Residential Tenancy Legal Update

Christian Robertson, Associate, Kitsons LLP

Tel: 01803 206208

E-mail: christian.robertson@kitsons-solicitors.co.uk

Introduction

Overview of Immigration Bill

Overview of Equality Act 2010

Repeal of Property Misdescriptions Act 1991

Snapshot overview of Immigration Bill 2013

Immigration Bill 2013 introduced 10th October 2013.If it receives Royal Assent then it will:-

Require banks to check the immigration status of customers applying to open an account.

Streamline the Immigration Appeals Process.

Require temporary legal migrants to contribute to the NHS.

Introduce new powers to check the immigration status of driving licence applicants.

Create stronger guidance for Courts on the use of human rights.

Demand private landlords check the immigration status of their tenants.

Purpose of Part 3 of Immigration Bill 2013

Purpose – stop rogue landlords cashing in from renting homes to illegal migrants, to compliment the Government’s ongoing work on “beds and sheds”.

Prohibitions – a landlord must not authorise an adult to occupy premises under a Residential Tenancy Agreement if the adult is disqualified as a result of their immigration status.

Sanctions

The landlord responsible for authorising a disqualified adult to occupy premises faces a fine not exceeding £3,000 for each disqualified adult they allow to occupy the property.

Defences available to a Landlord

A person acting as the landlord’s agent was responsible for the contravention

Blame it on the Agent – where the Agent acts in the course of business for the Landlord

Penalty Notices - Agents

Agent is under an obligation for the purposes of the Bill to comply with the prescribed requirements on behalf of the landlord.

Penalty payment not exceeding £3,000 per disqualified adult.

Defences available to Agents

An agent is excused from paying the penalty if the agent can show that the prescribed requirements were compiled with before the residential tenancy was entered into.

Defence is not available if the agent knew that the landlord was in contravention by entering into the agreement with disqualified adults or

Had an opportunity to notify the landlord of some fact before the landlord entered into the Agreement and did not do so.

Progress of the Bill

Last Event – report second sitting – House of Lords – 3rd April 2014

Next Event – report stage – House of Lords – scheduled 7th April 2014

Summary

Additional due diligence checks for agents if they are responsible for say finding a tenant.

Check immigration status of tenant– British Passport – EU Passport– Non EU Passport – check Visa at least for the period of the assured

term of the tenancy and regular checks thereafter.

Document what checks were undertaken and when.

Check terms and conditions of Retainer.

Take care not to discriminate.

Overview of Equality Act 2010

The Equality Act 2010 became law in October 2010.

Replaced previous legislation such as the Disability Discrimination

Act 1995 and Race Relations Act 1976 into one separate piece of

legislation.

Protected Characteristics

Illegal to discriminate on grounds of:-

AgeDisabilityGender Reassignment Marriage/Civil PartnershipPregnancy/Maternity Protected Characteristics RaceReligion/BeliefSexSexual Orientation

Discrimination

In its simplest form:-

Discrimination occurs when one person is treated less favourably

than another is treated or would be treated, in the same or similar

circumstances without legitimate reason.

Discriminatory Behaviors

JokesNot giving someone workMaking someone feel uncomfortable Not acting on complaintsNot listening to complaintsInsensitive use of language Not offering a service to tenant due to race.

Types of Discrimination

Direct Discrimination – when someone is treated less favorably than another because of a protected characteristic.

Discrimination by Association – where someone is discriminated because they associate with another person who possesses a protected characteristic.

Discrimination by Perception – where someone is discriminated because others think they possess protected characteristics whether or not they actually possess those characteristics.

Why do you need to be aware of the Equality Act 2010?

If you believe that discrimination or harassment is taking place, you must report it.

Be aware of your own actions, you may not mean to offend someone but it may happen.

You may be personally liable for your behavior if you do discriminate.

London letting Agents ‘refuse black tenants’

10 firms told BBC reporters posing as a landlord they would not let to African-Caribbean people at their request.

Black reporter was denied viewings, whilst white counterpart was welcomed.

“There are some agents who will say anything and do anything to close a deal”.

Source BBC News: http://www.bbc.co.uk/news/uk-england-london24372509

Repeal of the Property Mis-descriptions Act 1991

The Property Mis-Description Act 1991 – introduced 1993 (the “Act”).Consumer protection from Unfair Trading Regulations – May 2008 (the “Regulations”) The Act Repealed 1st October 2013

Regulations - Consumers

The Regulations prohibit a business from engaging an unfair commercial practices when dealing with “Consumers”

Consumers = Buyers but also include prospective buyers or those on viewings. Therefore Regulations apply to anyone YOU show around a property who could perhaps bring a grievance.

Unfairness

The OFT’s Guidance on Regulations states that this may arise from Given false or misleading information to ConsumersHiding or failing to provide material information to ConsumersExerting undue pressure on ConsumersEngaging in one of the 31 band practices

– e.g. misleading context effect of misleading actions and omissions aggressive sharp sales practices and misleading availability

Example

• Previous sale falls through because of a poor survey.

• Is the seller/AGENT obliged to point out survey to buyer?

• Caveat emptor – Buyer beware

Example Cont…

• Giving false or misleading information, hiding or failing to provide material information is a clear breach of Regulations.

• Reasonable Person – if a reasonable person is likely to be able to say that Seller or agent should have told me about a poor survey then Regulations apply.

• Caveat Venditor - Vendor/Seller beware!!!

Sanctions

The business – the person in charge or the employee or associate of the business may be subject to conviction or a fine.

on summary conviction, a fine not exceeding the statutory maximum (currently £5,000) on conviction on indictment, an unlimited fine or imprisonment for up to two years (or both)

Questions…

Torbay Office

Minerva House Orchard Way Edginswell Park Torquay Devon TQ2 7FAT (0)1803 202020F (0)1803 299831

Exeter Office

The Forum Barnfield Road Exeter Devon EX1 1QRT (0)1392 455555F (0)1392 455961

Plymouth Office

49 North Hill Plymouth Devon PL4 8HBT (0)1752 603040F (0)1752 601090

www.kitsons-solicitors.co.uk advice@kitsons-solicitors.co.uk

This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.

@KitsonsLAW KitsonsLLP