The rumblings of the Superstrike case continue

The rumblings of the Superstrike case continue, with a tenant defeating a notice to quit in a hearing at Birmingham County Court.

It’s not clear from reports of Gardner v McCusker 3BM70525 whether the notice served was under 21 (4) (A) for a periodic tenancy or a 21 (1) (B) for a fixed term and whether the Section notice was invalid simply because the agent had used the wrong one.

What is clear, however, is the landlords or their agents must ensure they re-serve prescribed information when a tenancy changes from an assured shorthold to a periodic.

The tenant, McCusker, agreed a fixed term for six months in November 2009. There was a deposit of £600, protected in the MyDeposits scheme in January 2010. There were various attempts to serve the prescribed information between November 2009 and September 2012. In May 2010, the fixed term tenancy expired and a statutory periodic tenancy arose. In March 2013, a notice under s.21, Housing Act 1988 was served. Possession proceedings were issued and met with a defence and counterclaim contending that there had been, inter alia, no service of the prescribed information in respect of the statutory periodic tenancy.

The court regarded the failed attempts to serve as non-service, the claim by the landlords (Gardner) for repossession failed, and they were ordered to repay the deposit and a penalty, a total of £1,800, plus costs, some of which were offset against rent arrears.

The moral of the story is that after an AST ends and the tenancy becomes periodic it must be regarded as a new tenancy and although the deposit is not subject to any specific transfers between parties again and remains with the deposit scheme it is regarded as a new deposit in law.

Superstrike and its ramifications are still under consideration by the Government with a view to legislative change but until this occurs a belt and braces approach must be taken with all prescribed information served again successfully in order to protect the landlord’s rights should repossession become necessary.


Lisa Simon, 
Partner
Head of Residential Lettings
T: 020 7518 3234 
E: lisa.simon@carterjonas.co.uk

Stay safe with electricity

Electricity is a powerful thing - we all rely on it being there and assume it is, even though we can’t see it.

But all electrical installations deteriorate with age. If things go wrong we can certainly feel it and its potential to be instantly lethal is perhaps greater than any other source of danger in a domestic property.

The most recent figures available, for 2010, reveal that 422 people died in England, Scotland, or Wales from electrocution and/or fatal electric burns suffered at home. Electrical fires in homes resulted in 48 deaths and 3,324 injuries.

Landlords are required by law to ensure:

• That the electrical installation in a rented property is safe when tenants move in and maintained in a safe condition throughout its duration
• The appliances supplied, such as cookers and kettles, are safe
• That a House in Multiple Occupation (HMO) has a periodic inspection carried out on the property every five years
• That any appliance provided is safe and has at least the CE marking (which is the manufacturer’s claim that it meets all the requirements of European law)

To meet these requirements, a landlord will need to regularly carry out basic safety checks to ensure that the electrical installation and appliances are safe and working.

Carter Jonas recommends an Electrical Installation Condition Report (EICR), a condition report which confirms as far as reasonably practicable whether or not the electrical installation is in a satisfactory condition for continued service and suggests it is carried out every five years on every rental property rather than just HMOs. This is in line with recommendations from both the Government and Electrical Safety First. The report will also identify any damage, deterioration, defects and/or conditions which may give rise to danger.

We also recommend an annual test delivering a Portable Appliance Testing certificate (PAT) on all portable appliances in furnished properties.

When appliances are supplied with a property, it’s important that operating instructions are also supplied and that they are still at the property when there’s a change of tenants. Best advice is to minimise the number of appliances.

There is no statutory obligation on landlords or agents to have professional checks carried out on the electrical system or appliances. However, under Common Law and various statutory regulations: The Landlord and Tenant Act 1985, The Housing Act 2004, The Electrical Equipment (Safety) Regulations 1994, and the Plugs and Sockets etc. (Safety) Regulations 1994, both of which come under the Consumer Protection Act 1987, there is an obligation to ensure that all electrical equipment is safe.


Lisa Simon, 
Partner
Head of Residential Lettings
T: 020 7518 3234 
E: lisa.simon@carterjonas.co.uk