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    #16
    Originally posted by jpkeates View Post
    First of all, thanks for typing all of that - really helpful.
    Thanks for taking the time to read it and reply.

    Originally posted by jpkeates View Post
    I have a feeling that some of what you say could be challenged (I'm not saying you're wrong, though - just that some of it isn't as clear as it might be).
    Very true, which is why we haven't responded either negatively or positively to the illegal NTQs. We've been neutral and non-committal. I've tried 3 legal aid solicitors, 1 turned us down and the other 2 didn't respond. I've asked the council what the tenancy is and they say it's an AT but they're not housing law solicitors.

    Originally posted by jpkeates View Post
    There's possibly an issue with the change of house in 1991. When a court orders an evicition under the rent act rules on the basis that suitable alternative accomodation is available, they will normally order that the new tenancy is also a regulated tenancy. I am not sure what happens if the landlord and tenant make their own arrangements. It's possible that there was a new tenancy in 1991 (which wouldn't then be covered by the Rent Act.)
    It was definitely a new tenancy in 1991. In 1985 it wasn't a Rent Act tenancy, but a protected shorthold (PST). All PSTs were abolished under the HA 1988 and were automatically turned into an AST when a new tenancy was entered into. As no TA was signed until 2½ years after my hubby moved in that indicates the LL thought the old tenancy continued at the new house. Not so.

    The required notice warning my hubby that his new tenancy was to be an AST was not served. There was no reason at all for the LL in 1993 to turn an AST into an AT unless he'd made a mistake with the paperwork in 1991. This is a man who had no gas check done in the property between 1998 and 2003.

    Originally posted by jpkeates View Post
    If a tenancy agreement explicitly says that it isn't an AST, it shouldn't be one, so the agreement in 1993 (backdated to 1992) probably wasn't an AST. I don't think that it's possible for that to be carried forward, though, so it depends on what the new tenancy agreements say about whether they're ASTs or not - or it's possible a court will agree that the term is carried forward as that might clearly have been in the minds of the people making the agreement.
    It wasn't an AST in 1991 because no notice was served stating that the new tenancy was to be an AST. All LL's had to serve that notice between 1989 and 1997. The HA 1988 is quite clear. No notice = an AT. To turn it into an AST the tenant has to serve notice on the LL asking for a less secure tenancy. That did not happen in 2010.

    Originally posted by jpkeates View Post
    Whether that survives the addition of other joint parties, I can't even guess.
    Here's the rub - if it was an AST in 2010 then I was classed as a new tenant and I should have been served a copy of the EPC in November 2010. I wasn't. The first EPC was July last year, 6 months after I asked one. No EPC served at the start of the "new tenancy" in November 2010 = no Section 21. The LL can't have it both ways because an EPC was required from 2008 onwards.

    Originally posted by jpkeates View Post
    Whatever the tenancy type, the landlord doesn't seem to have served valid notice.
    If it's regulated, they'd have to give you grounds (and a gentleman's agreement isn't one!)
    If it's actually an Assured Tenancy, it would have to be notice under s8 (and the same issue is there with the grounds).
    If it's actually an AST, notice could be served under s21, but the notice would have to say so.
    Indeed. An email is not a valid notice. It was only sent to one of us despite it being a joint tenancy. It wasn't on the correct form, or any form at all and no laws were quoted. She simply terminated the tenancy giving 12 months notice.

    Originally posted by jpkeates View Post
    But, whatever the outcome, you've got one heck of a legal textbook chapter!
    Which apparently no legal aid solicitor wants to touch. Go figure.

    Originally posted by jpkeates View Post
    But at least I think I can answer your original question (because i don't think the answer depends on your tenancy status). The failure to meet the EPC minimum standards doesn't affect the landlord's ability to serve notice.
    Has that been tested? Can you direct me to an eviction case where the EPC existed but it was below the required E? I do wonder what is the point of an EPC if one below an E doesn't stop a LL serving a Section 21 notice? It is basically saying "oh it's ok, as long as you have an EPC the fact that it's not compliant with the regulations is ok". It makes the law look like an ass (and it probably is).

    Originally posted by jpkeates View Post
    The landlord can register the property as exempt from the minimum requirement if the property would cost more than £3,500 to bring up to the minimum.
    Indeed but the cost of putting in loft insulation wouldn't cost her as much as that, so she has no excuse other than she's a tight arse and that's why she has a house worth half a million and why we freeze in winter.

    Originally posted by jpkeates View Post
    The landlord can simply do nothing unless the local authority raise the issue and issue a notice (and probably a fine). Then they can either do the required work, get an exemption or try and evict.

    If the council improvement notice is sufficiently severe, the improvement notice may remove the possibility of using s21 (if that notice was possible).

    You'll have the same issue with the requirements for an electrical test certificate next year - because a property where minimal maintenance has been carried out for 20 odd years isn't likely to pass such a test.
    I plan to get the council in shortly to do exactly that. I've already been in touch and they've said an EPC below E is a category 1 hazard.

    Thanks for taking a look at this very bizarre housing case. In the meantime I'm looking for somewhere else that isn't rented out by a woman who likes getting the rent but resents the responsibility of keeping her property in decent nick.

    Comment


      #17
      Originally posted by Snakey View Post
      It was definitely a new tenancy in 1991. In 1985 it wasn't a Rent Act tenancy, but a protected shorthold (PST). All PSTs were abolished under the HA 1988 and were automatically turned into an AST when a new tenancy was entered into. As no TA was signed until 2½ years after my hubby moved in that indicates the LL thought the old tenancy continued at the new house. Not so.
      OK, with you there.

      It wasn't an AST in 1991 because no notice was served stating that the new tenancy was to be an AST. All LL's had to serve that notice between 1989 and 1997. The HA 1988 is quite clear. No notice = an AT. To turn it into an AST the tenant has to serve notice on the LL asking for a less secure tenancy. That did not happen in 2010.
      So we're pretty confident it was an Assured Tenancy.
      Here's the rub - if it was an AST in 2010 then I was classed as a new tenant and I should have been served a copy of the EPC in November 2010. I wasn't. The first EPC was July last year, 6 months after I asked one. No EPC served at the start of the "new tenancy" in November 2010 = no Section 21. The LL can't have it both ways because an EPC was required from 2008 onwards.
      Yes, but because it was pre 2015, the s21 restriction doesn't apply to it.
      Failure to provide an EPC can be corrected by providing one before serving notice in any case.

      It is not legal not to provide one before the start of the tenancy in 2010, but no one's really going to care much.

      Indeed. An email is not a valid notice. It was only sent to one of us despite it being a joint tenancy. It wasn't on the correct form, or any form at all and no laws were quoted. She simply terminated the tenancy giving 12 months notice.
      Notice possibly can be by email (unless the tenancy agreement says it can't. But it should quote that it is notice under s21 etc.

      However, even if it is valid, it has no effect.
      The only thing achieved by a landlord serving notice under s21 if the tenant doesn't leave is to allow them to go to court to ask for possession. Since 2015, s21 notices time out since 2015, and have to be escalated to court within six months of service.
      So a 12 month s21 notice is pointless.

      So what you have there is a request for you to leave, not notice.[/QUOTE]
      Which apparently no legal aid solicitor wants to touch. Go figure.
      I'm not surprised, this is complex stuff for almost no money.

      Has that been tested? Can you direct me to an eviction case where the EPC existed but it was below the required E? I do wonder what is the point of an EPC if one below an E doesn't stop a LL serving a Section 21 notice? It is basically saying "oh it's ok, as long as you have an EPC the fact that it's not compliant with the regulations is ok". It makes the law look like an ass (and it probably is).
      It's possibly been tested, but Housing Court cases aren't reported, and aren't senior enough to create precedents in any case.

      You need a case that's appealed higher up the court hierarchy. And I doubt the legislation is old enough to have managed to bring about the necessary situation and to have been appealed.

      However, the legislation is pretty clear. The penalty for letting a below threshold property is up to £4,000 (and a notice to correct the problem.) But it has no effect on s21.
      Which, to me, makes sense.
      You can't, on the one hand, say that a property is too energy inefficient to allow it to be rented and prevent the landlord from being able to stop letting it.

      Indeed but the cost of putting in loft insulation wouldn't cost her as much as that, so she has no excuse other than she's a tight arse and that's why she has a house worth half a million and why we freeze in winter.
      I plan to get the council in shortly to do exactly that. I've already been in touch and they've said an EPC below E is a category 1 hazard.
      That's disappointing because it really isn't, but there you go.

      [/QUOTE]In the meantime I'm looking for somewhere else that isn't rented out by a woman who likes getting the rent but resents the responsibility of keeping her property in decent nick.[/QUOTE]Good luck.

      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

      Comment


        #18
        Well, thanks for your replies but you continue to quote Section 21 despite my question being about an assured tenancy.

        Originally posted by jpkeates View Post
        So what you have there is a request for you to leave, not notice.
        If your boss said to you (if you are employed) "therefore your job will terminate on 1 August 2020" would you see that as a request?

        Originally posted by jpkeates View Post
        But it has no effect on s21. Which, to me, makes sense. You can't, on the one hand, say that a property is too energy inefficient to allow it to be rented and prevent the landlord from being able to stop letting it.
        https://www.energylivenews.com/2019/...nt-properties/

        From 1st April 2020, all domestic properties that are being let must have an E rating or higher, regardless of tenancy status. Tenants cannot be evicted during this time on the grounds of failed EPC, neither can it be rented out again until the standard has been met.
        https://www.fsp-law.com/getting-your-house-in-order/

        Although a breach of the regulations may result in sanctions, the breach does not invalidate the tenancy itself. Rent is still payable, although tenants may try to stop payments once they know that the landlord is in breach.
        Originally posted by jpkeates View Post
        That's disappointing because it really isn't, but there you go.
        https://assets.publishing.service.go...425/150940.pdf

        Below 10 ̊C a great risk of hypothermia, especially for the elderly.

        Comment


          #19
          Originally posted by Snakey View Post
          Well, thanks for your replies but you continue to quote Section 21 despite my question being about an assured tenancy.
          I think when you joined the tenancy, it may have become an AST.
          That's probably a new tenancy.

          My point was that if it is an AST, the notice wasn't valid as section 21 notice.
          If it's not an AST, it's simply not valid, full stop.
          If your boss said to you (if you are employed) "therefore your job will terminate on 1 August 2020" would you see that as a request?
          Tenants and employees have different rights, so that question doesn't really make any sense.
          A landlords notice is part of a process that allows them to petition a court to end a tenancy.
          An employers notice (if valid) ends someone's employment.
          From 1st April 2020, all domestic properties that are being let must have an E rating or higher, regardless of tenancy status. Tenants cannot be evicted during this time on the grounds of failed EPC, neither can it be rented out again until the standard has been met.
          Unfortunately, that's not correct.
          If the local authority issue a serious enough notice, that prevents the use of a s21 notice, but a building not having an EPC rating of E isn't really a category 1 hazard in itself.
          A lower than E rating doesn't prevent notice being served, however much you'd prefer it to.

          However, it doesn't matter, because the landlord hasn't served valid notice anyway.
          Below 10 ̊C a great risk of hypothermia, especially for the elderly.
          A temperature below 10c is not an automatic result of a property having an EPC of F - let's keep some sense of proportion here.


          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

          Comment


            #20
            I do appreciate your point that it might be an AST. I have been trying to get a straight answer about it since July last year. Regarding your "keep some sense of proportion here" the temperature in my bathroom yesterday afternoon was 10C.

            Comment


              #21
              I forgot to mention that neither TA has the landlord's address on them.

              Comment


                #22
                Originally posted by Snakey View Post
                I do appreciate your point that it might be an AST. I have been trying to get a straight answer about it since July last year.
                I don't think that there is a straight answer, there are lots of possibilities with some theories more likely than others.

                Even if a court found that it was (or wasn't) an AST, I can easily imagine an appeal deciding differently.

                I'm working through the time line pretty much as if it were an exam question. Overlayed on that is likely to be the purpose of any court decision. If the court felt that it was better if the question was answered one way rather than the other, they're likely to bend the judgement that way.

                the temperature in my bathroom yesterday afternoon was 10C.
                My point was that the EPC is about energy efficiency. A property not being efficient is unlikely to be (on its own) unsafe - it might be expensive to run at a comfortable temperature, but it's not like a gas leak or the drains leaking down a wall.
                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                Comment


                  #23
                  Originally posted by jpkeates View Post
                  I don't think that there is a straight answer, there are lots of possibilities with some theories more likely than others.

                  Even if a court found that it was (or wasn't) an AST, I can easily imagine an appeal deciding differently.

                  I'm working through the time line pretty much as if it were an exam question. Overlayed on that is likely to be the purpose of any court decision. If the court felt that it was better if the question was answered one way rather than the other, they're likely to bend the judgement that way.
                  Yeah it doesn't seem at all simple and we can't afford to lose a court case.

                  Originally posted by jpkeates View Post
                  My point was that the EPC is about energy efficiency. A property not being efficient is unlikely to be (on its own) unsafe - it might be expensive to run at a comfortable temperature, but it's not like a gas leak or the drains leaking down a wall.
                  Yes you are right on that point. I did recently take a photo of the fungus growing on the living room side of our front door lol (both doors are rotted) and the over 30 year old worktops that really are a risk to our health, but those things are a separate issue to the EPC. The electrics have never been checked in the 29 years my hubby has lived in this house. It seems to me that even when the LL is bang out of order that the courts will still grant her an eviction order under S21 even though no Section 20 notice was ever served prior to 1997.



                  Comment


                    #24
                    If you involve the local authority and they serve improvement notices, it sounds as though they'd be serious enough to close the door to section 21 (at least until 6 months after they were satisfied).
                    And the landlord doesn't seem to know what they're doing, so there's also the issue of getting the notice right - they look simple, but they're easy to cock up.
                    And they take two months to expire, several more months to get to court and then to fail on a technicality starts the whole cycle again - and that's assuming it is an AST.

                    If it's not an AST, I think it's an AT, so the route has to be notice under section 8, and I don't think there are any grounds - so that route isn't available either.

                    So while the lack of a definitive answer is frustrating, it's more of a problem for the landlord, because they have the next move regarding trying to remove you.
                    They're going to have to get legal advice at some point, and that will produce an answer, at least.

                    If I were advising the landlord, I'd start putting the rent up (because that's an option), so I'd start gathering evidence of what the rent should be, so you can challenge that should it arise.
                    That's a long term strategy, though, and it depends on a lot of things.
                    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                    Comment


                      #25
                      Originally posted by jpkeates View Post
                      If I were advising the landlord, I'd start putting the rent up (because that's an option), so I'd start gathering evidence of what the rent should be, so you can challenge that should it arise. That's a long term strategy, though, and it depends on a lot of things.
                      That's an interesting question - how much is a house worth in rent when it's banned from being let at all on 1 April? How do I go about gathering evidence of what the rent should be? Bear in mind the rent has not gone up since 2010, there's no central heating, the DG is blown, the kitchen is well...the less said about it the better, the hot water is via an immersion heater, plaster is falling off the walls, the bathroom isn't tiled, fungus grows out of the doors, the electrics are dodgy blah blah.

                      Comment


                        #26
                        This is quite a fascinating case and Ive ruminated at length on what to suggest. I think your best line to take is as seems to be the case that the tenancy as an assured tenancy which gives you security of tenure subject to paying the rent agreed or determined for the tenancy. There is a right to apply for the rent to be determined by (what used to be called a rent assessment committee) now a FTT. I vaguely remember a case in the 1980s of an assured tenancy (written up in the Estates Gazette) where the property was in a really frightful condition and the Rent Assessment Committee determined that the condition was so awful that someone would only pay £5 a week for the dwelling. This was probably too low but the Committee were incensed at the Landlord's neglect of the tenant's home and were wanting to indicate that the results of neglect would be penal as a message to the then dwindling band of neglectful landlords. It is a measure of how things have changed that, back in the 60s and 70s landlords were getting unbelievably low rents for tenancies under the Rent Acts, literally a few pounds a week, and no-one really expected that landlords would do much to keep in what we would now expect to be the standard of good and tenantable condition.

                        Even when I started off full time in the property sector in 1988 I can remember sitting tenants of two bedroom flats in Greater London ("3 rooms K and B" in the parlance of the day) with rents set by the rent officer as low as £117/month.

                        I would imagine that in this case they would fix a rent 20 or 30 % lower than what would be the registered rent if the premises were held under the Rent Act 1977. There is an online register of every registered rent in the UK, so you can get a feel of what rent officers are determining.Rents for assured tenancies in my experience are a bit more than for a registered rent but well below a market rent. Most assured tenants are successors to tenancies under the Rent Act but yours is a textbook example of one which was shorthold but became secure due to the landlord trying to save themselves the cost of professional expertise.

                        Comment


                          #27
                          Originally posted by flyingfreehold View Post
                          Rents for assured tenancies in my experience are a bit more than for a registered rent but well below a market rent.
                          At £70 per week, it's £31 per week cheaper than the house next door which is at least a D on the EPC and is very nicely done out. Social housing is £78 to £84 per week but they all have central heating, gas boiler with instant hot water etc whereas we do not.

                          The original LL inherited this property (no mortgage) and I think that goes some way to explaining why neither of the LLs have ever invested any money into it. A property that has been refurbished on this street fetches between £70 and £76K. This property is worth about half that. The LLs have simply extracted the equity.

                          The fact that the rent has not risen over the last 9 years has gone some way towards my not getting the council in to do a HHSRS inspection or my applying to have the rent assessed. That may change depending on what the LL's next move is.

                          Originally posted by flyingfreehold View Post
                          but yours is a textbook example of one which was shorthold but became secure due to the landlord trying to save themselves the cost of professional expertise.
                          That does appear to be the case.

                          Comment

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