ࡱ> GIF3 ')bjbjKK ~A)w)w'%l"""""""60 0 0 0 L $69| : E ,q $' G^" " !"" !!! " " ! !!l"" p 60 $ 09 !66""""  HYPERLINK "http://www.hlpa.org.uk/index.shtml"  INCLUDEPICTURE "http://www.hlpa.org.uk/i/logo.gif" \* MERGEFORMATINET  A Response to the Law Commissions Consultation Paper: Encouraging Responsible Letting (Consultation Paper 181) October 2007 Contact Details: David Watkinson (HLPA Executive Committee Member & Chair of HLPA Law Reform Working Group) Address: Garden Court Chambers, 57 60 Lincolns Inn Fields, London, WC2A 3LS Telephone No: 0207 993 7600 Email: davidw@gclaw.co.uk Web:  HYPERLINK "http://www.hlpa.org.uk/" \o "http://www.hlpa.org.uk/" www.hlpa.org.ukAbout HLPA The Housing Law Practitioners Association (HLPA) is an organisation of solicitors, barristers, advice workers, independent environmental health officers and others who work in the field of housing law. Membership is open to all those who use housing law for the benefit of the homeless, tenants and other occupiers of housing. It has existed for over 10 years. Its main function is the holding of regular meetings for members on topics suggested by the membership and led by practitioners particularly experienced in that area, almost invariably members themselves. The Association is regularly consulted on proposed changes in housing law (by primary and subordinate legislation and also by other means such as relevant codes) by the relevant Departments, chiefly the DCLG. The Chair, Vivien Gambling, is an experienced housing specialist and a partner in a leading firm of solicitors. Although the Association is London based, the membership is countrywide. The Association is also informally linked with similar Housing Law Practitioners Groups in the North-West, South Yorkshire and the West Midlands. Membership of HLPA is on the basis of a commitment to HLPAs objectives. HLPAs objectives are: To promote, foster and develop equal access to the legal system. To promote, foster and develop the rights of homeless persons, tenants and others who receive housing services or are disadvantaged in the provision of housing. To foster the role of the legal process in the protection of tenants and other residential occupiers. To foster the role of the legal process in the promotion of higher standards of housing construction, improvement and repair, landlord services to tenants and local authority services to public and private sector tenants, homeless persons and others in need of advice and assistance in housing provision. To promote and develop expertise in the practice of housing law by education and the exchange of information and knowledge. The HLPA Law Reform working group has prepared this response. This group meets regularly to discuss law reform issues as they affect housing law practitioners. The Chair of the group reports back to the Executive Committee and to members at the main meetings which take place every two months. The main meetings are regularly attended by over one hundred practitioners. The key issues 10. 7 Part 1 - The Approach adopted We agree with the concentration on housing conditions, unlawful eviction and harassment. In our view these are important issues and particularly in the private rented sector. The material presented in the Paper indicate the importance of disrepair issues and those relating to housing conditions (Part 3 refers). We have looked forward to the Law Commissions proposals on these topics since the Renting Homes Consultation Paper in 2003. 10.9 Part 2 - The Analysis of the Private Rented Sector We agree with the broad picture of the sector presented by the Paper. We particularly note para 2.23 and the passages concerning tenants not being well informed about their rights and the lack of statutory of tenure discouraging tenants from seeking to enforce their rights 10.11 Part 3 - Is the law working as Parliament intended? Irrespective of Parliaments intentions, we agree that the law is not working effectively so far as housing conditions and disrepair are concerned. The main enforcement powers and responsibilities have been conferred on local authorities in relation both to that (e.g. Housing Act 2004) and illegal eviction/harassment. Local authorities, in our experience, do not, for whatever reason, intervene in remedying deficiencies in the private sector in any systematic manner and rarely. This may be due to pressure of more pressing priorities in the work of, or lack of resources available to, the Environmental Health Department, which usually has the lead role in these matters. This may also be due to the general absence of any significant private sector tenants associations which are a feature in the social sector and in Rent Act protected/long leaseholder occupied blocks of flats or adjoining residences. Local authority intervention tends to result from the tenants themselves or their representatives drawing the deficiencies persistently to the authorities attention. As to illegal eviction/harassment while such cases do occur they are relatively rare and have decreased since the 1960s/1970s. Usually the perpetrators are not corporate landlords but individuals who may have entered more recently into the rented market and are less aware of their obligations. There are a number of reasons for this apparently low level. The message that eviction without recourse to the courts can have expensive consequences has been brought home by litigation and legislation (e.g. the enhanced damages provisions of s 27/8 Housing Act 1988). While lock-outs do occur (although like the Commission we have no statistics) harassment tends to be low grade although annoying frequent visits at unsocial hours, deliberate failure to carry out works, accusations of petty damage, cut offs of gas/electricity for short period. The reaction is more often to move than to litigate. In addition enhanced damages are awarded at a low level in cases where the tenancy was an assured shorthold, as most private sector tenancies now are (Melville v Bruton 1996 29 HLR 319 CA award of 15,000 reduced to 500). This does not encourage pursuing a legal remedy. We note the material at para 3.27 of the Paper to the effect that few tenants gave lack of security as the reason for not seeking to enforce their rights. We observe that those who seek legal advice may well be deterred for that reason. Part 4 - Costs of a Compliance system It is plain from the analysis at para 4.29 of the paper that even the relatively low standards of repair required by the law are not being met and that the current means of enforcement are failing. Depending on the remedy applied, overall additional costs to the public may result but the present system is not sustainable as the paper acknowledges Parts 5 and 6 - Regulatory Control Theory and Application to the History of the Private Rented Sector We do not feel we can make any helpful comment on the theory. The history was a helpful summary. Part 7 - The case for the reform of the regulatory structure We agree there is a case for reform. While an enforced self regulation system as proposed could be helpful, our preference would be a system which would enable tenants to be better placed to enforce their rights. The encouragement of strong tenants associations, and a wider provision of advice and assistance than currently exists (including legal representation) would have a greater impact by empowering those in whose interest it is to improve (their own) housing conditions. We think it appropriate to propose an increase in security of tenure in the private rented sector which would give tenants the confidence to challenge their landlords over conditions. We note the challenging of the assumption that increase in regulation has a negative effect on the supply of housing in Appendix 2 Part 5 para 5.7 of the Paper. We also note that the Paper proposes increasing regulation through landlords associations which at best is only half the picture. In the event of this system being introduced, we agree the categories of landlord to be excluded should be limited essentially all those who let for profit or as a business-including the single person/single house landlord. Part 8 The central regulator. So far as it goes this could be helpful although we would be opposed to removing any other enforcement mechanism. However we find this part of the proposal too lacking in detail to be able to make a satisfactory response. As stated the purpose is to deal in particular with harassment and repair. These sorts of cases in particular can require urgent action to prevent harm to the tenant and his/her family. There is little detail as what behaviour the regulatory mechanism would be regulating, how it would be done and the means of enforcement-see paras 8.25 and 8.34. It is of concern that, without more precision as to how the scheme is to work and what it is to cover, it could introduce a layer of regulation which could delay obtaining a remedy in cases which require speedy action Part 9 the home condition certification Although this proposal could help to increase standards as the Paper recognises, enforcement would be primarily based on the occupiers (para 9.17)- reinforcing the points we have made above under Part 7 Conclusion This concludes our Response. 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