Author: Amarjit Atwal

Amarjit Atwal currently works in our conveyancing department.

Company directors beware: Deception can lead to disqualification

Posted on by Amarjit Atwal

build site

Last week two businessmen were sentenced at Winchester Crown Court for fraud and safety offences. The Department for Business Innovation and Skills (BIS) and the Health and Safety Executive brought joint proceedings against the pair after a worker died due to a lack of safety checks on a crane being used at a building site.

In September 2010 a two-tonne metal sand moulding box fell from a crane onto the 40 year old worker, crushing him to death. The Health and Safety Executive’s investigation found that not only had the crane not been checked properly, but the workers were also being exposed to a dangerous amount of lead.

Investigations also found that one of the directors had issued cheques totalling £92,500, all of which had bounced, and even continued to act as a director despite two court orders disqualifying him.

The directors were subsequently found guilty under the Health and Safety of Work Act 1974 and Fraud Act 2006 and also found to have breached section 13 of the Company Directors Disqualification Act 1986. Both were disqualified from being company directors, for 15 and 7 years respectively.

More information on this case can be found here: http://press.hse.gov.uk/2014/disqualified-director-and-accomplice-sentenced-over-worker-death-and-company-deception/

 

Amarjit Atwal, Paralegal

aatwal@astonbond.co.uk

The importance of providing prescribed information after statutory periodic tenancies arise: Gardner v McCusker

Posted on by Amarjit Atwal

court-hammer_thumb

When a landlord wishes to evict a tenant from his property, he can do so by serving a notice under section 21 of the Housing Act 1988. However, the landlord may be prevented from serving a section 21 notice if he hasn’t correctly secured the tenant’s deposit in a Tenancy Deposit Scheme (as discussed in our earlier blog here) or provided the tenant with specific prescribed information.

The latter is the issue that arose in the recent case of Gardner v McCusker. The Claimant let a property for a 6 months fixed term to the Defendant, who paid a £600 initial deposit. The Claimant secured the deposit and provided the Defendant with the relevant prescribed information under section 213 of the Housing Act 2004.

In 2010 the fixed term tenancy expired, leading to a statutory periodic tenancy. The landlord then served a section 21 notice in March 2013 requiring the tenants to vacate the property, however the tenant argued that the notice was not valid as the landlord had not provided the tenant with the relevant prescribed information upon the commencement of the new statutory periodic tenancy.

The landlord, meanwhile, claimed that the fixed term tenancy had rolled over into the statutory periodic tenancy, therefore the prescribed information would also ‘roll over’ and there would be no need for it to be provided again.

The court held that the statutory periodic tenancy was technically a new tenancy and therefore the landlord had a duty to provide the tenant with the prescribed information again. This rendered the section 21 notice invalid, and the court ordered the landlord to pay the tenant damages of twice the amount of deposit paid. This case supports the seminal decision of Superstrike Ltd v Rodrigues and means that a landlord will not be able to serve a section 21 notice if he has not provided the tenant with the relevant prescribed information within 30 days of the expiry of the fixed term.

When attempting to serve a section 21 notice it is always sensible to take the advice of a solicitor. Our team of lawyers here at Aston Bond are experienced in dealing with section 21 notices. Come down to our offices at Windsor Crown House, Slough, SL1 2DX today for some advice or alternatively give us a call on 01753 486 777.

Aston Bond are holding a Landlord and Tenant seminar in late September, if you wish to attend please send your details to ndarby@astonbond.co.uk and we’ll be in contact. 

Amarjit Atwal, Paralegal

Serving a section 21 notice when the tenant’s deposit hasn’t been protected

Posted on by Amarjit Atwal

possession-order

Section 213 of the Housing Act 2004 requires landlords to protect their tenant’s deposit in an authorised Tenancy Deposit Scheme (“TDS”) within 30 days of receiving it. Failure to do so can cause great difficulties when the landlord wishes to terminate an assured shorthold tenancy and also lead to fines ranging from one to three times the amount of the deposit.

Section 21 of the Housing Act 1988 allows for a notice to be served upon a tenant when the landlord requires possession of the property. Unlike a section 8 notice which is served upon a tenant when he or she has breached the terms of the contract, section 21 notices can be served when the landlord wishes the tenant to vacate the property, either during a periodic tenancy or at the end of a tenancy.

However, section 215(1) of the Housing Act 2004 prevents landlords from serving a section 21 notice if they have not secured their tenant’s deposit in a TDS. The Act also prevents landlords from securing the deposit in a TDS at a later date in a bid to serve a valid section 21 notice.

One way of getting around this problem is to return the deposit to the tenant before issuing the section 21 notice, so that the landlord is no longer in possession of it. The Housing Acts however, do not define the meaning of ‘returning’ money, and this becomes tricky when the tenant refuses to accept the deposit.

In situations like this it is best to avoid methods of payment such as cheques which can be rejected by the tenants. In order to ensure the tenant is in receipt of cleared funds at the time of serving the section 21 notice, it may be prudent to return the sum in cash at the time of service, or use other instantaneous methods of payment such as a bank transfer.

Our team of solicitors at Aston Bond have experience in advising clients wishing to serve a section 21 notice in the absence of securing their tenant’s deposit in a secured TDS. If you require assistance with serving a section 21 notice, call us today on 01753 486 777.

Aston Bond are holding a Landlord and Tenant seminar in late September, if you wish to attend please send your details to ndarby@astonbond.co.uk and we’ll be in contact. 

Amarjit Atwal, Paralegal

When is advance rent a deposit? Johnson v. Old

Posted on by Amarjit Atwal

letting

The case of Piggot v Slaven (2009) marked a change in the way the law viewed advance rent. Prior to this case, any advance rent received by a landlord would not amount to a deposit on the property. The rent was instead used as payment towards the monthly rent under the lease, and the tenant would continue to make payments once this advance rent had run out. However, in this case the Grimsby County Court held that asking a tenant to pay money that would count as the final two months’ rent under the tenancy would effectively amount to a deposit.

This case has since been contradicted in the form of the Court of Appeal’s ruling in Johnson v Old [2013] EWCA Civ 415. In this case a tenant paid 6 months’ rent upfront for a 6 month tenancy. When her landlord wished to regain possession of the property and issued her with a section 21 notice under the Housing Act 1988, the tenant argued that the 6 months’ rent she had paid amounted to a deposit that had not been secured and therefore her landlord could not serve a valid section 21 notice on her. It was held in this case that the 6 months’ rent that had been paid upfront could not possibly constitute a deposit because the purpose for which it had been paid was for the rent of the property. Had the tenant been asked to pay a month’s rent on top of her previous payments, she would have questioned why she had to pay more when she had already paid all of her rent.

This is a contrast to the case of Piggot v Slaven where the amount held was for the final two months’ rent and the tenants had continued to pay rent during the intervening period. The amount they had given up front could therefore constitute a deposit.

The decision in Johnson v Old means that it is reasonable for landlords to request rent in advance and this will not necessarily constitute a deposit if the intention for the payment is purely to pay rent that the tenant would not expect to pay again. To count as a deposit, the payment must be made to discharge the tenant of any liability arising under or in connection with the tenancy. Alternatively, it must be paid as a security for the tenant’s performance of his obligations.

Aston  Bond are holding a Landlord and Tenant Seminar on 25th September, for full details please email ndarby@astonbond.co.uk. 

Amarjit Atwal, Paralegal

aatwal@astonbond.co.uk

Who has to take the A1 English Test?

Posted on by Amarjit Atwal

Passport

On 24 July 2014 the Home Office removed the exemption allowing long-term residents of a country listed as having no approved A1 English test to not need to meet the A1 English language requirement. This means that more applicants will need to meet this level of proficiency in English.

Previously, individuals who lived in certain countries were exempt from having to meet the A1 English language requirement. The change is a step towards ensuring that those who wish to settle in the UK possess basic English speaking skills, enabling them to mix into British society.

Those who live in countries without an approved A1 English test will have to take the test in a country where there is an approved test. The only way they will be exempt from meeting the A1 language requirement is if they can show in their application for a visa that it is not ‘practicable or reasonable for them to do so’.

Meanwhile, the exemption will continue to apply to those applying from select countries including Turkmenistan, Somalia and Sierra Leone, until 14 August 2014.

If you need help with an immigration issue, call our immigration team today on 01753 486 777.

 

Amarjit Atwal, Paralegal

What to do when the air conditioning stops at work?

Posted on by Amarjit Atwal

British summers often leave much to be desired, however recent warm temperatures have encouraged us to venture out in our summer gear, ready to sunbathe and enjoy some ice cream. While spending time in the warm climes is something we all wish we could do more of in our spare time, it’s certainly one thing we do not need when we are stuck working indoors.

Many modern office buildings have air conditioning systems to keep employees cool; however some older buildings may not have this luxury.

thermo office

Employees have certain rights when it comes to temperatures in their workplace. The Workplace (Health, Safety and Welfare) Regulations 1992 state that the temperature in the workplace should be ‘reasonable’ without actually specifying a temperature. However, the Health and Safety Executive recommend temperatures in the workplace should be between 13 and 30 degrees Celsius, depending on the level of physical activity involved in the work.

If the air conditioning at your work isn’t working or you’re feeling too warm, you may be able to ask your employers to undertake what is known as a “thermal risk assessment” to assess whether the temperature is acceptable or not.

The Health and Safety Executive has given guidance on how to assess ‘thermal comfort’. If more than 10% of employees complain about the heat in an office where there is air conditioning, their employer should make a thermal comfort risk assessment. If the office has no air conditioning but is naturally ventilated through the use of windows then more than 15% of employees would need to complain in order for a thermal comfort risk assessment to be made.

The rules are slightly different for factories and warehouses however, where the lack of air conditioning would have to lead to more than 20% of employees complaining before the employer makes a thermal comfort risk assessment.

If you need any advice on employment law, give us a call on 01753 486 777 and we can assist you with any queries you may have.

 

Amarjit Atwal, Paralegal