Free Legal Help Update

Without a lawyer for a civil or family case? Then (if you haven't been there already - shame on you) go to http://www.breakinglaw.co.uk/search/label/free%20legal%20help

Here's a short update. The Br Pro Bono Unit has just changed its name to Advocate but its aims remain the same.

And the Personal Support Unit has just recruited money saving expert Martin Lewis as a patron. He wrote the foreword to Breaking Law and so is obviously a person of impeccable taste. 

Service Charge Loopholes: You love 'em!

You seem to like service charge loopholes. I hear that some of you have been retiring to bed with a print out of  http://www.breakinglaw.co.uk/search/label/service%20charges What's wrong with you? Lessors are cuddly little opossums just trying to scratch out a living and recoup what they reasonably shell out to keep your homes up to scratch. Aren't they? What shall we do? A flag day for lessors or  some more recent cases which may pave the way to outwitting them? OK, you win.

Interim service charge demands, like final demands, must be reasonable in amount. The Landlord and Tenant Act 1985 section 19(2) says so. Your lease will almost certainly contain a regime for the lessor to make interim demands and the lessor could fail to follow the regime to the letter. That failure in itself may well not be fatal to the lessor being able to lawfully recover the interim sum you are being told to pay - it will depend on the wording of the lease and how serious has been the lessor's failure - but it might anyway come into the reckoning on whether that sum is reasonable. The other point is that the reasonableness of what is being asked for is to be assessed as at the date on which your liability to pay it arises. 

And so it was that in Wigmore Homes (UK) Ltd v Superbly Works Residents Association Ltd [2018] UKUT 252 (LC) the upper tribunal  has just slashed the lessor's interim demands for six years by one-half. The amount sought for each of those six years had been precisely the same and the tribunal decided that this was a clear indication that the lessor had not carried out a careful assessment each year and that the sum claimed was not based on a genuine estimate of the likely expenditure.

Over to another case where the upper tribunal's judgment has just been published - Bracken Hill Court at Ackworth Management Ltd  v Dobson and others [2018] UKUT 333 (LC). Here the lessees lost but the case highlights a very important legal right for lessees. It is to be consulted by the lessor under the Landlord and Tenant Act 1985section 20ZA(2) - no joke!- about entering into a contract for a fixed period of more than 12 months. Slipping up on this will usually mean that the lessor cannot recover more than £100  a year from each lessee towards the contract price. What happened here is that the lessor engaged a management company to look after a block of flats in Pontefract. The contract was renewed annually and the lessor and the management company always agreed that the new contract would last no longer than 364 days. The upper tribunal ruled that none of these contracts was for longer than one year and so there had been no duty on the lessor to consult with the lessees about renewal. It might well have been that the lessor and the management company had an expectation that in all likelihood the contract would be renewed but an expectation of renewal was not the same as a contract. Either party would he been entitled to decline to renew.

Generally, annual renewals will suit the lessor and save them having to consult. Doing so will not trip up the lessor if the arrangement is not a sham. If it could be shown that there was really a commitment to keep the management company or other contractor on board for more than 12 months and that the so-called renewal process was not genuine then lessees should be able to take advantage of the consultation breach.

Much more in Breaking Law. Even some advice to lessors . Sorry.

A&E RECEPTIONISTS NOT TO MISLEAD ON LENGTH OF WAIT

Michael Darnley was struck on the head by an unknown assailant. To A&E at Croydon's Mayday Hospital he went, with  a friend.

'I have been assaulted by being struck over the back of the head. I think I have a head injury. I am feeling unwell. My head is hurting.  I need urgent attention.'

'You will have to go and sit down and you will have to wait four or five hours before somebody looks at you. '

' I cannot wait that long. I feel I am about to collapse.'

' If you do collapse, you will be treated as an emergency.'

That was broadly the conversation between Mr Darnley and the receptionist. 19 minutes after arriving and without telling the hospital, he left. He later did collapse and was hospitalised and underwent surgery. Unhappily, he suffered permanent brain damage. Had he stayed, the collapse would have taken place in a hospital setting, he would have received earlier surgery and he would have made a complete recovery.

The information given to Mr Darnley by the receptionist had been incorrect and incomplete. It had influenced his decision to go. He sued the hospital. The trial judge threw out his claim. He appealed. The Court of Appeal (by a majority decision, with one judge disagreeing with his two colleagues) threw out the appeal. The Supreme Court has just unanimously allowed the appeal.* He will receive damages.

This was the Supreme Court's reasoning. To succeed, Mr Darnley had to prove that the hospital owed him a legal duty of care; that it had breached that duty; and that, as a result, he had been injured. Those who ran a casualty department DID owe a duty of care BEFORE someone was treated or admitted who was complaining of illness or injury to take reasonable care not to cause them injury. It mattered not to whether the duty existed that the actions of administrative staff rather than unqualified professionals were under scrutiny.

The duty of care HAD been breached by the receptionist. Had he remained, Mr Darnley should have been seen by a triage nurse within 3o minutes. Patients in Mr Darnley's position should be provided on arrival with accurate information that this is so. It was not unreasonable to require receptionists to take reasonable care not to provide misleading information as to the likely availability of medical assistance.

And the fact that Mr Darnley made his exit before seeing someone, did not prevent him from succeeding in his claim. Had he been told he had a 30 minute wait for triage, he would have stayed. It was reasonably foreseeable that, told what he was, he would have made off.

* Darnley v Croydon Health Services NHS Trust [2018] UKSC 50

Nikah Nullity Case: Latest

For the story so far, see http://www.breakinglaw.co.uk/search/label/Nikah%20ceremonies

The judge who granted the decree has refused permission to appeal to both the 'husband' and the Attorney-General who intervened so as to be heard at the contested hearing when the judge had to decide whether there had been a marriage ceremony which was susceptible to the grant of a decree. 

The 'husband' can now have a go at obtaining permission to appeal from the Court of Appeal which would determine the actual appeal if permission was granted. This is precisely what he is now doing.

Watch this space and, in the meantime, you can read about nullity, divorce, judicial separation, dissolution and the rest in.....Breaking Law!

Tenants'/Residents' Associations:Get Recognised: New Laws

This is for tenants in England. It's one thing to have a tenants' (sometimes called a residents') association to keep the landlord in check - so long as you aren't saddled with being its secretary! It's another to be recognised because recognition brings additional rights. A recognised association can appoint a surveyor to advise on any matter relating to the service charge payable to the landlord. That surveyor can inspect and copy relevant documents held by the landlord. And the association's secretary can ask the landlord for summaries of service charge costs and insurance cover, inspect service charge accounts and receipts and ask to be consulted about the appointment or reappointment of the dreaded managing agents.  

How do you get to be recognised? Either by the landlord confirming in writing that they recognise the association or by applying to the first tier tribunal (property chamber) for a recognition certificate. But a minimum number of tenants must ask for recognition. That minimum must be 60% of those who qualify (generally, those with long leases who have to pay a variable service charge). As from 01 November 2018, the 60% is reducing to 50%. However there have been tribunal cases in which recognition has been given to less than the current 60% so it is not beyond the realms of possibility that in future less than 50% could score but there would have to be very good reason for it.

For the change, you can thank (or curse, if you are landlord) the Tenants' Associations (Provisions Relating to Recognition of Information) (England) Regulations 2018 SI/2018/1043.

But how do you get to the magic 50%? In large blocks, the occupiers may be elusive or persons to whom the premises have been let by the tenant who holds the main lease. You may not have a clue with whom you should be communicating. Another change here by courtesy of the new regulations. If the landlord is asked to do so in writing by the association's secretary, then they must provide the secretary with contact details of all qualifying tenants - so long as they consent - for the purpose of ascertaining whether they wish to join the association.  

The new regulations  also specify what matters the tribunal should take into account when deciding whether to issue a recognition certificate - or cancel it.

Much more tenant v landlord stuff in Breaking Law. 

Good News For Tenants in Houses and Flats in Multiple Occupation

Landlords who let a house or flat in England to more tenants than may be comfortable could be in for a shock. The law on these properties being registered with the local housing authority as being in multiple occupation has changed as from 1 October 2018 under the Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 SI/2018/ 221. Mandatory registration had been required for a house which had at least three storeys and was occupied by at least five people in two or more separate households. Now, a house with just one storey or more which is occupied in this way must be registered.

When it comes to flats, mandatory registration was required for large flats in multiple occupation above and below business premises which comprised at least three storeys. Less than three flats in the building will now do. What are targeted are not developments with large purpose built flats above commercial premises but flats above shops on traditional high street locations. 

Here's the punchline. If the landlord should have registered but has failed to do so, they -

• commit a criminal offence

• can be ordered to repay you rent ( see http://www.breakinglaw.co.uk/search/label/rent%20repayment%20orders) and

• (for some this could be the best bit) cannot give you a valid notice to get out under section 21 of the Housing Act 2018 which applies to assure shorthand tenancies.

If you think the landlord should have registered but may not have done so then check with the local housing authority.

Other laws also in force on 1 October 2018 but in England only extend the conditions to which multiple occupation licences will be subject to cover minimum sleeping standards, maximum occupation of rooms and domestic waste. They are the Licensing of Houses in Multiple Occupation (Mandatory Conditions of Licences) (England) Regulations 2018 SI/2018/616.

There's loadsalaw on landlord and tenant rights and disputes in my book Breaking Law which I haven't plugged for a couple of minutes.

Motor Insurers' Bureau to Appeal 'Private Land' Judgment

For the story so far see http://www.breakinglaw.co.uk/2018/10/motor-insurers-bureau-liable-for.html

The MIB has been granted permission to appeal the decision which went against it to the Court of Appeal. In the meantime, any application to the MIB to pay 'private land' accident compensation will be halted pending the appeal's determination.

Service Charges: How To Pay AND Challenge

You love those service charges for your flat or (sometimes) your house, don't you? Almost as much as a bellyache or dentist's drill without an injection. You can have a go at challenging them to a first-tier tribunal. That's under section 27A of the Landlord and Tenant Act 1985 and if you take a look at http://www.breakinglaw.co.uk/2018/07/service-charge-challenges-avoiding.html you will see how it works and how it has worked very well indeed for a number of lessees who have had a go although, as I have explained, there could be a danger for you on costs if your challenge is unsuccessful.

But say you have already paid or admitted that you are liable for the service charge demand you have grown to hate? You are precluded from a tribunal challenge if you admitted you owed the service charge or if the court (it will almost certainly be the county court) has given judgment against you for the service charge about which you are arguing. But you will not be treated as having admitted the charge simply because you paid it. There will need to be some evidence other than payment to show you agreed it.

There are lessons to be learnt about how you,  a lessee, should play things,  from a tribunal appeal in Marlborough Park Services Ltd v Leitner [2018] UKUT 230 (LC) where judgment has very recently been given. 

First, if you have a court judgment against you for the service charge and it was obtained by default - you failed to put in a defence and so there was no hearing about the merits of the claim - then apply to the court for the judgment to be set side. If the judgment is set aside, the probability is that the issue about the reasonableness of the service charge will be transferred to the tribunal. Then the way will be clear for your challenge as the court judgment will have gone.

Second, if you want to pay the service charge despite intending to challenge it - you  might be under some pressure from your mortgage lender to pay because forfeiture proceedings are threatened by the lessor if the service charge is not settled - then either wait until you have issued a tribunal application before settlement or make it abundantly clear to the lessor when settling that you dispute liability for the charge. 'This charge is an affront to decency. It is exorbitant, unreasonable and a disgrace. I challenge every new and old pence of it with every fibre of my body and will be taking my challenge to the first-tier tribunal (property chamber). I am paying strictly without prejudice and my action is not and is not to be taken as an agreement to or admission of the charge for the purpose of section 27A(4) of the Landlord and Tenant Act 1985.' That should do!

Must go. the dentist's receptionist has called me.

Motor Insurers' Bureau Liable For Vehicle Accidents on Private Land

The Motor Insurers' Bureau is a very fine bureau. And that's despite the fact that it is funded by motor insurers! It is very fine because, as a general rule, if you are personally injured due to the fault of a motorist who was uninsured or cannot be traced then the Bureau will pay you the compensation which would otherwise have been paid had the driver been insured and identified. In some cases, it will pay for property damage as well.

The High Court has just ruled that the Bureau must pay out the victim not only where the accident has occurred on a road or other public place but on private land. The decision came in a case called Lewis v Tindale and others [2018] EWHC 2376 (QB) where the hapless Michael Lewis had been seriously injured in a field. The uninsured driver had travelled in his Nissan along a road, then a footpath and then, quite deliberately, through a barbed wire fence and into the field where Mr Lewis was standing. The Bureau contested the claim that it should have to pay up (so not all that fine on this occasion) but the High Court decided otherwise.