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I share a lot of information through my social media accounts and often have some interesting online discussions as a result. The amount of people who actually read the posts, click on the links or comment will depend on the subject of course, how busy people are offline and even the time of day.
I posted a link to a story on December 14th at 20.00 on my business Facebook page Mary Latham Landlord and some relevant property fb groups and I cannot account for the huge number of people (25,000 and rising) who have read that post and have clicked on the link, except to that it will effect more people than I imagined and that being the case it is worth sharing it in this article.
I have been aware for some time that in the student market landlords take liberties which we would not get away with in any other market. I have read posts online from both students and landlords who both think that they are in the right. I speak as a landlord of students since 1972 Fortunately most students are too busy enjoying their freedom from mum and dad and 6-hour compulsory school day to take time to assert their legal rights. It’s often a visiting parent who takes action when they become aware that rent is being paid, often from their pocket, for a property which is not fit to live in much to the annoyance of their offspring who “don’t want hassle”. The story which was reported in December has made a lot of landlords nervous judging by the comments on the discussions.
“I never let to law students”
“When are we expected to carry out major repairs and upgrades”
“They want a nice house and we need time to get the work done”
“They were warned before they signed the contract”
If you don’t let to students by now you are wondering what I am talking about because you cannot imagine tenants paying for a property which they cannot live in.
This is the headline:
Law student, 19, sues landlord and wins first case
In a nutshell a young man obtained a university place through clearing and therefore he hadn’t time to view properties, which would have been in short supply at that late stage, so he booked and paid for a room based on publicity photographs and specification. The property was in a purpose built student block developed by a private developer – this isn’t really relevant although many landlords who comment believed that it is.
“Why are landlords being blamed when this is a university block”
“This isn’t a private landlord, they take every chance to have a go at us”
A landlord is a landlord, and this was not a university owned block it was in fact a private developer.
When the young man arrived, he was faced with what he called “a building site”
“I thought I was going to get what I’d seen on these photos,” he says. “These nice, upmarket student accommodation rooms. There were skips everywhere, tradesmen everywhere, hammering the ceiling, hammering the walls. The place was covered in dust from sanding.”
He moved out at the end of the first week and decided to take action against the landlord. He stopped paying rent and was threatened with legal action.
He took witness statements from his fellow tenants and sued for the first month’s rent and deposit to be returned. The landlord sued for the rent until the end of the fixed term contract, many landlords believe that if they have a signed contract the tenant must pay to the end of the fixed term whatever happens. As the headline said the student won.
“Jack won what he had paid them plus court fees, totalling £999. The counterclaim was dismissed.”
Yes, he was a law student but had only just arrived at university and therefore had no learning to fall back on, it would appear that his father is a lawyer because he went represented him in the online court hearing and only a person legally qualified can make legal representation in court. Regardless this case was always going to happen, and I don’t know why it has taken so long. The genie is out of the bottle, and it is now more important than ever that landlords realise that students are not different from any other tenant, they have the same legal rights, their youth doesn’t mean that they can be treated like kids, they are old enough to sign a contract and pay their rent – adults.
Over the years I have seen many students subjected to “building sites” sometimes this was planned and “agreed”. A tenant cannot sign away their legal rights just because it suits a landlord. Some students will agree not to occupy the property for up to 3 months over the summer while works are being carried out. Taking rent for a property which is not fit for human habitation is unlawful and most tenants only agree because they are afraid of losing the property if they don’t. Landlords who want to avoid council tax bills sometimes do so by signing a 12-month contract with a 3 month (or whatever) rent free period but if the Council Tax department find out they may want their council tax for a void period. The contract should only begin when the house is legally fit for occupation.
Sometimes it is because works take longer than anticipated and are not completed at move in day – temporary accommodation should be provided by the landlord until the major works are complete, most contractors have left the building and it is clean and safe to live in with full working facilities.
Now that this case has been won, we can expect to see more and in the words of the young man who took this action:
“You just can’t let these landlords win,” he added. “[You’ve] got to take them to court if this happens. Change will happen. The culture needs to change.”
This case is about students, but it also applies to other tenants. The grounds on which the case was fought were breach of contract and misrepresentation.
One of the comments made by a landlord in the online discussion was:
“He must take some responsibility for signing a contract for a room that he hadn’t viewed. Who does that?”
I sat on my hands until I could trust myself not to be rude. This is an illustration of the attitude some landlords have towards our customers. If any of us turned up to stay in a hotel which was a building site would that landlord say the same thing? I very much doubt it and yet here was this 18-year-old young man, leaving home, probably to live some distance from his family support, about to embark on a degree course which may shape the rest of his life and all the excitement and stress which goes with those first days of university life. He was taken at clearing which gave him little time to plan and “he must take some responsibility…”. The reason for consumer protection legislation is to protect consumers from being mis-lead by advertising. At a time where many of us spend thousands buying online where we must trust the supplier as we buy everything from the food that we eat to expensive luxury items (especially since C-19 began) we all depend on the law protecting us from misrepresentation. The Advertising Standards Authority also have a Code for all advertising, and this is the relevant part for this case.
03 Misleading advertising – ASA | CAP
“Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
The courts have defined misrepresentation as:
“an untrue statement of existing fact made by one party to the other which, while not forming part of the contract, is nevertheless one of the reasons that induces them to enter into it
A finding of misrepresentation will allow the misled party to avoid the obligations posed by the resulting contract, if the statement subsequently turns out to be untrue. In these circumstance, consent to enter the contract is said to be vitiated and the agreement false.”
Misrepresentation in English Law | United Kingdom Encyclopedia of Law (lawi.org.uk)
Misrepresentation Act 1967
Misrepresentation Act 1967 (legislation.gov.uk)
The other part of the claim – Breach of contract
“When one party to a valid contract is not complying with a particular term, its conduct may amount to a breach. When a breach of contract occurs, the innocent party is entitled to bring a claim in relation to the breach and seek compensation – usually in the form of damages
The burden is on the claimant to show, on the balance of probabilities, that there has been a breach of contract that has caused loss”
It’s a credit to this young man that he only claimed what he had paid in good faith and costs for taking legal action. He could have claimed for compensation because of the circumstances he was left with.
If we want to rely on Contracts signed by people who have not physically viewed our properties, we need to pay attention to the law and make certain that we do not advertise a property which falls within the definition of Misrepresentation nor Breach of Contract.
This means
- No photographs which are not of the property/room which is being offered
- No photographs taken at an angle which completely distorts/exaggerates the size of the room
- No running an ad to “test the market” you can find out all you need to know online and offering a property which is not available is breaking the Consumer Rights Act 2015
- No offering availability where the property is not ready for occupation and most particularly where contractors are still in the building carrying out works other than small repairs and snagging
- No statements which say “All inclusive” where you are controlling heating or have a Fair Usage Clause. Say instead, “Inclusive subject to Fair Usage”
- No asking tenants to sign away their legal rights to “quiet enjoyment” or not to occupy during any part of the tenancy period
- No major works within the tenancy contract period unless it is an unforeseen emergency
- Giving a minimum of 24 hours written (can be email) notice of a contractors visit and accepting a refusal if it doesn’t suit your tenants. The number of landlords who begin works towards the end of the contract when their student tenants are in the middle of exams beggars belief.
- Treating all tenants as responsible adults and discussing anything which needs to happen in their home
- Stop playing the victim when a tenant asks for what he is paying for. They are our customers, and no one forces us to be landlords, if we choose to become landlords we are choosing to comply with the law.
I believe that landlords have a very difficult year ahead in terms of regulation and we all need to ensure that we keep our portfolios safe from unnecessary pressure.
We also need to take notice of any local consultation that is taking place because it will be too late to complain after the event.
Birmingham City Council launched a “consultation” on 17th December 2021 which closes on 28th January 2022, a period which covers 6 weekends and 3 bank holidays, not to mention Christmas and New Year’s Eve when very little work is done, 26 working days left. They obviously take this very seriously and are keen to get our views!!
What are they consulting about?
Co-Living developments and changes in HMO standards for new HMO applications or existing HMO which are asking for PP to increase in size.
The co-living developments, one would have thought, would be to encourage a growing city with an average age 37.8 but they plan to apply requirements including exterior amenity space which developers may struggle with, particularly in the city centre.
What will concern most smaller landlords is the requirements that they plan to impose on new or developing HMO.
THE HIGHLIGHTS
- Proposals comprising the conversion of existing C3 dwelling house to an HMO must demonstrate there is an established lack of demand for the single-family use of the property concerned based on local housing market circumstances at the time. Evidence that the property has been openly marketed at a reasonable purchase or rental price for a period of at least six months shall be submitted with the application and verified by a suitable person in a relevant profession, such as an estate agent.
- HMO proposals, including proposals to intensify existing HMOs will be expected to provide high quality accommodation with adequate living space. The internal space standards for bedrooms are at least 7.5 sq.m. (single) and 11.5 sq.m. (double). – An increase in room sizes from 6.52 and 10.2
- Communal living space should be provided within the main structure of the building and not within conservatories due to the inferior noise insulation and consequent effect on amenity of neighbours. Insufficient communal areas increase the time occupants must spend in their individual bedrooms and can therefore hinder social cohesion within the property – Many lounges have been repurposed as bedrooms and several semi-permanent extensions have been built to facilitate communal spaces
- The external area serving the dwelling should also be of sufficient size to accommodate waste storage requirements, provide space for outdoor clothes drying and amenity space for residents. Adequate provision must be made for secure, covered cycle storage within the curtilage of the property as set out in the Parking SPD. – This is virtually impossible in a city of Victorian terraced houses, many with a tiny front garden or no front garden at all. Who dries their clothes outdoors, most landlord supply a washer drier…?
- Provision of 10 sq.m. of outdoor amenity space per resident. – There will be tears before bedtime
- In considering proposals for HMOs the Council will apply parking standards set out in the Parking Supplementary Planning Document – Oh dear
- It is recognised that the increase in the number of bedrooms in existing HMOs can have a harmful impact on neighbouring occupiers. These types of planning applications will be assessed on their own individual merits on a case-by-case basis and against criterion This includes impact on amenity, character, appearance, highway safety and parking. This does make sense although it won’t be popular with landlords, residents will be relieved.
Safe to say that Birmingham may not enjoy the popularity with landlords and developers that it has enjoyed in the past but when I posted this on my social media it only got around 3,000 hits and only 110 people actually clicked the link and I expect many of those haven’t actually read these documents, which are heavy, and I imagine that was the point. There are going to be some shocks when landlords and developers who work in Birmingham realise the content of the consultation.
