This is a short series on dealing with legal problems, with reference specifically to landlord and tenant issues. It will, I hope, clarify how lawyers approach the analysis of problems which their clients bring to them and decide the correct action to take. And maybe help you to do the same.
Part 1 – Where the law is found
When I get questions from landlords and tenants there seems to be a general feeling that there is ‘an answer’ which will specifically cover their situation.
As if somewhere, up in the sky, there is a list of all the situations that ever were or ever could be, with answers to the problems laid out there.
And that lawyers will presumably learn these off by heart so they will know instantly what the answer is to anything that comes up.
The reality is very different. It’s messy and complicated. Probably far too messy and complicated – but that’s the system we have. A lawyer’s job is to deal with it and make sense of it. If they can.
Where is the law?
For most legal problems there will be an answer. But it is often hard to find.
Sometimes there will be no ‘law’ (as in written down statute law) which actually applies to a particular situation and you have to try to work out what it can be.
There are various places that you can look:
1 The Common Law
I discussed this here. It is (in this context) the system that has grown up over hundreds, thousands of years from custom and practice and, in particular, decisions of the courts.
It is often quite hard to find out what the common law is on any one situation as it is not set out nice and neat like an act of Parliament. Lawyers will use legal textbooks to help them, special case law books (such as the Housing Law Casebook) and various online resources, including the free case law database at Bailii.
Statute sits on top of the common law and changes it (as in the diagram). So in housing law, for example, we have ‘common law’ rules, but these are changed by the big housing statutes such as the Housing Act 1988.
The Housing Act 1988 applies to all new tenancies which are created now – unless the tenancy is one of the ‘excluded’ types which are set out in Schedule 1. Those tenancies will either be governed by another act, or by the common law.
3 Statutory Instruments
These are secondary laws which amplify and explain the main statutes. So, for example, the basics of HMO law is now found in the Housing Act 2004 but the detail is found in the statutory instruments. Such as The Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018.
One of the problems with finding the detail of a law, is that it is often split between the main statute and the statutory instruments which are themselves often amended and replaced. As with the 2018 HMO licensing statutory instrument which on 1 October 2018 will replace the earlier statutory instrument from 2006.
There also tends to be a lot of cross-referencing which is confusing. Sometimes you really need to have several computer screens open at once all showing different parts of an act or statutory instrument so you can refer one to another. Understanding statute law is a bit of an acquired skill – you need to keep a clear head and think logically. It’s not easy!
4 Contracts and agreements
Often people ask a question, thinking that there is a general ‘law’ which will apply, when in fact the situation is governed by the terms of their own documentation – such as their tenancy agreement or agency agreement (if they are a landlord).
So for many situations where you have a written contract document you need to look at that first.
However, this does not always provide a complete answer. Confusingly there are laws, mostly consumer laws, which say that some types of contract clause, will not be enforceable. So for example in a tenancy agreement and in many agency agreements, clauses which are ‘unfair’ will be unenforceable.
How do you know which ones are unfair?
With difficulty. You usually can’t tell from the contract itself. You need to know what the unfair contract terms legislation says and whether it applies or not.
Contract terms may also be unenforceable if they contradict laws which apply universally. For example, the statutory repairing rules set out in section 11 of the Landlord & Tenant Act 1985.
I discuss this problem in my post on misleading tenancy agreements here.
Criminal and civil law
There is also a lot of confusion about the difference between the criminal law and the civil law. As I said in this post:
- Civil law – is a complicated system which tries to set out rules to cover all the sorts of situation that may arise in life, and provides for disputes to be decided by a Judge if the parties are unable to sort it out themselves.
- Criminal law – is a system for punishing wrongdoing. The criminal law sets out all the things which are considered unacceptable, and which will render someone liable for prosecution.
In the area of housing law:
- Some things fall under the criminal law – for example, unlawful eviction and failing to obtain an HMO license.
- Other things fall under the civil law – for example failing to protect a deposit or comply with the repairing rules in section 11.
We will look at this more in Part 3.
So that’s a very brief summary of where the law is to be found. In Part 2 we will be looking at how you use this to find the answer to your problem.