Why does housing law have to be so complicated?

“And why” some people say “When you ask a lawyer a question, why do they never answer it properly?  The best they can often say is ‘it depends’.  What kind of an answer is that?”

The trouble is that law IS complicated.  Why?  Because we are complicated.  We live such complicated lives, that our laws have to be complicated to cope with them.

Housing law is complicated too.  Very complicated.

Individual property rights

At first blush housing law seems to be just about individual property rights.  The rights of the landlord against those of the tenant.

However it is not that straightforward.  The law also has to take into account the fact that one party (e.g. the landlord) is often in a much stronger position than the other.  For example it is the landlord who normally prepares the tenancy agreement document, and therefore has an opportunity to insert clauses which are against the interests of the tenant (who frequently does not even read it).  When this happens, it is unfair, and so we have regulations to make the unfair terms unenforceable.

Economic influences

Then there are the economic needs of society at the time the laws are made.  For example, tenants rights were greatly strengthened in the first world war, as it was important that housing was available to workers needed for the war effort.

These rights were then consolidated and strengthened, culminating in the Rent Act 1977.  However the tenants’ rights had become so strong, they became a disincentive to potential landlords, who would effectively lose control of their property as soon as it was let out to a tenant.   Largely because of this, the proportion of rented property went from about 80% at the start of the twentieth century down to about 8% in 1990.

However the new Thatcher government, which came in, in 1979, wanted to do things differently.  They introduced a new form of tenancy, the assured shorthold tenancy, in the 1988 Housing Act.  This and the development of the buy to let mortgage completely changed the private rented sector, which went from being virtually non existent to the being the buoyant sector we have today

So much of housing law is politically motivated.  Had the 1988 Housing Act never been passed, the housing landscape would be very different today.

Individual property rights again

However individual property rights are still considered very important.  This is why tenants owning tenancies created when the old Rent Act 1997 was in force still largely retain the rights they acquired when they first rented their property.  It is only tenancies created later which operate under the new rules, and the two systems run side by side.  This means, that to understand housing law you need to learn, not just one housing law system, but several (there are others too!).

The property condition – private issues

Then there are the laws relating to the condition of the property.  This is partly something to be sorted out between the landlord and the tenant themselves under the tenancy agreement contract.  This is largely governed by the repairing covenants set out in section 11 of the Landlord and Tenant Act 1985 which are included by law into all tenancy agreements, whether they are written down in the tenancy document or not.

The property condition – social issues

However the condition of property is also a social matter.  Poor housing is unsightly and can drag a neighbourhood down.  People, particularly children, living in substandard housing often suffer other problems, such as illness, which can impact on society, and cost the government which funds the national health service.

For this reason Local Authorities are empowered to enforce housing standards, under completely separate and different rules, now set out in the 2004 Housing Act.

Political changes

Then there are the problems which come about because of the way our government and political system works.  Rules introduced by one government with one ideology, will be overturned by a subsequent government and party, with very different values.  Often whether a rule applies to you or not, will depend on the relevant time.  So, if you sold a house last year you would have needed a HIP, whereas now you don’t.

All of these different laws and regulations, passed at different times by different governments, lie on top of one another like the skins of an onion.  To understand housing law properly, you need to know them all and understand how they fit together.

It is the same with other areas of law.  Law is complex because our society is complex.

Why lawyers are cagey

This is why lawyers, wily in the ways of the law, will often refuse to commit themselves (particularly as they may be opening themselves up to a compensation claim if a hasty comment is later found to be wrong).  They know that

• things are rarely as simple as people think,
• the person asking the question has probably left out a lot of relevant points which will have a significant effect on his situation and also
• you cannot make law easy and straightforward just by wanting it to be so.

It is possible of course to explain things in a clear and simple style.  However as law, for example housing law, is so complex, the explanation will either be very long, or will be made up of lots of small chunks.

The Landlord Law service

This is what I have tried to do with my Landlord Law web site service.  A lot of the site content is FAQ.  Answers to questions which people have been asking me for years on my Q&A page, and which cover just a small aspect of housing law and practice.  Many of the FAQ are very short.  But the size of the site is very large, and the amount of information there (as I am currently finding out to my cost as I am having to transfer it all over to our new web-site) is very large.

But if you feel that housing law is getting too much for you, it may be able to help.