Rights As A Tenant In A Private Rented Property

A tenancy agreement sets out the rights and responsibilities between the landlord and tenants. In the unfortunate event where an issue arises then the tenants should refer to the tenancy agreement. Tenants have additional rights which are not always set out in the tenancy agreement.  To give an example, the House in Multiple Occupation (HMO) licensing.

We have set out below the key points that tenants should be aware of when renting a property.

Additional fees 

The Tenant Fees Act came into force on 1st June 2019 and the centre of this rule is that it prevents landlords from charging tenants with extortionate fees. The landlords are allowed to charge the tenants rent, tenancy deposit, and or a holding deposit.

Under the Tenant Fees Act, landlords are no longer allowed to charge tenants the cost of their own references or police checks, general administration fees, or cleaning fee. Landlords who charge fees that fall outside of the Tenant Fees Act may be liable to pay a fine of £5,000 however if the landlord repeats the breach, then this could lead to a criminal charge or a fine of £30,000.

However, the landlord can charge certain fees provided that it is written into the tenancy agreement, these are set out below:

  1. Late Rent Fees

Landlords can charge fees for rent payments that are due over two weeks. The fees can be charged up to 3% plus the Bank of England base interest rate.

  1. Default Fees

This includes the tenant losing a key or damaging the property. The tenant can only be charged a reasonable amount as long as the evidence of the cost can be provided.

  1. Changes to Tenancy Fees

Landlords can charge up to £50 for making changes to the terms of the tenancy agreement. This can include changing a tenant’s name or allowing a pet.

Disrepair  

Under section 11 of the Landlord and Tenant Act 1985, landlords have the obligation to keep

the property in a habitable state for the tenants to reside in. This includes heating, hot water, access to power supply, water, etc.

These repair obligations cannot be changed by any terms written into the tenancy agreement and landlords cannot charge tenants for any repairs that fall under their mandatory obligations.

However, tenants would usually be responsible for the maintenance of the property. This includes the general upkeep such as changing the lights, unclogging sinks, gardening, and cleaning.

Should a tenant experience any disrepair issues such as mould, no heating, no hot water, etc then they should first report this to the landlord immediately.

If the landlord refuses to carry out the repair works then the tenant has various options available to them such as reporting to the local council and or issuing proceedings against the landlord.

House in Multiple Occupation License

The Housing Act regulations ruled that an HMO license is required for any house or flat that is occupied by five or more people who are not all related and live in the property as their main home. Landlords are therefore obliged to apply for a license application at the local council if the property needs licensing.

Ignoring the rules would result in the landlords paying a heavy price. There would be a risk of being prosecuted by the council and if found guilty landlords could get a criminal record, and be fined an unlimited amount. Alternatively, tenants can apply for a Rent Repayment Order and the landlord may have to repay up to 12 months of rental income.

Deposit

Deposits were collected as part of the renting process and landlords are obliged to pay the tenants’ deposits into a deposit protection scheme. This deposit protection was introduced on 6 April 2007 as part of the Housing Act 2004 and these protection schemes offer a free service to help resolve deposit disputes between the landlords and tenants.

When a deposit was not protected under a scheme and no further information was provided by the landlord, tenants can apply to the County Court for an order that the landlord returns the deposit back or protect it under one of the tenancy deposit protection schemes.

There are rules on what costs can be deducted from the deposit. And the landlord cannot, in general, charge for the costs of maintaining the wear and tear of the property. The usual costs can include deductions for (1) damage to the property and missing or broken items, (2) cleaning fees, and (3) unpaid rent or bills.

If tenants disagree with how the deposit is returned, or the tenant does not agree with some of the costs that landlords have taken out of it, tenants must ask the landlord for a breakdown of the specific costs which were taken out of the deposit.

In the case where an agreement could not be reached between the landlord and tenant, the parties can propose to use the free alternative dispute resolution service offered by the tenancy deposit scheme.

Under the alternative dispute resolution service, the parties are required to accept the decision made and will not be able to apply the decision to the courts. If on the contrary the landlord or tenant does not agree to use the dispute resolution service, then the dispute will usually go to the County Court.

If you require assistance in relation to private renting disputes, or you would like to learn more about the rights and obligations shared between landlords and tenants in private properties, please feel free to contact us and we can discuss and advise on your best way forward.

 


Methods of Enforcing Your Court Judgements

A winning party (“judgment creditor”) may obtain a judgment for a lump sum from the losing party (“judgment debtor”) however, this does not necessarily mean that the judgment debtor will voluntarily pay what is owed under the judgment.   The burden is on the judgement creditor to take enforcement steps.

If the judgment debtor fails to do so voluntarily by the date determined by the court, then the judgment creditor would need to consider commencing enforcement actions in order to seek recovery of the money owed to them under the judgment.

It is vital for judgment creditors to investigate the judgment debtor’s assets / financial position first before commencing lengthy litigation proceedings.

We have briefly set out below a number of enforcement methods a judgment creditor may commence upon receipt of a court judgment.

  1. Taking control of goods is suitable when the judgment debtor owns assets, and this allows an enforcement officer to seize the judgment debtor’s goods and sell them in order to use the proceeds of sale to satisfy the judgment debt. Goods that are exempt include the basic domestic needs and tools of trade. The County Court dealt with debt sum up to £600 and the High Court dealt with debt sum of more than £5000.
  2. Third-party debt orders allow the court to intercept money that is owed to the judgment debt, such as credit balance in the judgment debtor’s bank account and divert this to us in settlement of the judgment debt.
  3. Charging orders are suitable where the asset in question is considered a land, but this only provides security for the judgment debt and not payment. For payment, an order for sale will be necessary after the charging order has been obtained.
  4. Attachment of earning orders enables the judgment debtor’s salary to be intercepted and diverted to us in settlement of the judgment debt. It is important to bear in mind that only a small percentage will be deducted from their salary so if the judgment debtor is on a fairly low income then it could sometime before the debt is repaid.
  5. Insolvency proceedings are another effective way to obtain payment. The threat of bankruptcy of an individual or winding up of a company can often be enough to prompt payment, should the judgment debtor has assets available to pay.

If you have a judgment debt that you wish to enforce or require assistance in obtaining a judgment, please contact us. Our experienced civil and commercial litigation team can advise the best course of action for your case and commence the enforcement proceedings on your behalf to assist you in recovering the judgment debt.

Our experienced civil and commercial litigators have many years’ experience in supporting businesses and individuals through challenging times. We have provided a speedy, effective debt recovery services to all our clients’ needs.

Across our team, we speak many languages including Mandarin and Cantonese, Gujarati, Russian, Portuguese, Korean and Spanish. With access to our solicitors at two locations, one in City and one in Mayfair, we cover a very broad spectrum of varying clients needs.


New Divorce Laws - "No-Fault" Divorce

New Divorce Laws - "No-Fault" Divorce

The Divorce, Dissolution and Separation Act 2020 came into force in England and Wales on 6 April 2022 and this signified a major development of England’s divorce laws for the past 50 years.

Key changes made under the new Act:

  • The need for the married couple to prove the irretrievable breakdown of marriage by citing grounds of unreasonable behaviour and separation was replaced by a sole or joint statement.
  • The statement of irretrievable breakdown of marriage serves as a piece of conclusive evidence for the court to make an order and this prevents a spouse from contesting the divorce.
  • A minimum period of 20 weeks between the start of divorce proceedings and the application for conditional order was introduced.
  • New language has been adopted to facilitate a better understanding of the divorce application.

Referring to the first point, the new divorce application introduced a “no-fault” basis which completely replaced the requirements under the previous divorce laws. This is because the previous divorce laws required divorcing couples to prove the irretrievable breakdown of their marriage by citing one of the five existing grounds, these can be referred to as:

  • Adultery
  • Unreasonable behaviour
  • Dissertation by one party
  • Two years separation with the consent of the spouse; or
  • Five years separation without consent

The previous divorce laws made it difficult for married couples who wanted their divorce to be settled in the most peaceful and straightforward manner. This is because the previous rules adopted a “blaming” basis and therefore couples looking to divorce must either put a blame on one another for the breakdown of their marriage or they must carry out a long-term separation to satisfy the requirements. Inevitably, this caused unnecessary stress and animosity which in turn encouraged potential conflicts between the divorcing parties.

Under the new divorce laws, couples can sign a sole or joint statement of irretrievable breakdown of the marriage to begin the application. This completely removes the need to blame each other or to give reasons for the breakdown of the marriage. Except for certain exceptional grounds, the statement also prevents a spouse from contesting /defending the divorce petition as it serves as a piece of conclusive evidence.

The new rules also introduce a new minimum period of 20 weeks between the start of the divorce application (signing the statement) and the application for the conditional order. When the conditional order is granted by the court, there is another period of 6 weeks before we can apply for the final order of divorce. This change effectively provides the divorcing parties a period to reflect and reconsider their decisions. However when a divorce is inevitable, this also allows the parties time to plan and cooperate on the practical arrangements surrounding the divorce such as financial and children matters.

A change in divorce law has been long-awaited as many would think the previous laws to be outdated, simply increasing animosity and stress in already difficult circumstances. However, the law in respect of financial provision for divorce will remain the same.

We at Chan Neill Solicitors relate to the emotions and stress often involved during the divorce proceedings and our experienced Civil Litigation team can assist in guiding you through every step of the divorce process. Please contact us and we can discuss your best way forward.

 

 


What should I do if I get into a car accident with a uninsured driver in the UK?

What should I do if I get into a car accident with a uninsured driver in the UK?

‘Have you been involved in a road traffic accident that isn’t your fault?’ This is a familiar question that we often hear from adverts. However, what happens if you were involved in a road traffic accident with a driver that was not insuredin the UK? In the absence of the insurers for the responsible party, is it still possible to make a claim and possibly get compensation for your injuries resulted from the accident?

The Motor Insurers’ Bureau are a non-profit-making company set up by motors insurers, who have entered into agreements with the UK government to compensate victims of motor accidents caused by uninsured drivers. The Road Traffic Act 1988 requires that every motor insurer must be a member of the MIB and must contribute to the funding of the MIB. The time limit to submit a claim is the same as road traffic accident claims against injured drivers – within three years of an accident if claiming for personal injury. In the case of injury for children, the three year time limit commences on the 18th birthday.

On the claim form, the MIB will ask you to provide details to learn more about your involvement in the accident, details of the parties involved, details of the accident, details of police involvement, witnesses, details of your claim, and any associated personal injury as a result of your accident.

Once the claim has been submitted to the MIB, you or your legal representatives will be contacted and an investigation will commence. The investigations by the MIB are to establish the facts, confirm the identity of the parties involved, obtain independent reports from motor engineers or witnesses, obtain a police report, and contacting other bodies such as the DVLA, your insurer, or a foreign bureau. If you are claiming for personal injury, the MIB may need to obtain copies of your medical records from your GP and hospital you attended after the accident. The MIB may also need to obtain an independent medical report to assess your injuries caused by the accident.

The MIB will compensate you once a causal link is established between your injuries and the negligence of the driver that you consider responsible.

Many solicitors provide services on a conditional fee agreement (also known as a “no-win-no-fee”) basis, which means you only have to pay for the legal services if your claim succeeds. For example, at Chan Neill Solicitors LLP, subject to conditions and eligibility, we take on no-win-no-fee cases for personal injury claims.

Chan Neill Solicitors LLP is one of the leading law firms in London which houses an established Personal Injury practice. Our experienced team of lawyers can offer specialist advice and provide solutions. If you would like to learn more about our Personal Injury practice, please visit https://www.cnsolicitors.com/practice-areas/personal-injury/.

If you have any enquiries, you can fill in and submit the contact form at https://www.cnsolicitors.com/contact-us/. You can also contact reception at 020 7253 7781.


How do I evict a tenant to regain possession of my property?

If there are tenants in your property and you need to evict because of rent arrears, nuisance or for personal reasons to move back in to the Property or to sell it. Chan Neill Solicitors are able to assist to regain possession of your property from preparing the relevant notice, and if necessary, issue possession proceedings, provide representation at court and instructing bailiffs.

 

The Procedure of the Eviction Process

Firstly, we will need to know what type of tenancy that you have with your tenant.  In most cases, the tenancy is as assured shorthold tenancies.  We would check whether the tenant is on a fixed term tenancy or periodic (rolling month to month)

 

There is a three stage process to evicting tenants:

 

  • Notice
  • Issue court proceedings to obtain an order for possession
  • Bailiffs

 

1) Which Notice: Section 21 or Section 8 notice?

 

Subject to the type of tenancy that you have with your tenant and the reason you want to evict your tenant will depend upon which notice would be most suitable for your personal circumstances.

 

Whilst these notices are independent of each other and served for separate reasons, they provide the same result- we recover your property back.

 

Section 21 notice

 

Section 21 is a no fault basis whereby you are not compelled to provide reasons for eviction.  A Section 21 notice is usually served when the tenancy is coming to the end of the fixed term or if the fixed term has expired (periodic tenancy).

 

There are a number of requirements that you must comply with first before a valid Section 21 notice can be served on the tenants, these are:

 

  • An Energy Performance Certificate (EPC)
  • How to Rent Booklet, this guide must be given to a tenant at the start of any new tenancy
  • A Gas Safety Certificate

 

If a deposit was taken, then this must be protected within the requirement period. Failing to protect the deposit on time (within 30 days of receipt) will invalid the Section 21 notice.

 

A Section 21 cannot be served because the tenant has raised any housing disrepair issue.

 

The notice period for a Section 21 is 2 months.

 

Section 8 notice

 

A Section 8 notice is used where the tenant has breached the terms of the tenancy.  The notice must state the grounds that you are seeking possession of the property.  Landlords usually use the Section 8 procedure where a tenant is in rental arrears.

 

The notice period for Section 8 can be between 2 weeks to two months, depending on the terms of the tenancy / grounds.

 

2) Issuing Proceedings to obtain Possession order

 

In the event that the Tenant does not vacate the property after receipt of the notice, the next stage is to issue possession proceedings.

 

We can prepare the possession claim form on your behalf and issue it at the Court.  Depending on which grounds you are seeking possession, we can then determine whether we can apply for possession via the accelerated route or the standard route for you.

 

3) BAILIFFS

 

If we are successful in obtaining an Order for Possession and the tenants still refuses to vacate the property, we can seek recovery of the property for you with the help of bailiffs.

 

Should you wish to discuss any of the matters talked about above or if you wish to look to instruct us, please contact us. Our team speak English, Mandarin, Cantonese, Spanish, Portuguese, Russian etc. Our offices are in Mayfair and the city should you wish to see us in person.

 


How Can I Recover Debts Owed To Me Or My Company?

If money is owed to you by either a business or individual Chan Neill Solicitors is able to assist in recovery of this money dealing with anything from letters of claim up to, and if necessary, the issue of legal proceedings and providing representation at court.

The Procedure of Recovery of Debt From an Individual or Business

The first step when looking to recover a debt is for our lawyers to understand what the debt refers to, the amount that is owed and a full breakdown of that figure.  We would also need to know any interim or part payments that may have been made for that debt or if any response has been received from the debtor in relation to the money owed.

Once we are satisfied that you do have a claim against a debtor the next step is to draft a letter of claim.  The content and structure of the letter of claim differs as to whether the claim is against an individual or a business.

Claims Against an Individual

If you are looking to pursue an individual for monies owed then the letter of claim needs to contain certain information including, but not limited to, the amount that is owed, a full breakdown of the figure, the amount of interest owed and the costs that would also be payable if proceedings are issued.  It is also necessary to include with the letter of claim a copy of a reply form and information sheet.  The individual must also be given 30 days from receipt of the letter of claim in which to respond before any legal action can be taken.

If an individual does respond to the letter of claim either on the reply form sent or by email/telephone, we would be obliged to act reasonably and in a cooperative manner when dealing with them.  What this means that if, for example, the debtor wished to repay the debt but only could afford to do so over an extended period of time because of financial commitments then we would be obliged to negotiate and cooperate with them in this regard.  Should the court discover that we haven’t been cooperative then we risk our claim being struck out if legal proceedings are issued prematurely.

In terms of claiming debt from a business the rules are more relaxed.  It is not necessary to allow a business 30 days in which to respond and you just have to afford them a reasonable period of time i.e. 14 days before you can issue legal proceedings.  The business does also not need to be sent the relevant paper work an individual would or be provided an estimate for the costs and interest if legal proceedings become necessary.

Issuing Proceedings

If the letters of claim are ignored then legal proceedings may be the only option.  Depending on the value of the amount that is owed will depend on the cost of issuing the proceedings (the issue fee) and the legal costs (solicitors fee).  Should the amount owed be above £10,000.00 then the legal costs can potentially be recovered from the other side on top of the debt.

Below are the different type of claims depending on the size of the debt.

Small Claims Track – claims below £10,000.

Claims below £10,000 are processed under the small claim procedure in England and Wales. This procedure is one of the most cost-effective solutions. However, the costs of these proceedings are almost never fully imposed on the losing party.

Fast Track – Claims between £10,000 and £25,000.

The fast track procedure deals with undisputed cases with a value between £10,000 and £25,000. As these proceedings often take more time to process than the small claims track, the costs of this procedure are often (partly) passed on to the losing party.

Multi Track – claims above £25,000.

For complex or disputed claims above £25,000, the multi-track procedure should be followed. On average, these procedures take longer than small claims and fast track procedures. In this procedure, the judge can also decide that the losing party must pay all legal costs.

After Judgment Obtained

If we are successful in obtaining Judgment either in default or after a hearing/trial then we can actively seek to look to recover the money for you with the help of bailiffs (if necessary) or potentially by way of charging order if the debtor owns a property.

Should you wish to discuss any of the matters talked about above or if you wish to look to instruct us, please contact us. Our team speak English, Mandarin, Cantonese, Spanish, Portuguese, Russian etc. Our offices are in Mayfair and the city should you wish to see us in person.


How to look out for scammers and what legal action should you seek?

For the majority of overseas investors to UK companies, hopefully the investments have proven to be lucrative and or provided you with the ability to meet home office conditions. A small percentage of you however are falling victim to very unscrupulous people.

Here is one case we wish to example were we have assisted an investor and an innocent customer with.

The investor was advised that in order to help him comply with immigration visa rules, he could invest in a business opportunity and become a director and Tier 2 employee of a UK limited company. He would also obtain shares for his investment.  The investment was substantial and had been paid to the directors personal bank account on the directors request. Over a period of time, suspicions arose that the monies invested were not being used for the company. However the investor had no access to company bank accounts and so could not confirm his suspicions and he was kept being promised his shares will be transferred to him. A friend of the investor entered an agreement with the company to sell his goods. The goods were sold but the sale monies were not given back to the customer, but kept by the company . The director offered instead a repayment plan to the customer. No sale monies were ever returned. At this point the investor realised all his suspicions must be real.

The only way forward was to legally reclaim what the investor and customer had lost. The director of the business however placed the company into liquidation. The director thought this would stop any claim for the investment monies or sale proceeds. Normally creditors of a company have to stand in line for anything a company in liquidation can offer them back. Usually there is no monies to offer creditors and they lose everything.

However with our experienced help and legal advices, the claimants have been able to pierce the corporate veil and go after the director personally for the monies owed. This is a very difficult argument to make before a High Court judge. With a lot of time, patience and explanation of what documents and witness evidence was needed, we issued a world wide freezing injunction on the director in his personal capacity and also a full claim for all the monies owed and invested. A High Court judge accepted the directors personal assets should be frozen world wide and judgement against the director in his personal capacity was also granted.

This has been a great relief to the investor and customer. Our ability to give them hope and strength to see this through has been appreciated. Rather than lose everything to an unscrupulous director, they have been able to stop this director from using the corporate structure from evading his liabilities.

We urge any potential investor to instruct lawyers from the beginning to do proper due diligence on who they are investing in and who with. When you are investing hundreds of thousands of pounds or millions of pounds, it is worth having lawyers do everything to advise and protect you before investment is made.

It will not always be possible to bring such an effective claim against a director who has been unscrupulous as detailed above and therefore we urge prevention is a better solution rather than reaction to a loss.

We do carry out due diligence work for overseas investors and would be happy to hear from you if you wish to have more information on your target investment.

We have listed commercial proceedings if you would like to know details of procedures for such litigation.

1, Appoint a solicitor -- provide your solicitor with timelines, documents and evidence of the case.

2, Draft and send the letters (pre-litigation) to defendant before making a claim.

3, Decide whether to initiate court proceedings (Issue the Claim), aslo considering whether it needs to make special applications before litigation, such as property freezing orders and property disclosure orders etc.

4, Prepare the prosecution file including claim application form, civil lawsuit (Particulars of Claim)

5, First appearance in court and prepare documents for court hearing.

6, Final Hearing and Judgment

If you do find yourself in a similar situation with an investment you have made as exampled above, please do contact us and we shall be happy to help.