Second home stamp duty exemption?

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Hi all, I’m considering selling my main residence and moving into a rental property I own. Given I will be selling my main residence, if I buy another within 3 years, will I be able to claim the stamp duty refund?

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An increase in illegal evictions is worrying the authorities

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With Britain at a critical stage in the COVID-19 pandemic, facing a very challenging winter, local housing officers are predicting that some landlords will increasingly take the law into their own hands. They are using forced evictions on their tenants at a time when hundreds of thousands of households are falling into rent arrears.

Couple this with a second wave of Covid, and the rapidly approaching end of the furlough scheme, and you have a “perfect storm” developing in the coming weeks and months.

Experts are claiming that illegal evictions are already up by 50 per cent since the start of the pandemic but warn that there is much more to come as desperation amongst some in the landlord communities, sets in.

According to The Independent’s reporting, one housing officer in London came across a case where a man was beaten unconscious and left homeless, sleeping in a park during the pandemic, after he was only three days late with his rent. More commonly, the report says, locks are simply changed and a tenants’ possessions removed or stolen.

Landlords know that to evict a tenant, now that the eviction restrictions have been lifted, they must follow the legal process: serve a notice which in normal times is 2 months (Section 21), but is now because of Covid, 6 months.

Courts have a huge backlog of cases, and in any case once a landlord is granted a possession order, often there is another long wait for the court bailiffs to evict – under the present circumstances landlords faced with a tenant who is determined to stay-put could have a wait of over 12 months.

Solicitor Giles Peaker is accusing the government of failing to deal with this emerging problem by confronting the issue of increasing rent arrears. Peaker says:

“There are a number of problems with what the government has done. They haven’t dealt with the underlying issue of rent arrears at all. They’ve effectively punted the problem further down the line.”

Although judges are said to have some leeway to take into account the positions of the tenant and the landlord during Covid, Peaker believes the courts should be given further discretion to override the mandatory requirements of the law and decide whether a landlord can take possession when the tenant is in arrears. Currently, the judges hands are tied.

One tenant relations officer (TRO) Mr Reeve-Lewis, working for Safer Renting, who are working with local authorities in support of tenants facing harassment, is reported as saying he has evidence that some landlords who “wouldn’t generally be in the criminal end of the market are resorting to taking a chance out of frustration with tenants unable to pay their rent.”

Unlawful houses in multiple occupancy (HMOs) are also cited, besides rent arrears, as another major source of illegal tenant evictions. These are the sort of rogue landlords operating these already illegal establishments to be very likely to resort to an illegal eviction, with little by way of a come-back when the occupant could be living there illegally in any case.

There’s a significant minority in large cities, criminal landlords making handsome returns by cramming tenants into overcrowded HMOs. In some cases houses have in the teens of tenants sharing cramped an unsafe accommodation. That in itself is a major problem that local authorities struggle to control.

Enforcement is difficult because these landlords a “fleet of foot” and when they realise they have been discovered operating a home without a HMO licence, they will forcible evict tenants en-mass to avoid prosecution.

TRO Mr Reeve-Lewis is quoted by The Independent as saying that one local authority raid recently discovered a landlord making £5,300 a month, compared to the £1,600 he would have made if he had been renting the house legally.

“There’s absolutely no way tenants in these houses can do any form of social distancing. It’s just not possible,” said Reeve-Lewis.

Experts in the industry are blaming the Right-to-Rent checks, checks on immigrates – process that involves landlords in making specific checks on all new tenants to ascertain their right to reside in the country – for forcing some tenants with dubious residency status into the hands of criminal landlords.

These types landlord want tenants with no official ties, no paperwork, no claims on housing benefit, no written tenancy agreements and all rents paid in cash, taken without receipts, so there’s no paper trail.

Despite the prevalence of this growing problem, and despite new laws and increased fines, especially in the major cities, local authorities are still struggling to cope with these problems. Tenants under the radar are suffering, living in cramped and dangerous conditions and even violence, but often nothing is being done to help them.

Safer Renting claim that they have evidence of almost 1,000 illegal evictions in London over the past 15 months, a rise of almost 50 per cent since March when lockdown started.

Although the penalties for illegal eviction are high, those prosecuted and found guilty of this crime – and it is a criminal offence not a civil one – face an unlimited fine and a two-year prison sentence.

However, it would be a rare event that this outcome is achieved, most get off with low level fines and prison sentences are very rare indeed. This situation frustrates housing officers no end.

Private renting for tenants: evictions

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Essential reading! NRLA launches boiled-down guide to the evictions restrictions

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Governments have an unerring knack for making relatively simple situations complex, and the current evictions ban is no exception.

So landlords can be forgiven if they feel bewildered by the plethora of regulations and new legislation that have been used to introduce and extend the ongoing evictions restrictions.

To help people navigate this tangle, the NRLA has published a guide that enables landlords to understand the changes in a reasonably digestible form. And it is backed by many of the sector’s leading players including the Property Redress Scheme.

It is also designed to help landlords end tenancies responsibly.

For the legislation this includes the extension to notice periods, requirements for possession claims issues before or after August 3rd, the re-opening of the courts and reactivation notices.

At court level, the guide covers Covid case marking, how the prioritisation process works, what the new Review and Substantive hearings involve and how accelerated claims (i.e. Section 21 notices) will be dealt with.

“The far reaching effects of the global health crisis will leave many facing financial insecurity for the first time, yet it is important to stress there is no reason why the landlord and renter relationship should not remain strong and constructive,” says Ben Beadle, Chief Executive of the NRLA.

“It is incumbent therefore that where issues arise, both tenants and landlords engage and seek to resolve issues outside of litigation.”

Click here to download the guide.

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BREAKING: Housing minister rejects calls from MPs to extend eviction ban

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Housing minister Christopher Pincher has rejected calls from MPs to extend the evictions ban and give tenants more financial support.  

Responding to urgent Parliamentary questions kicked off by Tim Farron, the Lib Dem spokesperson for Housing, Communities and Local Government, Pincher said the Government’s measures struck the right balance between supporting landlords to evict in the most serious cases while protecting those who had fallen behind in rent payments through no fault of their own.

Farron urged the Government to further extend the ban for six months, amend Section 8 evictions, repeal Section 21 evictions and provide a package of financial support for those in rent arrears.

He told the House: “The virus should not bring people to their knees and dump them on the street.”

Hardship loans

Other MPs expressed fears that more action was needed amid a rise in Covid cases. Conservative MP Craig Whittaker suggested that with landlords facing severe hardship, there should be an interest-free hardship loan for tenants, similar to those in Scotland and Wales.

Others suggested more funding for local authorities to house those evicted and an increase in the local housing allowance rate.

Pincher said the Government would keep all the policies under review, and added: “We’re prepared to take further measures where they’re needed to protect landlords and tenants alike.”

Pincher said the Government had taken “unprecedented measures” to protect renters but that it was right that landlords and tenants now had access to justice, particularly landlords dealing with anti-social behaviour and tenants who hadn’t been paying rent since before the pandemic.

He also reassured MPs that there would be no evictions in local lockdown areas and added that it would repeal Section 21, “at the appropriate time – when there’s a sensible and stable economic and social terrain to do it”.

Read more about the evictions ban ending.

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EVICTIONS LATEST: Landlords face huge delays as they wait for non-priority hearings, warns expert

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Evictions expert and TV star Paul Shamplina says landlords must wake up to the reality of the clogged courts system as possessions and other housing cases re-start following the end of the stay on court hearings.

Shamplina has published an anonymised letter on LinkedIn from a court notifying one of his clients of their trial date, after they decided to pursue the guarantor of their tenant for rent arrears debt. The guarantor is defending the case.

The landlord in question already has possession of the property.
But Shamplina and his client were shocked to discover that the trial date set by Edmonton County Court in London is for 23^rd October 2021 or in 15 months’ time.

“Finally, the courts have officially reopened after six months of suspension, but it’s clear that for so-called non-priority cases such as these, landlords are facing extremely long waits,” says Shamplina.

The Master of Rolls recently confirmed that the courts will be focusing on a narrow set of priorities when dealing with possession hearings including those involving anti-social behaviour, domestic violence and ‘extreme arrears’ of more than 12 months.

Samuel Lane, a solicitor at Irwin Mitchell says the extra work being asked of courts – including both ‘Covid grading’ hearing applications and setting a review date to give both sides time to complete mediation – appears to already be “creating further work for an already over-worked system,” he says.

Shamplina says: “We suspect there are approximately 55,000-60,000 possession cases in the court system now, although 30,000 of those involve social rather than private rented sector tenancies.

“Let’s wait and see how these court backlogs are dealt with, nevertheless I think these delays will unprecedented, but I hope for many landlords’ sake I’m wrong.”

More information about evictions from Landlord Action.

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Legal test Case – Pease v Carter 2020 – validity of notices with errors

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Is it right that a minor error in a notice should invalidate it, even if a reasonable recipient, by using common sense, is easily able to interpret the intended meaning? This was the question posed in an appeal court hearing in and eviction case, Pease v Carter March 2020.

These guidelines apply primarily to England. Other regions and jurisdictions are similar but there may be important differences and this is becoming increasingly so in the UK with devolution. This is not a definitive interpretation of the law, every case is different and only a court can decide. Do not act on or refrain from acting on this information without seeking expert advice.

The case revolves around a notice service by a landlord on his tenant under section 8 of the Housing Act 1988. The notice stated that court proceeding were to begin after 26^th November 2017, when in fact it should have read after 20^th November 2018 – the landlord simply had the wrong year.

At the original possession hearing the Judge held that this was an obvious typographical error, and that a reasonable recipient of the notice would have realised that the intended date was 26 November 2018. However, the judge cited another case, Fernandez v McDonald 2003, which implied that the “reasonable recipient test” did not apply to section 8 notices and therefore the notice was invalid.

The landlord appealed and the Court of Appeal held that when considering unilateral notices the starting point is the 1997 Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd test case, a well-established test of the “the reasonable recipient”.

The Appeal Court held that:

A statutory notice is to be interpreted in accordance with Mannai v Eagle Star, that is to say, as it would be understood by a reasonable recipient reading it in context. If a reasonable recipient would appreciate that the notice contained an error, for example as to date, and would appreciate what meaning the notice was intended to convey, then that is how the notice is to be interpreted.

It remains necessary to consider whether, so interpreted, the notice complies with the relevant statutory requirements. This involves considering the purpose of those requirements. Even if a notice, properly interpreted, does not precisely comply with the statutory requirements, it may be possible to conclude that it is “substantially to the same effect” as a prescribed form if it nevertheless fulfils the statutory purpose. This is so even if the error relates to information inserted into or omitted from the form, and not to wording used instead of the prescribed language.

It therefore followed, according to the Appeal Court, that the “reasonable recipient test” does in fact apply to section 8 notices and that Fernandez v McDonald is not the authority where the statutory requirements are clear and precise, are not difficult for the party serving the notice to comply with, and where it does not have particularly serious consequences for that party if not complied with.

It was held that a reasonable recipient in this case would conclude that the person who typed the notice had mistakenly typed a “7” rather than an “8”. Having mentally corrected this error, the reasonable recipient would conclude that 26 November 2018 made sense as being the intended date and would therefore have no reason to think that the day or month were also in error.

Furthermore, in this case the landlord had included with the notice a covering letter which stated “Proceedings will not be issued before 26 November 2018 but will be issued within 12 months of service of the notice.” This the judge said should have dispelled any doubt in the tenants’ minds as to the intended date.

Key points to take away from this case:

• Pay particular attention to the details of your legal notices, dates and statutory wording
• It’s a good idea to include a covering letter with notices spelling out your intentions
• The “reasonable recipient test” on the reading of notices “in context” does apply to tenancy notices.
• However, notices must substantially if not exactly meet statutory requirements – failure to meet the precise statutory requirements will not necessarily invalidate the notice if it is ‘substantially to the same effect’ and fulfils the statutory purpose, but it’s better to get it right.

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Fake landlords on the rise as criminals spot an online opportunity during Covid

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Scammers are taking advantage of the increase in virtual viewings to con would-be renters into paying for non-existent properties.

North Yorkshire police report that they’re dealing with growing complaints from people who’ve handed over advance payments for rent on flats and houses advertised on Facebook.

Fake landlords use the Covid-19 pandemic as an excuse for prospective tenants being unable to view the property in person and instead send photos and promise to send keys in the post once they agree to move in.

However, the properties never materialise as the ‘landlord’ vanishes once payments have been made, the keys never arrive and all contact is cut off.

In fact, renters around the country are relying more on virtual viewings, according to the latest Goodlord rental sector review, which found that 32% of renters would make an offer on a property they had only viewed virtually.

Scammers

North Yorkshire police financial investigator, Kevin Ross, says while this type of fraud isn’t new, the pandemic has given scammers an excuse to hide behind.

He adds: “This is a tactic we saw used a few years ago but then it seems to have had a resurgence with scammers finding yet another way to take advantage of the current situation with Covid-19.

“Not only has it already resulted in victims losing hundreds of pounds but it’s also meant in some cases they have been left with nowhere to live, having given notice on their current properties.”

These sorts of scams could encourage the Government to seriously consider proposals for landlord registration in England – something that’s already in place in Northern Ireland, Wales and Scotland.

Read more about scammers.

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Hackney adds a £50k Social Housing contribution from developers!

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In discussion with a planner, I was notified that the latest local plan had been recently approved. The plan includes a charge of £50k for every new dwelling approved by the London Borough of Hackney.

This is in addition to the Community Infrastructure Levy and a section 106 agreement.

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Rishi Sunak takes a bow

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In a Hm Treasury press release Rishi Sunak is taking credit for house sales rising 15.6% in August following the introduction of the stamp duty holiday. However, Rishi does not point out that HMRC annual sales figures are down 23.9% and a great deal of the August increase can be account for by pent-up demand releasing since lockdown.

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