legal update presented by robert bolwell macdonald botley park hotel 4 th june 2014

LEGAL UPDATE

PRESENTED BY

ROBERT BOLWELL

MacDonald Botley Park HOTEL

4th June 2014

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ODD ONE OUT

Mark Prisk MP

Eric Pickles 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 exploitationii) nominated reporting officeriii) commit resources

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• Actions neededi) risk assessmentii) policy statement on how that risk is managediii) train staffiv) regular reviewv) keep records for 5 years

• In practicei) identify customers and beneficial interestsii) sources of financeiii) unusual requests e.g. multiple buyers/sellers of a single

propertyiv) 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 budgeti) three new staffii) £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 2014S. 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?