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 Law Matters Blog - The Essential Guide to the Law you need to know!

Welcome to the Law Matters blog!

This blog is written by the solicitors at Hadens a local firm with offices in both Darlaston and Walsall. It’s designed to provide you with ‘need to know’ guides about the areas of law that might affect you as a parent or carer. This might be anything from changes in the law on childcare services to answering some frequently asked questions about housing problems such as disrepair or overcrowding.

HOUSING LAW
Questions and Answers

As a solicitor working in a town which has a considerable number of Local Authority, Housing Association and Private Sector tenants, I am approached by a lot of anxious people who have a wide variety of housing related problems.  While the people are always different, their problems generally fall into one of a few categories. 

Sadly, all too these people have struggled on, trying to deal with their problems on their own, because they were not aware that they qualified for Legal Aid or, if they did not qualify for Legal Aid, that there were other ways of funding legal action.  That could have saved them a lot of time and stress.

In the hope of saving others a lot of time, stress and heartache, I’ve set out below the most frequently asked questions together with a brief answer to each of these. 

1. How can I afford a Solicitor?

Court action (also known as litigation) can be expensive and this deters a lot of people from contacting a solicitor.  However, there are a number of ways that you can fund Court action which then allows either for defer payment of legal fees or, in some cases, avoids the need to have to pay those fees at all. 

People on Income Support, Job Seekers Allowance or Guarantee State Pension Credit are automatically entitled to apply for Public Funding (Legal Aid).  Those who work but have low incomes may also apply for Legal Aid.  Legal Aid is a loan, not a gift and you will not automatically qualify for funding.  You have to prove to the Legal Services Commission that you have a good case before they will help you.  However, the simple fact is that unless you ask, you’ll never know. 

Even if you can’t get Legal Aid it does not mean that you can’t employ a solicitor.  If you have buildings insurance, home contents insurance, car insurance or any other type of insurance which has legal expenses cover then you should call your insurer and see if they will fund your claim.  If your insurer will fund your claims then you can fight your case safe in the knowledge that your insurer will meet your legal fees.

If you can’t get legal aid and you are not insured, you may still be able to enter into a Conditional Fee Agreement (CFA) which you would know more commonly as a “no win, no fee” agreement.  You would need to discuss the specifics of your case with a solicitor before it would be possible to say whether or not this is an option but again, unless you ask, you’ll never know.

Finally, even if none of the above apply to you, you can still employ a solicitor on a private basis.  You would have to pay personally to bring your claim but, if you win, the likelihood is that you will recover those costs from your landlord and this could mean that you don’t end up out of pocket at all. 

2. I own my home and have fallen into arrears with my mortgage repayments.  Will I lose my home?

No-one likes seeing someone evicted from their home.  Often, hard working people fall on difficult times through no fault of their own and find themselves struggling to pay the bills. 

A mortgage lender may become impatient and commence possession proceedings so that they can sell the house to repay the loan.  This does not mean though that the Court will automatically side with your mortgage lender and evict you just because you’ve missed a few payments.

If you can prove to the Judge that you are in a position to repay the arrears in a reasonable time (which can even mean paying the arrears over the full term of the mortgage) and you can prove that you are now in a position to meet the monthly instalments, you will normally find that a Judge will give you another chance.

The worst thing you can do is ignore the situation because you think that it is a hopeless case.  If you do nothing then you will lose your home. 

3. I’m a private sector tenant and my landlord wants to evict me.  What can I do?

Most private tenants have Assured Shorthold Tenancies.  This means that a landlord can regain possession of his or her home quite quickly; provided the proper procedures are followed.  The most important thing to note is that possession can only be regained by obtaining a Court order in the event you will not voluntarily surrender possession of the property. 

Evicting you from the property by any other means is a breach of the Protection from Eviction Act 1977 and this carries a maximum prison sentence of 2 years.  You would also be able to sue your landlord for compensation and this could cost your landlord thousands of pounds.  Similarly, if your landlord harasses you to get you to voluntarily surrender possession, this could still amount to unlawful eviction and the same penalties would then apply.

This does not mean that there aren’t consequences for you.  If you stay in occupation right up to the moment the bailiffs arrive to forcibly remove you from the property then your landlord will already have obtained a Court order against you.  That Court order is a County Court Judgment and this may affect your credit rating for years to come.

If in doubt about your rights you should call a solicitor as soon as you know there might be a problem.

4. I’m a Local Authority or Housing Association Tenant.  What are my

rights?

Unlike Private Sector tenants, you have what is known a greater security of tenure.  This is because you have been granted either a Secure Tenancy or an Assured Tenancy.  The clue is in the names of these tenancies.  Provided you follow the terms of your tenancy you are secure and are assured the right to occupy your home for life.  This is because Public Sector landlords are performing a public service. It would not be very public spirited to offer a home to someone who might not otherwise be able to obtain a home of their own, only to then take it away from them later on for no good reason! 

However, there are ways your landlord can regain possession of your home if you are accused of breaching one of the terms of your tenancy.  Again, you cannot be forced to give up possession unless a Judge orders it.  The same rules apply to Public Sector Landlords as to Private Sector Landlords.

The most frequent reasons for a Public Sector Landlord commencing possession proceedings are:

• Rent arrears
• Noise nuisance
• Other types of antisocial behaviour; such as large groups of youths congregating outside a house
• Failing to look after the property properly
• Refusing a landlord entry to the property to carry out inspections

However, just in the same way as mortgage possession proceedings, just because your landlord commences possession proceedings it does not automatically mean you will lose your home.  There might be very good reasons why you should be given a second chance and a Judge will listen to those reasons.  If you can prove that you have corrected the problem; whatever that may be, and you are able to demonstrate how you are going to stop the problem from reoccurring in the future, a Judge is likely to let you keep your home.

5. My rented home is in disrepair.  What can I do?

Your landlord takes rent from you and in exchange you have a right to expect that the property is kept in good condition.  The law in this area is quite complex and cannot be summarised in a few lines.  You may be able to take your landlord to Court to force him or her to repair any defects and/or pay you compensation for the suffering you have experienced as a result of the disrepair.  Whether or not this is possible will depend entirely on your specific circumstances and you should contact a solicitor to discuss this as soon as possible.

As soon as the property falls into disrepair you should:

Notify your landlord of the defects in writing.  The letter should give your landlord a deadline by which the repairs should have been completed

1. Keep a copy of that letter
2. If the deadline passes you may then either report the matter to the Housing Ombudsman or you may contact a solicitor to intervene on your behalf.

6. I am registered with a Local Authority or Housing Association for

housing/re-housing.  How long will I have to wait?

Again, the law in this area is complex and it is not possible to give generic advice.  You rights will very much depend on your personal circumstances and you should contact a solicitor to discuss your situation as soon as possible. 

Every Local Authority has to have a policy in writing which explains how they allocate houses to those on their waiting lists.  That policy can take many forms but it must always be fair, easy to understand and not unfairly prejudicial. 

You will find that most Authorities will place applicants into different orders of priority depending on their personal circumstances.  Priority will usually be given to those who are:

• Homeless
• In an overcrowded house
• Have a disability
• Have a connection to the area they wish to be housed
• Have some other very good reason why they should be considered a priority

It is a difficult job allocating houses to those in need.  Everyone who applies, understandably, believes that they are the most important applicant and expect to be housed before anyone else.  Clearly, this is not possible.  This often leads to complaints against housing officers and the allocation schemes.

It may be possible to challenge your place in the waiting list if you believe that you should be higher up that list.  Sometimes, the allocation scheme that a Housing Association or Local Authority operates is unlawful because it does not take a persons personal circumstances into account.  In such cases it may be possible to bring Judicial Review proceedings.  This means that the allocation scheme who be considered by a Judge who would decide whether or not the scheme is unlawful.  If it is unlawful, the Authority will be ordered to reconsider that scheme and your place in the waiting list will then have to be reconsidered. 

7. I lived with my Mum and/or Dad and they’ve passed away.  Can I take over their tenancy?

In certain circumstances, yes.  This is called succession.  However, there can only be one succession and so if your parents had a joint tenancy, one the death of the first parent, a succession takes place automatically.  The landlord does not issue a fresh tenancy.  By operation of law, a succession is deemed to have taken place.  This would prevent you from then succeeding. 

However, if either your mother or your father had a tenancy in their own name and there has not been a succession already, you would be able to succeed their tenancy if you can prove that you lived with them at their home as your only or principal residence for either 1 or 2 years leading up to the date of their death (depending on the type of tenancy they had.)

There is also a strange situation where the landlord grants a fresh tenancy to the surviving spouse on the death of a joint tenant.  It may be possible in such circumstances to argue that there has not been a succession already because this would have happened automatically without the need for a new written tenancy agreement.  This would mean that the new tenancy is capable of being succeeded and so, on the death of the second parent, you may be able to claim a right of succession.

 If in doubt you should discuss this with a solicitor.

It is obviously not possible to set out every possible situation that you could encounter in connection with you home.  Hopefully this has shed some light on the situation for you and answered some of your questions.  If your question is not answered here I would be pleased to hear from you to discuss solutions to your problem. 
If you would like more information, contact Matthew Lake, or any of the team at Hadens on 0121 526 2626 or follow the link to our website http://www.hadens.co.uk/ to find out more information about the firm and the services we offer.