Want to know your way around gas safety certificates?
Keeping up to date with court proceedings can keep property managers ahead of the game and, more importantly, out of court themselves.
Fixflo spoke to David Smith, Head of Dispute Resolution at JMW Solicitors, about recent legal cases that property managers should be aware of.
Building Regulation Certificates or Gas Safety Certificates?
Legislation requires that if a boiler is replaced during a tenancy, the property manager must give the tenant certification.
In the recent case of Van-Herpen v Green & Green in Hastings County Court, neither the landlord nor the contractor supplied any certification despite the legal requirement to have a building regulation certificate once a boiler is replaced. The landlord knew a gas safety certificate was upcoming and decided to get that instead, claiming it was good enough.
The court, however, did not agree and said the building regulation certificate should have been issued and served on the tenant within 28 days of the replacement works being completed. This was not something that could be fixed after the fact, and therefore, no Section 21 notice could be served.
David said: "It's important to bear in mind that if you are going to get a boiler or other gas appliance replaced during a tenancy, you must get the building regs certification done, and you must serve it on the tenant. You can't hold off until some later date or assume you don't have to do it. The gas regulations are pretty clear."
Rent repayment orders
A case about last-minute rent repayment orders is currently on appeal before the upper tribunal. A rent repayment order must be made within 12 months of the offence being committed.
"If I didn't have an HMO license, my tenants could apply for a rent payment order," David explained. "If I then apply for an HMO license, then the offence ceases being committed, and then they have 12 months to make an application."
In this case, the tenants left it to the last possible day to apply. For example, if a tenant were to apply for a license on 4 May, then the last possible day for rent repayment would in theory be 4 May the following year. However, it has been called into question whether the last application day should actually be 3 May or 5 May.
This is not clear-cut due to the way in which the legislation has been written, according to David, as there are several interpretations.
David added: "If you're going to leave these things to the wire, then that precise day matters. I'm sure most people think, 'what a waste of time', but obvious stuff doesn't tend to go to court that much, and it certainly doesn't get appealed because it's obvious.”
Mental health moratoria
Another area that is currently being questioned are mental health moratoria. A case has recently highlighted its rules.
A person wrongly applied for a bankruptcy order against an individual who had a breathing space in place. Breathing spaces help tenants reduce rent arrears or allow them time to come up with a repayment plan. David explained that this shouldn't have been granted because the tenant had a breathing space, however, the court has the discretion to override this. It made the bankruptcy order anyway due to its belief that the breathing space was obtained dishonestly.
Breathing spaces
Another case being appealed to the High Court involves breathing spaces and their application to mortgage cases.
The standard breathing space provides protection for 60 days, while a mental health crisis breathing space provides protection for 30 days plus the duration of treatment.
"There's quite a lot of clarity required relating to breathing spaces," David said. "It's quite an important point because mental health breathing spaces are relatively easy to obtain in that the medical profession is quite reluctant to put itself at risk by suggesting that someone shouldn't have a mental health breathing space. They will tend to err on the side of saying that someone needs one to protect them from suicide risk because the medical profession doesn't want to be sued for not saying someone needs mental health protection, and then they commit suicide, and people come after them."
He concluded that there is tension between the two professions as a result, which is currently being worked out in the courts.
Discover more on how to deal with breathing spaces with our guide to service charge arrears.
Tenancy deposit protection
A case on tenancy deposit protection and whether or not the deposit PI needs to be signed is in front of the Court of Appeal.
Following a case called Northwood (Solihull) Ltd vs Fearn, it was held that an agent and an employee of an agent could sign a PI certificate on behalf of the landlord as long as they were reasonably appointed to do so.
In a case coming forward to the Court of Appeal called Charterhouse v Low, the deposit certificate isn't signed at all but the covering letter that sent it was signed. It was held in the High Court that if the cover letter were signed, that would work.
David said: "There's some degree of flexibility being applied. This was almost always somewhat inevitable off the back of the Northwoods decision, but that will end up before the Court of Appeal to ascertain just how much flexibility exists in the system."
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