hear that MHCLG is going to revisit their update.”

©1999 – Present | Parkmatic Publications Ltd. All rights reserved | LandlordZONE® – EXCLUSIVE: Ministry of housing officials roll back guidance on electrical safety | LandlordZONE.

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The Future for HMOs post Coronavirus

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During the current pandemic I am now thinking about the after affects on the rental market when it ends.

In particular what everyone thinks will happen to the demand for and the ongoing lettability of HMOs considering they are shared living and whatever the new social norms will be?

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New tech allows landlords to charge for pets without breaking fees ban rules

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A new tech platform lets landlords capitalise on the increase in tenants looking to rent with a pet, while keeping on the rights side of the law.

PlanetRent generates fully compliant contracts in minutes, which can include a standardised pet-friendly clause and a fixed, transparent monthly charge to help cover the costs of keeping a pet in a rented home. It say the typical extra rent charged is £50 a month or £600 a year.

The tenant fees ban outlawed the use of fees charged to tenants who want to live with their pets, but it does allow landlords to charge extra rent for a dog or cat without being considered a ‘fee’.

While 44% of people in the UK are pet-owners, only 7% of buy-to-let investors advertise their property as suitable for pets because many worry about maintenance costs or the insurance implications of housing tenants with pets. 

Planet Rent believes there could be even more potential renters looking for properties to share with a furry friend, as the pandemic has seen an increase in the number of people looking for pets as companions, with dog breeders especially reporting a massive increase in interest. The Kennel Club group recently reported a 180% rise in inquiries over the last year.

Unless buy-to-let landlords change their approach to pet-friendly rentals, they risk losing customers, warns Mary-Anne Bowring, founder of PlanetRent.co.uk.

She says: “While pets are typically associated with higher maintenance costs, landlords risk fishing from an ever-smaller pond by refusing to accommodate renters with pets, especially as the big institutional and corporate landlords entering Britain’s rental market are typically pet-friendly in their developments.”

PlanetRent allows documents to be accessed virtually and enables contracts to be generated in seconds so they can be e-signed by landlords, tenants and agents.

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Who pays what? I’m out of pocket!

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I have a long standing Housing Benefits tenant who I always have had direct payment for as there is a history of drink, drugs and spells in HMP. I received direct payment (by HB ) as normal and expected for period 13 April- 19th May.

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