Docklands Solicitor
Latest legal news from Docklands Solicitors, Kaslers Solicitors LLP.
Tuesday 27 December 2011
Tenancy Agreements and the Unfair Terms in Consumer Contracts Regulations 1999
The Unfair Terms in Consumer Contracts Regulations 1999 (“the Regulations”) is a UK legislation which implements the EU directive into domestic law.
The majority of residential landlords and tenants enter into contract as consumers and therefore the Regulations will apply. Accordingly, knowledge of Regulations is essential in drafting and negotiating any tenancy agreement.
In general under the Regulations care must be taken by the landlord in limiting the tenant’s right in the following areas:
· Clauses which impose any penalty or charge on the tenant must state that the charge should be both reasonable in amount and reasonably incurred. For example, clauses which require the tenant to pay a sum in excess of the landlord’s actual loss will be considered unfair and unenforceable.
· Clauses which require the landlord’s written consent, must be followed by the words “consent not to be unreasonably withhold or delayed”.
· Clauses which limit or exclude rights of a tenant are almost certainly going to be the breach of the Regulations and be deemed unfair. For example, the court has held in a deciding case that the clause in a tenancy agreement which prohibited the tenant to do anything which in the landlord’s opinion might be or become a nuisance was unfair and unenforceable.
· Clauses which are difficult to understand, legal terminology which is not in common use or legal jargon with a specific legal meaning which may not be understood by an ordinary person is considered to be unfair. Terms such as ‘indemnity’, ‘lien’, ‘joint and several’, ‘liquidated damages’, ‘void or voidable’, ‘estopped’, ‘demised’ are considered unfair unless a clear explanation is given alongside.
Without a good knowledge of the Regulation and tenants’ rights, one may unwittingly beach the rights of a tenant while drafting a tenancy agreement. This is why non-lawyers must be very careful when drafting or amending tenancy agreements.
Labels: Tenancy Agreements, Tenants’ rights, The Unfair Terms in Consumer Contracts Regulations 1999, Unfair Terms of a Contract.
Friday 23 December 2011
Eviction Without Court Order is a Criminal Offence
Private landlords should take care not to commit harassment and force the tenant to leave the property without a court order. The harassment of a tenant intending them to leave the property is a criminal offence as well as a tort (civil wrong).
In a recent case the tenant lost her job as a cafe worker and applied for housing benefit. There was a delay in getting the money from the council. The landlord started sending the tenant text messages on a regular basis demanding rent. Although none of these texts contained obscene language, the court’s finding was sending text demanding rent on a daily basis amounted to harassment.
Although the council warned the landlord not to take any action until the tenancy had been formally surrendered, the landlord ignored the council’s advice and changed the locks.
The landlord finally pleaded guilty to one offence contrary to the Protection from Eviction Act 1977 and the District Judge Anthony Browne ordered the landlord to pay £250 fine plus £15 victim surcharge plus £425 in legal costs and in his judgment he stated: “Sending texts on a daily basis demanding rent would unsettle anyone. In the face of advice from the council, which was to do nothing, you took the thing back into your own control, which was unacceptable.”
Alireza Nurbakhsh Ph.D (Solicitor) t: : 0845 270 2511
Labels: Criminal Offence, Eviction, harassment, landlord, Rent Arrears., tenant
Monday 19 December 2011
Part 36 Offer – time limitations
A recent Court of Appeal decision has clarified the issue of whether or not a Part 36 can be time limited.
In C v D [2011] EWCA Civ 646 the claimant purported to make a Part 36 offer to settle a dispute. However, he specified that the offer was only open for acceptance for 21 days. The offer was not withdrawn by the Claimant and the Defendant decided to accept the offer outside of the 21 day period.
The Court of Appeal considered whether the offer lapsed after 21 days or whether the Claimant simply intended the offer not to be withdrawn for 21 days.
It found that a part 36 Offer cannot be time limited. The offer lies on the table until formally withdrawn. In this instance the 21 day limitation period was to be read as meaning that the offer would not be withdrawn within the 21 days.
The Defendant was free to accept the offer.
Care should be taken to formally “withdraw” any Part 36 Offer that is no longer open for acceptance.
Felicity Keeler, Senior Paralegal tel. 0845 270 2511
Labels: acceptance, limitation, offer, Part 36, period, time
Sunday 11 December 2011
Employment Law Reforms
Chancellor George Osborne has announced two major changes to Employment Law cases that he hopes will reduce the number of employment tribunal claims and boost the economy.
Firstly the qualifying period for unfair dismissal will be increased from one year to two years with effect from 1 April 2012.
Secondly fees will be introduced for tribunal claims, namely:
· An issue fee of £250
· A further fee of £1,000 when the claim is listed for hearing
· Higher fees if the claim is over £30,000
· Fees to be refunded if the Claimant wins and forfeited if they lose
· Fees to be waived where the Claimant has no money
Contact 9845 270 2511 to speak to one of our employment team
Labels: dismissal, employment, fees, qualifying period, reforms
Sunday 4 December 2011
Part 36 Offer – time limitations
A recent Court of Appeal decision has clarified the issue of whether or not a Part 36 can be time limited.
In C v D [2011] EWCA Civ 646 the claimant purported to make a Part 36 offer to settle a dispute. However, he specified that the offer was only open for acceptance for 21 days. The offer was not withdrawn by the Claimant and the Defendant decided to accept the offer outside of the 21 day period.
The Court of Appeal considered whether the offer lapsed after 21 days or whether the Claimant simply intended the offer not to be withdrawn for 21 days.
It found that a part 36 Offer cannot be time limited. The offer lies on the table until formally withdrawn. In this instance the 21 day limitation period was to be read as meaning that the offer would not be withdrawn within the 21 days.
The Defendant was free to accept the offer.
Care should be taken to formally “withdraw” any Part 36 Offer that is no longer open for acceptance.
Felicity Keeler, Senior Paralegal tel 0845 270 2511
Labels: acceptance, limitation, offer, Part 36, period, time
Monday 28 November 2011
Legal Expenses Insurance
For some time it has been quite clear that legal expense insurers cannot restrict an insured’s right to choose his own solicitor, but that does not mean that the solicitor can necessarily charge his normal hourly rate.
In Brown-Quinn v Equity Syndicate Management the Judge held that whilst a solicitor may not be able to charge his normal hourly rate, the insurer cannot insist that he receives only its panel rate.
On the conclusion of the case, the hourly rate payable by the insurer will be assessed as a reasonable hourly rate having regard to the insurer’s standard panel rates.
In particularly complex cases the panel rate becomes less important as a guide and other considerations will apply i.e. the complexity of the case and the need for senior and/or specialist fee earners to be involved.
Felicity Keeler, Senior Paralegal tel: 0845 270 2511
Labels: complex, expenses, insurance, Legal, panel rates
Wednesday 23 November 2011
Employment Law changes
There could be at least 3 major changes to the way in which employer / employee disputes are managed
1. An employer may be able to have a 'protected conversation', with an employee about performance / on-going employment, without the employer fearing that his words will be used against him a constructive dismissal claim
2. There may be fees for bringing employment tribunal claims
3. The unfair dismissal qualifying period may go up from one year to two years with effect from April 201
Michael Breeze, Solicitor tel: 0845 270 2511
Labels: changes, conversation, dispute, employee, employer, fees, protected, unfair dismissal
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