Part 2 – Searching for the answer
Last time we took a look at the various types of law and legal resources. Today we are looking at how you use those resources to find the legal answers to your problem.
Finding the facts
First of all, you need to be really sure about what your problem is. Find out all your facts and write them down. Do lists. Chronologies are often helpful. Sometimes your problem may not be what you think it is at first.
Getting the full facts from a client is one of the skills of a lawyer – often clients won’t know what is relevant and what isn’t.
For example, in a landlord and tenant situation, a tenant’s rights and obligations will often depend on the type of tenancy the tenant has. For this, you need to know when the tenancy started as this will affect the laws that apply to that tenancy. So if you don’t know when the tenant first went into the property, you can’t (if you are an adviser) advise properly.
Sometimes the problem is actually not a legal problem at all but a conflict about the facts. If the case goes to court it will be all about whether the Judge believes Mr A or Mr B. The actual law which applies may not be in dispute at all.
However, let’s assume that you have your facts and they are not in issue, but you don’t know which laws apply to them. How do you find your legal answer?
Here is the way that a housing lawyer will approach it:
Read the contract
This is the equivalent to RTFM – a shortcode used a lot in internet advice forums. It is equally relevant to housing law!
Frequently there will be something in your contract (such as tenancy agreement or agency contract) which covers the situation. If so – this is your starting point.
Always, ALWAYS read your contract first.
But if it covers the point, you then need to consider:
Is the contract enforceable?
If the contract covers your situation, you then need to consider whether the clause (or maybe the whole contract) is enforceable or not. If one of the parties is contracting as a consumer – it may not be. Or, as we discussed in Part 1, a contract clause may conflict with overriding legislation.
If the problem is not resolved by your contract (or even if it is), then
Is there any legislation which applies?
There have been a lot of housing acts and landlord and tenant acts over the years so you need to know which one deals with what. For example:
- The Housing Act 1988 covers most tenancies which started on or after 15 January 1989
- The Rent Act 1977 applies to most older tenancies
- The Housing Act 2004 deals with issues relating to the condition of the property, HMOs and tenancy deposits
- The Housing Act 1985 s 11 has the statutory repairing covenants
Those are your main acts. But there are others.
If there is legislation which covers your problem, it may override your contract. Such as, for example, the section 11 repairing covenants. Most good housing lawyers will know the outline of the main acts, when they apply and when they don’t.
What does the legislation actually say?
Sadly legislation is often badly drafted and unclear. If it is wholly ambiguous, we won’t have certainty until someone brings a test case. If this goes to the Court of Appeal then it will be an authority – or if it then goes up to the Supreme Court, which is the ultimate court in the UK.
The Supreme Court decision will then be the law, unless Parliament changes this by passing another statute.
This is what happened with the tenancy deposit legislation. The original rules were interpreted by the Courts in a way which was contrary to the intentions of Parliament, so they had to amend it. Twice!
Sometimes, however, your problem may not be something covered by your contract and there may be no relevant statute law. What do you do then?
Look to the common law.
You need to check to see if there are any relevant cases which cover the point. If you can find a Court of Appeal, or better still, Supreme Court decision that is similar to your situation – that will help.
Finding the right case law can be difficult as there are thousands upon thousands of cases, most of which are not reported online. Lawyers will use legal textbooks and casebooks to find them or special online case law databases. These are however not an easy read for non-lawyers and tend to be very expensive.
Occasionally there will be a unique situation which has not been decided by the courts before. If the problem is of sufficient value to justify taking the situation to the Court of Appeal or the Supreme Court – the Judges will have to find an answer somewhere.
What they will do is consider things such as analogous situations, academic writings, legal decisions in other jurisdictions, and any relevant customs and practices. They will weigh all these matters up and make a decision.
That will then be the law, unless Parliament passes an act to change it.
If your problem has no obvious answer and there appears to be no statute which covers it, then it is best to get a barrister’s written opinion (Counsel’s opinion). Barristers have better resources for researching esoteric problem than the majority of solicitors. But they can be expensive.
The need for lawyers
As you can see, finding the law which applies to your problem is not always an easy matter. You may consider this wrong, and maybe it is – but we live in a complex society. Inevitably the laws which govern and regulate us will need to be complex too.
Lawyers spend many years studying the law and will (usually) understand it and know how it works. However, they are also expensive. Sometimes very expensive.
You may feel that you are capable of researching your legal problem yourself, and indeed you may do a good job of this. There is a lot of information online (for example in this blog).
However, for complex or unusual problems, you should always check your conclusions with a specialist lawyer, certainly before you take any action which depends on you being right. Otherwise, you may find you have made an expensive mistake.
If your problem is a housing law problem, then we have a telephone advice service which you will find here. The service is shared by me and the solicitors at Anthony Gold – although I tend to forward most requests for advice to Anthony Gold nowadays.
When you know what the legal answer to your problem is – that may not be the end of your problem. What do you do then?
We will look at legal remedies next time.