Can a poorly drafted lease cause trouble?

In a recently published case, Eastmoor LLP (the Landlord) against Keith Bulman (the Tenant) heard at Dumfries Sheriff Court, the Landlord asked the court to grant an order for recovery of possession of rented premises before the actual date on which the tenancy agreement was due to terminate.  Sheriff Jamieson, however, refused to grant the order sought deciding instead to dismiss the action due to a “poorly drafted” lease.

The Landlord told the Court that an AT6, being a notice that legal proceedings are going to commence, was served on the Tenant “intimating the tenancy would terminate on or before 17 February 2014.” The grounds for recovery specified in the AT6 all related to arrears of rent or persistent delays in payment of rent which grounds are detailed in 8, 11 and 12 of Schedule 5 of the Housing (Scotland) Act 1988. These grounds, unfortunately, in the actual assured tenancy agreement entered into between the Landlord and Tenant were only referred to by reference to the 1988 Act.

In Section 18(6) (b) of the Housing Scotland Act 1988 it quite clearly provides that the sheriff shall not make an order for possession of a house let on an assured tenancy unless the terms of the tenancy agreement make provision for it to be brought to an end on the ground in question.

The tenancy agreement in this case at Clause 1(g) states:

“If any of the grounds referred to in Grounds 8, 11, 12,13,14,15 or 16 of Schedule 5 of the Housing (Scotland) Act 1988 occur, the Landlord shall be entitled not only to recover from the tenant all loss or damage caused by the Tenant which they may hereby sustain and all rents due and which may become due and in addition may forthwith put an end to this lease and may commence proceedings for possession.”

The presiding Sheriff argued this clause was badly written:

  1. It mentions but does not specify what the grounds in fact are and
  2. It wrongly assigns to the Landlord the right to “forthwith” put the lease to an end if these grounds occur, but in fact the lease can only be terminated during its term on an order for possession granted by a Sheriff.

This case highlights the importance of drafting a lease very carefully to avoid the Landlord suffering consequences. With the Sheriff dismissing this case, the Landlord will now only be able to end the tenancy by giving a Notice to Quit at its term-not very satisfactory when the Tenant is already in arrears of rent.

We must emphasise that Landlords and Agents should always seek advice at an early stage in their negotiations to ensure that their leases comply with all legal requirements.

I have many years of experience drafting leases and if I can help, please contact me by email at rjl@mitchells-roberton.co.uk or by telephoning 0141 552 3422.

Clare’s Law

A scheme that gives people the right to know if their partner has a history of domestic violence will be piloted in Aberdeen and Ayrshire. It will start in late November and run for six months.

The Scottish Disclosure Scheme, also known as Clare’s Law, is named after Clare Wood, a mother of one, who was murdered five years ago by her ex-boyfriend George Appleton at her home in Salford. Unbeknown to Clare Mr Appleton  had a history of violence against women, including repeated harassment, threats and the kidnapping at knifepoint of one of his ex girlfriends.

The chosen areas and dates for the Scottish pilot  project  were announced on 18th August at the latest meeting of the multi-agency board set up to develop the scheme. This body includes representatives from Police Scotland, the Scottish Government, the Crown Office, ASSIST Advocacy Service and Scottish Women’s Aid. The areas were selected as they have a “wide and varied cross-section of the population” and include people who may benefit from the arrangement.

Police Scotland say the pilot schemes will be monitored and evaluated carefully and hopefully we will see a reduction of domestic abuse enabling the plan to be rolled out throughout Scotland next year. The scheme is already functioning in England and Wales.

Assistant Chief Constable Wayne Mawson said “I find it extremely encouraging that more and more victims of domestic abuse have the strength and confidence to report domestic abuse, however we are not complacent. I believe the introduction of the Disclosure Scheme for Domestic Abuse Scotland  will not only provide  a mechanism to share relevant information about a partner’s abusive past with their potential victims , it will give people at risk of domestic abuse the information to assist in making an informed decision on whether to continue in the relationship.”

Disclosures can be triggered by victims, families or a member of the public concerned about a person, as well as public authorities such as the police and social work. The decision to disclose will rest with a multi agency forum taking all parties’ rights and needs into account.

Justice Secretary Kenny MacAskill  said “It is only right that people in relationships  should have the opportunity to seek the facts about their partner’s background if, for example, they suspect their partner has a history of violent behaviour. Tackling domestic abuse is a top priority for the Scottish Government and we have provided record funding to tackle violence against women.”

Are You A Letting Agent Or A Private Landlord? If So This Is A Must Read For You!

On 1st August the Housing (Scotland) Act 2014 received Royal Assent.  This Act introduces a mandatory register and a “Letting Agent Code of Practice” to which all letting agents must adhere, as well as making certain changes affecting the private rented sector. The Scottish Government hopes such amendments will raise the standard of services provided by letting agents.

The size of the private rented sector in Scotland has been increasing over the past years. Traditionally this sector has provided a flexible housing option to prospective tenants like students or those relocating for employment reasons. However, following on from the financial downturn, the sector has also become a housing option for those seeking longer term accommodation with many potential first time buyers finding accessing home ownership difficult.

The profile of landlords in the private sector has also changed. Many investors bought properties during the housing boom on a “Buy to Let” basis and, more recently in light of the housing market  downturn, “reluctant landlords” unable to sell their properties have joined the sector.

Thus this recent legislation has been considered necessary to improve the condition of private sector homes and the standard of management in the sector. There are four significant changes brought about by the Act.

Firstly, a mandatory register has been brought into use. This requires that a letting agent must undergo a “fit and proper person” test before they can be registered and those who do not register may be subject to a six month’s prison term, a fine of up to £50,000 or indeed both.

Secondly, the Act introduces a “Letting Agent Code of Practice” to which all letting agents are bound. The First-Tier Tribunal (FTT) hopefully will now provide tenants and landlords with a specialist private rented sector tribunal. The Tribunal can now make a range of enforcement orders in cases where a letting agent has failed to comply with the Code of Practice. Failure to comply will be an offence and the agent may be subject to a fine and or ultimately removal from the Register.

Thirdly, some civil cases relating to the private rented sector, including repossession and non-repossession actions and House in Multiple Occupation (HMO) appeals, will now be heard by the FTT rather than the Sheriff Court. Time will tell if this switch allows cases to proceed more quickly.

Lastly, the Private Rented Housing Panel (PRHP) will continue to deal with breaches of the Repairing Standard. At the moment only tenants can bring a case to the PRHP but the 2014 Act now permits councils to make an application to the PRHP to decide whether the Repairing Standard has been maintained. The Act also amends the Repairing Standard in that all landlords now are required to fit carbon dioxide detectors and carry out electrical safety checks.

If you are a letting agent or a private landlord and need advice please contact Ross Leatham by email rjl@mitchells-roberton.co.uk or by telephone 0141 552 3422.

Please also see our article – A (Non-Comprehensive) To-Do-List For New Residential Landlords.

 

A “Taste Of The Tattoo”

20140807_130134 20140807_131826

It was a lovely sunny day yesterday and I was going for a walk at lunchtime with one of my colleagues. Our office is on the corner of George Square and North Hanover Street so on stepping out we noticed that there was a crowd in the Square. We had no idea what was going on so went to see. It was a mini version of the Edinburgh Tattoo right here in Glasgow. I was brought up in Edinburgh and in the 27 years I lived there I never once went to the Tattoo so this was my first experience of the spectacle and it was great. We were treated to performances by the Trinidad and Tobago Defence Force Steel Band, Highland dancers from down under, Maori warriors, Zulu dancers, an Indian cultural troupe and massed military pipe bands and drums.  The atmosphere was festive and I took some great photos. Our office certainly does have a prime location.

First- time Buyer Numbers Continue to Rise

The number of first time buyers in the UK has continued to rise and in the first six months of 2014 they reached their highest level since 2007 according to the Halifax.

The company’s bi- annual First-Time Buyer Review revealed there was around 144,500 first-time buyers in the first six months of 2014 an increase of 25% on the same period last year.

For the third successive year the number of first -time buyers, in the first half of the year has been over 100,000.

First-time buyer numbers also rose by more than any other group of home movers, increasing their share of the home purchase market from 44% in the first half of 2013 to 46% in the same period this year.

Almost two-thirds (60%) of all first –time buyer purchases in the first half of 2014 were above the £125,000 stamp duty threshold, which is up from 51% a year earlier.

“The resurgence in the number of first –time buyers getting on to the housing ladder has been buoyed by improving economic conditions, rising employment levels as well as government schemes such as Help to Buy, which have helped more first-time buyers on to the housing ladder,” explained Craig McKinlay, Mortgages Director at Halifax.

If you are a first-time buyer I can help. Please contact Alison Gourley on ajg@mitchells-roberton.co.uk or telephone me on 0141 552 3422

One Step Further to Obesity Being Considered a Disability

In the UK, the European Equal Treatment in Employment Directive is implemented by the Equality Act 2010. This Act prohibits discrimination on various prescribed grounds, including disability.

On the 24th July 2014 the Advocate General stated that obesity may fall within the definition of “disability” for the purposes of discrimination law where an employee is so overweight that “it plainly hinders participation in professional life.”

The Advocate General’s opinion follows on from the case of Karsten Kaltoft, a child-minder who was dismissed by the Danish state on the grounds of a decline in the number of children requiring care. Mr Kaltoft alleged his employment had been terminated due to his weight and that this was discriminatory. The Danish Court considering the case referred it to the European Court of Justice(ECJ) to clarify whether obesity can be considered a disability and therefore qualify for protection under the Equal Treatment in Employment Directive.

The Advocate General points out that whilst disability is not defined in the Directive past cases have referred to any physical, mental or psychological impairment that would inhibit fruitful participation of the person in their working life “on an equal basis with other workers.” It is the Advocate General’s view that severe obesity would create sufficient limitations to fit this definition. He stated that in his opinion only those with a BMI over 40 could qualify as disabled.

The Advocate General’s view is not binding on the Court of Justice but it would be surprising for the Court not to follow his opinion, although it may refine it in its own judgement. Following this judgement, the case will be returned to the Danish Courts who must make a decision in accordance with the EJC ruling. UK Tribunals will also be bound by the same ruling if a similar issue is raised.

For the moment UK employers just need to be aware that the issue of obesity is rapidly gaining profile.

Finally it is significant to note that the Advocate General also issued a reminder that it is “irrelevant” that being overweight may be considered “self inflicted.”  His point of view draws parallels with an injury suffered while engaging in a dangerous sport, which could be regarded as a disability despite its cause.

Will No2NP succeed in their Judicial Challenge or will every child in Scotland have a “Named Person” in 2016?

The Children and Young People (Scotland) Act 2014 received Royal Assent on 27 March 2014 and will be rolled out across the country in 2016.

The Act includes a provision to assign a “Named Person” (probably a teacher or health visitor) to every child / young person in Scotland under the age of 18.  The Named Person will have a duty to:

  • Advise, inform or support the child / young person and the parents of the child / young person
  • Help the child / young person or parents of the child / young person to access a service or support system
  • Raise a matter about a child / young person with a service provider or relevant authority.

This controversial Act is now subject to legal challenge by a campaign group, No to Named Persons (No2NP), which includes several hundred parents, academics and professionals concerned about the proposed imposition of a Named Person.

Of course, parents do not need to accept help or advice from the Named Person but the Named Person can act independently of parents in raising concerns they might have about a child / young person to outside agencies if they believe the child / young person to be at risk.

No2NP believe the role of parents will be diminished by the policy and that it constitutes unjustified interference with an individual’s rights under the European Convention on Human Rights.  Article 8 of the ECHR states that:

  • Everyone has the right to respect for his private and family life, his home and his correspondence.
  • There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals or for the protection of the rights and freedoms of others.

The position of the Scottish Government is that the legislation will stop vulnerable children  from slipping through the net  and will provide families in need with assistance that they might find difficult to obtain in other circumstances.

We will have to wait for the outcome of the review requested by No2NP , whether it will be successful remains to be seen, but certainly this legislation and challenge will have implications for the vast majority of families in Scotland.