Well, here we are at the end of the series.
If you have read it all, I hope you enjoyed it and that you now have a better idea of how things work.
I started the series initially, back in 2011, because I wanted to write about the ‘nuts and bolts’ of the system and give a bit of history as well.
It has been fun revising it and bringing it up to date in 2018.
So what have we covered in this series?
We have looked at the underlying structure of landlord and tenant law – how it is a part of land law, but also a type of contract law as well.
We have looked at the various types of law:-
- civil law and criminal,
- statute law and the common ‘Judge made’ case law, and
- looked a bit at trust law, land law and contract law
All huge topics for law students which they generally spend months studying, followed by a three-hour exam at the end of the year (well that’s what happened when I did my law degree).
We have seen how the laws we have today have grown out of the laws of the past, and how these have been changed to suit new times, mainly by the imposition of the statutory codes on the common law, but also sometimes by Judges in case law decisions. We have looked at tenancies and what the important elements of a tenancy are.
Why does it have to be so complicated?
Probably the thing most people will have found is that it is all a bit complicated. Some of the concepts in law, such as the division of legal and beneficial interests which underpins shared ownership of property, can also be difficult for some people to grasp.
Even if you can follow how it works though, there is such a lot of it all – all those different acts of Parliament affecting tenancies in different ways. Does it really have to be so complex?
There are several reasons for this:-
- One is that our society is a complex one so it needs a complex legal system to deal with it. That is true, but even so, the system we have is way too complicated
- Probably the main reason is that landlord and tenant law has been built up gradually over a long period of time, with different acts being passed to correct specific problems at different times, and by different governments. It has not been codified properly, and the law is scattered all over the place.
- Then there is the fact that if a tenant acquires rights under a tenancy, any subsequent change in the law should not act to take away those rights. This is why protected tenants retained their privileges such as the right to a fair rent when the law changed with the introduction of the Housing Act in 1989.
But it all adds up to a very complex area of law.
The lost chance of a simpler system
At one time it did look as if we were going to get a simpler, or at any rate more straightforward, system. In 2001 the Law Commission were asked to look at housing law and advise. Between then and 2006 when they presented their final report, Renting Homes, they undertook a massive consultation exercise which looked at the whole area of tenancy law.
The recommendations that they made, which were set out in a draft Renting Homes Bill, if taken up by the government, would have made things a lot easier all round. However Government was not minded to do this, and the report, in England, has been gathering dust ever since.
In Wales however, it is a different story and some of the Law Commission’s proposals have been included in the Renting Homes (Wales) Act 2016 which is yet to come into force.
However, although this may improve things in Wales, it has meant a further splintering of the law between Wales and England. Is this a good thing? I suspect that landlords and agents in the border regions who have properties in both England and Wales and who will have to grapple with two systems will think otherwise.
It just adds more complexity overall.
Regulation of landlords and agents
There is then the problem that (largely due to this complexity) many landlords and even many letting agents (who are supposed to be the professionals) only have a very hazy idea of how landlord and tenant law works.
Regulation of both landlords and agents, which would include training and continuing education, has been mooted for a long time.
This may be on its way. Government has finally woken up to many of the problems that we have. However, they are still unwilling (or unable due to the pressures of Brexit) to sit down and look at the system as a whole. They still just want to tinker at the edges.
We do now have some regulation though:
- All letting agents must now belong to a Property Redress Scheme
- Shortly, all agents will be obliged by law to have client money protection
- Agents (and also landlord’s) fees to tenants are due to be curtailed in the Tenant Fees Act, when it is passed
- The rules relating to HMOs are due to be widened on 1 October 2018 when all properties with 5 or more tenants forming 2 or more households will need to get a license from the Council
- Some Local Authorities are also introducing licensing schemes for other landlords in their area
There are still big problems though:
It’s patchy and uneven
Changes are still just ‘sticking plaster’ to solve specific problems. There is no attempt (save perhaps in Wales) to deal with the system as a whole.
The result is
- The law becomes incredibly complex which makes compliance harder
- It is uneven – for example, the regulation you experience will be different depending on where in the country your property is situated. Surely this is unfair?
Lack of enforcement
This is the big, big problem. Its all very well to have good laws but they are not much good if they are never enforced. A lot of people will comply with them voluntarily, but they were never the problem in the first place. The real problem landlords just carry on regardless.
The main enforcers of housing law, the Local Authorities, are still reeling from austerity (many Local Authorities had to cut down massively on their enforcement teams) and so the bad landlords just ‘get away with it’.
In fact so bad is it that criminals have now moved into the sector and in many areas are operating unchecked. For more information about this, read Ben Reeve Lewis’ series of posts on the business models of criminal landlords.
The three big problems
- An over complex system is the first. It makes it hard for people to comply with the law, even if they want to
- Lack of enforcement is the second big, big problem in the sector. It makes a nonsense of the laws that we have.
- The third is the supply problem. If there was a surplus of properties, if there was a choice, tenants would avoid the bad landlords and they would find it harder to survive.
Still, at least the government now seems to be sitting up and taking notice of some of the problems in the housing sector. Let us hope that any action they take is effective and does not just make things worse.
Landlord Law Blog to the rescue …
I can’t do much about the second two problems. But so far as the first is concerned, you now have this series, which will give you the basics. If you are a landlord or letting agent, it will help you understand the more formal landlord and tenant manuals, and maybe even a legal textbook or two.
Following this blog will also give you articles and hopefully insights into the world of landlord and tenant law.
You could also consider my main Landlord Law service, which has a lot of more practical guidance to help you through.
And so ends this series on the foundations of law. I hope you enjoyed it. Let me know in the comments.