LEGAL UPDATE
MacDonald Botley Park HOTEL
4th June 2014
PRESENTED BY
ROBERT BOLWELL
ODD ONE OUT
Eric Pickles MP
Mark Prisk MP
Kris Hopkins MP
Paul Flowers
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ALL CHANGE FOR THE
REGULATORS
OFT/RIP
• Abolished on 31 March 2014
• Competition and Markets Authority (CMA)
• HM Revenue & Customs
• Powys County Council
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WHO DOES WHAT
• Competition and Markets Authority
• Mergers and acquisitions
• Guidance on codes of conduct and unfair
contract terms
• Consumer protection from unfair trading
• Competition issues (e.g. cartels)
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Mission Statement
“Our mission is to make markets work well in the interest of
consumers, businesses and the economy, and our overall ambition is
consistently to be among the leading competition and consumer
agencies in the world”
• Budget of £50 million p.a
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WHO DOES WHAT?
HM Revenue And Customs
•
Money laundering
– proceeds of Crime Act 2002
– terrorism Act 2000
– money Laundering Regulations 2007
•
•
Registration
Core obligations
i) identify & manage risk of possible exploitation
ii) nominated reporting officer
iii) commit resources
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• Actions needed
i) risk assessment
ii) policy statement on how that risk is managed
iii) train staff
iv) regular review
v) keep records for 5 years
• In practice
i) identify customers and beneficial interests
ii) sources of finance
iii) unusual requests e.g. multiple buyers/sellers of a single
property
iv) non face to face clients
National Crime Agency – 020 7238 8282
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WHO DOES WHAT?
Powys County Council
• Public register of Estate Agents
• Banning orders if not “fit and proper”
• National Trading Standards Estate Agents Team
• £170,000 annual budget
i) three new staff
ii) £20 million in cuts for the County
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SUPERSTRIKE LTD v
RODGRIGUES
• Tenancy a year less a day starts 8.1.2007
• Non registration of deposit
• Statutory periodic tenancy – S.5 Housing Act 1988
• S.21 Notice
• Grounds of Appeal
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THE LEGAL ARGUMENT
• Did the “roll over” constitute a new tenancy?
• If so, had the deposit been “received” at the start of the new
tenancy?
• N and D (London) ltd-v-Gadson 1991
• S.5 Housing Act 1988
• S.212(5) Housing Act 2004
• Legal obligations at end of tenancy
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DEREGULATION BILL 2014
S. 215A
1)
A tenancy deposit shall not be treated as being paid or received in
connection with a shorthold tenancy by reason only of the
deemed grant of a statutory periodic tenancy pursuant to the
provisions of section 5(1) of the Housing Act 1988 (“the 1988
Act”).
2)
Subsection (1) shall apply (and shall always be deemed to apply)
in respect of any tenancy deposit whenever it was paid or received
whether before or after the coming into force of sections 212 to
215 of the Housing Act 2004 (“the 2004 Act”).
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3) Where (a) a tenancy deposit has been received in relation to a
shorthold tenancy 1under a tenancy (“the original tenancy”);
(b) the original tenancy was granted as a fixed term tenancy;
(c) the original tenancy commenced before 6 April 2007
(d) immediately upon the expiry of the fixed term of the
original tenancy a statutory periodic tenancy was deemed to be
granted pursuant to section 5(1) of the 1988 Act;
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(e) the initial requirements (as defined by section 213(4) of
the 2004 Act) have not been complied with in respect of that
tenancy deposit; and
(f) no event has occurred on or after 6 April 2007 which would
otherwise require that tenancy deposit is to be protected
in accordance with an authorised scheme under section 213
of the 2004 Act the provisions of subsection (4) shall apply to
that tenancy deposit.
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(4)
The initial requirements under section 213(4) of the 2004 Act and
the requirements of section 213(6) of that Act (relating to
prescribed information) must be complied with in respect of any
tenancy deposit referred to in subsection (3) within 3 months of
the date when the provisions of this Act come into force.
(5)
The expressions “tenancy deposit” and “shorthold tenancy” in this
section shall have the same meanings as for the purposes of
sections 212 to 215 of the 2004 Act.
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SPENCER v TAYLOR
• AST 6 months from 6th February 2006
• Periodic after 5th August 2006
• Rent paid weekly on a Monday
• Notice under S.21 (4) (a) to expire on a Saturday
• Saving clause – see Lower St. Properties v Jones
• Confusion?
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S.21 (1) (b) NOTICES
• 2 months to expire any time after the fixed term ends
• “MAY be given before or on the day on which the tenancy comes to
an end”
• May = permissive NOT proscriptive
• Fernandez v MacDonald (2003)
• S.21 (4) (a) notice if tenancy periodic from the start?
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IMMIGRATION BILL
• Applies to tenants in residential property used as main or sole
residence (i.e. AST’s)
• Exempt nationals:
-UK
-EEA (i.e. EU plus Iceland Liechtenstein and Norway)
-Switzerland (?)
• “Right to Rent” at start of let
• £3000 penalty per individual
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• Defence
– Good forgeries
– Agent agreed that landlord would do checks
• Be prepared
– Check status of all tenants
– Let landlords know
– Informant status
• Support
– Telephone enquiry line
– Website
– Credit reference agencies
• Start date?
– Royal Assent 14th May 2014
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CONSUMER CANCELLATION
RIGHTS
• Contracts entered into on or after 13 June 2014
– Consumer
– Individual (acting outside normal trade)
• Exemptions
– Finance
– Food and drink
– Gambling
– Construction projects
– Rental accommodation
– Anything over £42
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• On/off premises and distance selling
– Information
– 14 day cancellation (off premises and distance selling)
– Guarantees?
• Durable medium
– Schedule 1 – on site
– Schedule 2 – off site and distance selling
– Schedule 3 – cancellation rights
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QUESTIONS?
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