Landlord and Tenant Law is a minefield for unwary solicitors

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Speaking purely from a legal point of view it isn’t a great time to be representing landlords. There has recently been a spate of cases that have gone against landlords following poor advice from solicitors, opening the way for professional negligence claims to be brought against the lawyers.

The first case concerned the Occupiers Liability Act 1957. This Act states that anyone who owns property owes a duty of care to people who visits their property, be it a visitor or trespasser, to ensure that no harm comes to them. It is as a result of this Act that owners stopped the practice of embedding glass into the top of their walls to prevent burglars.

In Drysdale –v- Hedges [2012] EWHC B20 (QB), the High Court had to decide whether the Act also applied to tenants. In this case, the landlord had recently repainted the front steps of the house upon which the tenant slipped and injured himself. The Occupiers Liability Act 1957 had originally imposed a duty upon a landlord but this was subsequently replaced by s4 of the Defective Premises Act 1972. Unfortunately, the tenant could not bring a claim under this Act as the redecoration works had been carried out correctly, so his solicitors tried to bring a claim under the Occupiers Liability Act 1957. The High Court made a clear ruling that the Occupiers Liability Act could not be relied upon. The tenant did plead an alternative viz the landlord owed him a duty in common law but again, as the steps had been redecorated correctly, the tenant lost in that instance.

Given that any solicitor specialising in Landlord & Tenant work should know that the duty upon Landlords under the OLA has been superseded by the DPA, I am surprised that this line of argument was attempted. It will be interesting to see whether professional negligence proceedings will be brought against the solicitors.

The second bevy of cases that are causing lawyers problems arises out of the Localism Act 2011 that came into effect in April of this year. Under this Act, new provisions have been brought in to protect a tenant’s deposit. Within 30 days of receipt, the deposit must be placed in a designated tenant deposit scheme and, under s213 of the Act, a Notice containing prescribed information has to be served on the tenant. Failure to provide such a Notice or to protect the deposit means that the Landlord may have to pay a penalty of up to three times the value of the deposit. Even if the deposit is deposited outside the 30 day period, this will still cause problems for the landlord as he will not be able to repossess the property under s21 Housing Act 1988 unless he returns the deposit to the tenant before serving the Notice to quit.

This is a change to the previous scheme which had been watered down quite considerably by various judicial decisions. In the recent Court of Appeal decision in Ayannuga –v- Swindells [2012] CA (Civ) 6, it was seen that the Courts are not going to be able to drive a coach and horses through this new scheme.

In this particular case, although the landlord had protected the deposit, he had failed to serve the Notice of Prescribed Information. His legal team issued court proceedings for possession of the property and tried to argue that the Notice was a mere formality, that the purpose of the Act was to protect the tenant’s deposit and it had been fully protected in this instance. The Court of Appeal disagreed, stating that the Notice was a key part of the legislation and had to be complied with. The claim was struck out and the landlord was ordered to return the deposit and pay the full penalty plus of course costs.

It is clear therefore that any solicitor dealing with Landlord & Tenant work must be very careful in checking that all the paperwork has been properly prepared.. If it hasn’t, the solicitor must advise the landlord to return the deposit in full before a s21 Notice can be served. Already (given the legislation only came into effect this April), our professional negligence solicitors have been instructed on two cases where solicitors have not done this, either giving poor advice about the Tenancy Deposit Scheme or, as in this case, failed to check the s213 Notice.

If you have fallen victim to solicitors negligence and need FREE initial advice give us a call on 0808 139 1606