EPC Requirements for Privately Rented Properties: A Review

Managing for Success – The Law Society Interviews Shaheen Mamun

Shaheen Mamun features in the July 2020 edition of Managing for Success, the magazine of the Law Society’s Law Management Section. In a wide-ranging interview with entitled “Lock and key”, Shaheen discusses:

  • Setting up a law firm as an introvert;
  • The service mindset;
  • People and diversity;
  • Lockdown and remote working; and
  • Innovation and the future of the legal profession.

Shaheen Mamun Serves Pre-Action Letter on the Mayor of London Sadiq Khan

Black Antelope Law Director, Shaheen Mamun, has issued a pre-action protocol letter on Mayor of London, Sadiq Khan, following his increase of the Congestion Charge on a week’s notice.

The letter from Black Antelope Law says the mayor has not engaged in a formal consultation that is adequate and fair as established in case law. The timescale from announcing the proposals to the 22 June implementation date is woefully inadequate  and ‘It would be difficult to see how members of the public could express an intelligent view on the proposed scheme, so as to participate in a meaningful way in the decision-making process”.

Further details of the claim are contained in Mr Mamun’s interview with the Law Gazette.

 

Coronavirus Guidance for Landlords and Tenants Q&A

On 28 March 2020, the Ministry of Housing, Communities and Local Government published non-statutory guidance for Landlords and Tenants on possession proceedings and property issues as a result of, amongst other things, the financial impact of the coronavirus pandemic.

The guidance is advisory and aims to help landlords, tenants and mortgagors understand the implications of the Coronavirus Act 2020 and will be updated as necessary. The information regarding the guidance contained in this blog is current as of 17 April 2020 and should not be relied upon as legal advice.

Rent Arrears

Q. Am I allowed to stop paying my rent during the pandemic?

A. No, the terms of your tenancy agreement continue to apply in full, so you need to pay your rent to the best of your ability. If your ability to pay rent is affected, you should speak to your landlord as soon as possible.

Q. Must my landlord come to an agreement or give me time to pay?

A. Your landlord is not compelled to agree any changes to how much rent you pay and when your rent is paid. However, under the guidance, landlords and tenants are expected to try and reach a temporary agreement which might be that the landlord does not start court proceedings for a period of time or that they accept a lower level of rent or an agreement to pay off the arrears at a later date. Any plans agreed should be stuck to by both parties.

It is anticipated that the Pre-action Protocol for Possession Claims by Social Landlords will be amended to impose obligations on private landlords to work together with tenants to agree on an affordable rent repayment plan.

Q. Is there any additional financial support I can access as a tenant?

A. In addition to claiming benefits, Local Authorities can provide support for tenants experiencing financial hardship and tenants should speak to their local authority.

Mortgage Arrears

Q. Can I get any help with mortgage repayments?

A. Mortgage lenders have agreed to offer payment holidays of up to 3 months where this is needed due to Coronavirus-related hardship, including for buy-to-let mortgages.  The sums owed under the mortgage are not extinguished and interest will continue to accrue during the payment holiday.

Q. I am in a shared ownership property and pay both a mortgage and rent. What differences does this make?

A. As a shared owner, you will be able to access both the mortgage holiday and enjoy the protections afforded to private renters regarding the length of notices.

Property Licence Arrears

Q. I am occupying a property under a licence, am I protected?

A. The Coronavirus Act 2020 does not apply to licences to occupy other than secure licences under the Housing Act 1985. Although landlords are asked to follow the same practice as for renters, there is no legal obligation on them to do so.

Service Occupiers

Q. I was provided with accommodation with my job, but I have lost my job. Is my accommodation protected?

A. Where your employment required you to live-in to be able to do the job, e.g. caretakers, hotel staff, etc you are not protected by the Coronavirus Act 2020. The same applies to employees of local authorities who are living in accommodation provided by the local authority and their contract requires them to live in the property for the better performance of their duties. How much notice you are entitled to in either case will be set out in your contract of employment.

Where your job offers self-contained accommodation, but it is not a requirement as part of the job, your tenancy may fall under the Housing Act 1988 and if it does, you will be protected in the same way as ordinary private renters.

Notices Seeking Possession

Q. Can my landlord still serve me a Notice of Seeking Possession?

A. Yes, but until 30 September 2020, your landlord will need to provide a minimum of 3 months’ notice.

Q. If the notice has expired, but a court order has not been made, do I have to move out?

A. No, you cannot be forced to leave your home without a court order and warrant for execution for that order and any breaches will give a tenant a right to bring a civil action.

Court Proceedings

Q. I had an ongoing possession court case before the national lockdown, will this be going ahead as normal?

A. Following the introduction of the Coronavirus Act 2020, the judiciary has announced that all housing possessions cases in the rented, leasehold and home ownership sectors are suspended for 90 days from 27 March 2020 until 25 June 2020.

Q. Can my landlord start a new court claim for possession after the new period of notice has expired?

A. Yes, they can, although they are strongly advised not to do so without a very good reason.

Disrepair and Property Hazards

Q. I have disrepair or a hazard has developed in my home during the outbreak, what rights do I have to get them fixed?

A. Landlords continue to have an obligation to make sure a home which is being rented is a safe and decent place to live and local authorities, landlords and tenants are expected to work together pragmatically at this time in line with the general government guidance. The current restrictions may prevent routine and obligatory inspections and landlords will not be unfairly penalised where Covid-19 restrictions prevent them from meeting some routine obligations.

Q. Should I grant access to the local authority, my landlord or contractors during the pandemic?

A. Where it is reasonable and safe to do so, yes. Whether it is reasonable is likely to depend on whether the work that needs to be carried out is an urgent health and safety issue, such as a leaking roof, you have no heating or hot water, equipment that a disabled person requires needs repair or there is a security-critical problem. You must also take account of sensible precautions, such as remaining in a separate room during any visit and government guidance on hygiene and cleanliness before, during and after visits.

Q. I am a landlord. Do I still have to provide regular gas and electrical safety inspections?

A. Landlords must still provide tenants with all necessary certifications. Documents can be provided by post or digitally. Landlords must comply with the regulations that come into force on 1 July 2020. The new gas safety regulations and electrical safety regulations account for situations in which a landlord cannot do this by allowing them to demonstrate they have taken all reasonable steps to comply with the law. Attempts to gain access from tenants or to find a contractor should be documented.

Home Moves

Q. I signed an agreement to move into a new rental property or purchased a new home and the move-in date is during the pandemic. Should I be moving?

A. The guidance advises that as far as possible, you should delay moving to a new home while the emergency measures are in place. If moving is unavoidable for contractual reasons and an agreement cannot be reached to delay, you must follow the advice on maintaining strict separation to minimise the spread of the virus.

Q. Someone in my House in Multiple Occupation (HMO) has the virus, is my landlord obliged to remove them or find me another place to stay?

A. Nobody can be removed from their home because of the virus and there is no obligation to provide alternative accommodation for tenants if others are in the property contract coronavirus. You should follow government guidance on what do if you share a home with someone who may have the virus.

Access to our Legal Services During Coronavirus

Dear Clients,

The impact of coronavirus is being felt across the UK and around the world and we hope that you and your family remain safe and well in these difficult times.

As we monitor the developments around the spread of coronavirus (Covid-19), we would like to reassure you that business at Black Antelope Law continues as usual and that we remain on hand to support you and your clients.

The health, safety, and wellbeing of our clients and team members is our utmost priority. As a result, we have decided to temporarily close our offices for in-person meetings and consultations until further notice and our team will be working from home in order to prevent the spread of Coronavirus (Covid-19) and protect the communities which we work and live in.

Our team has full access to our IT systems and telephones, so you can still contact us on our direct line 0330 223 3105; email us via [email protected]; WhatsApp us via WhatsApp Business or videoconference with us via Zoom. We will be working hard behind the scenes and we will continue to progress your matter as efficiently as possible within the new framework introduced by the Justice system.

Black Antelope Law

23.03.2020

Does an Islamic Nikah Give a Right to Apply for a Financial Remedy Order under the Matrimonial Causes Act 1973?

In the recent Court of Appeal decision in HM Attorney General v (1) Nasreen Akhter (2) Mohammad Shabaz Khan [2020] EWCA Civ 122, the Court was asked to clarify when an Islamic ceremony of marriage (a Nikah), will be validly solemnised for the purpose of the Marriage Act 1949 which sets out the routes into marriage for opposite-sex couples in England and Wales.

If a Nikah meets the formality requirements of the law of England and Wales, then this creates a variety of rights and obligations, including the right to apply for financial remedy orders under the Matrimonial Causes Act 1973. However, if a non-qualifying ceremony has taken place, there is no right to apply for a financial remedy order. Under the Marriage Act 1949 there is in effect three routes into marriage:

  1. A religious route into marriage where Anglican preliminaries are followed by an Anglican ceremony.
  2. A civil route into marriage where civil ceremonies are followed by a civil ceremony either in a register office or on approved premises; and
  3. A mixed route into marriage where civil ceremonies precede one of four types of religious ceremony. The ceremony can be:

a. “according to the usages of the Jews”

b. “according to the usages of the Society of Friends” (Quakers); or

c. “such form and ceremony” as the parties wish, in a place of religious worship registered for the solemnisation of marriage (being a “registered building”); or

d. “according to the rites of the Church of England”.

The question was whether on the facts of this particular case, where there had been a Nikah in a restaurant and the couple had intended to follow this up with a civil marriage ceremony but never did, had route 3c described above (and more fully set out under s.44 Marriage Act 1949) been met? The Court found that the formality requirements had not been met: the parties were fully aware at the time of the marriage that without a civil marriage ceremony,  they would not be legally recognised as being married and this had been reinforced by the Imam.

The second question then had to be answered was whether on the facts, had there been a void marriage under either s.25 or s.49 Marriage Act 1949? If so, a void marriage did give rise to the right to apply for a decree of nullity under s.11(a)(iii) Matrimonial Causes Act 1973 and then to apply for a financial remedy order. If not, the result was that there had been a ceremony of marriage, but which had not been sufficient to create a marriage or void marriage under the law of England and Wales.

As the parties had not attempted to meet the requirements of marriage under route 3c (as they had intended to follow up the Nikah with a civil marriage ceremony), they could not meet the test for a void marriage. The Court considered whether the Human Rights Act 1998 made any difference to their findings. They found that it did not since a finding that parties never married could not lead to a determination that the right to marry had been infringed. Finally, the Court decided that the mere intention of parties cannot change the legal effect of a ceremony of marriage and Article 8 ECHR does not provide a different approach to interpretation contrary to the finding of the judge below. The failure of the state to recognise the Nikah as a legal marriage does not breach Article 8 ECHR and the refusal to grant a decree of nullity did not of itself engage Article 8 ECHR.

Have you had a Nikah ceremony and need advice understanding your rights under English law and your options? Contact our Family Team and we will be happy to assist.

The Validity of Pre Deregulation Act Section 21 Notices From 1 October 2018

On 30 August 2019, Black Antelope Law acted for the successful appellant in a County Court appeal on the correct interpretation of s.41(3) Deregulation Act 2015. The decision will be of assistance to those representing both landlords and tenants in possession claims.

Background Facts

The Respondent landlords (R) granted the Appellant (A), a 6-month fixed term AST of a flat on 20 June 2011. On the same date, A was also served with a s.21(1)(b) notice, which expired on 19 December 2011.

On the 20 December 2011, A’s tenancy became a statutory periodic tenancy under s.5(2) Housing Act 1988. Thereafter A continued to occupy the property under the periodic tenancy.

On 6 February 2019, R issued a claim for possession under the accelerated possession procedure which was defended. At a possession hearing on 15 April 2019, DDJ Wright in the Clerkenwell and Shoreditch County Court granted R an order for possession on the basis that s.36 and s.41 Deregulation Act 2015 did not invalidate the s.21 notice relied upon by the landlords as it refers to ASTs and not periodic tenancies. However, DDJ Wright granted permission to appeal as she considered that the law required clarification as landlords were routinely arguing in possession claims that pre-1 October 2015 tenancies were not caught by s.41(3) Deregulation Act 2015.

The appeal was listed before HHJ Roberts on 30 August 2019, who allowed the appeal and set aside the order for possession. HHJ Robert gave judgment as follows:

The Appellant’s submissions were that the purpose of the Deregulation Act was to offer greater protection to tenants and the Respondent did not argue to the contrary.

 The Appellant submitted that the notice was invalid under s.21(1D) as it was served more than 6 months before the claim for possession commenced.

 It was submitted that s.41(2) of the Deregulation Act 2015 contains a conjunctive “and” and so two scenarios are covered, periodic tenancies which came into being after 1 October 2015 and periodic tenancies which came into being before 1 October 2015.

 s.41(3) says after 3 years, it will apply to any AST otherwise exempt.

 The Appellant says that an AST includes a contractual or periodical AST under Housing Act 1988.

 Applying the law, between 1 October 2015 and 30 September 2018, s.21(4D) would not have applied on the facts of this case. Then on 1 October 2018, s.41(3) Deregulation Act 2015 came into force and any tenancy that was excluded as of 1 October 2015 would be subject to the Deregulation Act 2015.

 It was common ground that the notice was not served within 6 months of commencing possession proceedings.

 It was also submitted that if there is a lacuna in the Deregulation Act 2015 because it does not cover periodic tenancies before 1 October 2015, it was permissible to apply a purposive construction applying Wentworth Securities v Jones. Section 41(3) was a longstop provision intended to cover all tenancies and the court should adopt a construction to enable periodical tenancies to be caught by the legislation.

 The Respondents says the section 21 notice was valid back in 2011. They say that s.41(3) only applies to ASTs in existence on 1 October 2018 and this tenancy was a periodic tenancy. The Respondents say that subsection (2) of the Deregulation Act 2015 does not deal with periodic tenancies prior to 1 October 2015.

 If it was the intent for the legislature that s.41(3) should apply to all tenancies, then s.41(2) would not differentiate between prior to 1 October 2015 and after 1 October 2015 and this means that it was intended for periodic tenancies which came into being before 1 October 2015 to be excluded.

 The court cannot identify a mischief as the Deregulation Act 2015 already differentiates between periodic tenancies.

 In my judgment, this is a pure case of construction and the Appellant’s submissions are sound and the learned judge did err.

 s.41(3) is a long stop. It gave landlords 3 years to prepare for the full application of the Deregulation Act 2015. As a matter of pure construction, the provision applies to “any” AST, whether contractual or periodic.

 Looking at s.41(1), it refers to tenancies after 1 October 2015. Subsection (2) is expressly subject to subsection (3).

 Contrary to the Respondent’s argument, subsection (2) is dealing with two separate scenarios: s.5(2) tenancies after 1 October 2015 and an AST granted before 1 October 2015.

 Section 41(3) says any AST, and this includes any AST, howsoever created. Whether periodic or contractual.

I allow the appeal and set aside the order of possession”

Representation

The Appellant, Mr Adesegun Majiyagbe, was represented by Mr Simao Paxi-Cato of Counsel and Black Antelope Law.

A summary of this case appears in the October 2019 edition of Legal Action Magazine.

LGBT Asylum Claims for Bangladeshi Nationals

How are LGBT Asylum Claims from Bangladeshi Nationals viewed in the UK?

LGBT individuals with no or a precarious immigration status may be entitled to claim asylum in the UK if they have a well-founded fear of persecution should they return to Bangladesh.

Bangladesh remains one of 72 countries where homosexuality is illegal. In accordance with section 377 of the Bangladesh Penal Code, sexual activity between men, whether consensual or not, is illegal and punishable by a maximum sentence of life imprisonment. Freedom House reported in 2017 that “societal discrimination (against LGBT persons) remains the norm”.

In 2016, Xulhaz Mannan and Tonoy Mahbub, LGBTI activists were found hacked to death in Dhaka – a stark reminder of the intolerance and violence faced by sexual minorities. Their inability to trust law enforcement has often been justified as the National Human Rights Commission of Bangladesh has documented physical and sexual assaults on the LGBTI community by the police. Little has changed in recent years as sexual and gender minorities remain under “constant pressure and threat” in Bangladesh, according to Human Rights Watch’s World Report 2018.

LGBTI persons in Bangladesh form a particular social group because they share an unchangeable characteristic fundamental to their identity. If these LGBTI persons are in the UK and unable or unwilling (due to fear) to avail themselves of the protection of their own country, they may fall under the Refugee Convention’s (1951 UN Geneva Convention) definition of a ‘refugee’. The UK is obligated under international law to grant asylum to people who could be persecuted if they are returned to their home country.

When granting asylum, Home Office decision-makers primarily seek to find out whether a person will face a real risk of persecution on account of their membership of such a group. An LGBT person from Bangladesh is more likely to be successful if:

  • the person cannot live freely and openly as a LGBT person;
  • the person is unable to obtain protection from persecution; and
  • the person cannot relocate within the country to avoid the risk of persecution.

The Home Office has set out its general attitude to the above criteria in a Country Policy and Information Note published in November 2017. An LGBT person’s inability to live freely should go beyond merely attracting partners and maintaining a relationship. Their choice to live discreetly should not be a response to social pressure (cultural and religious reasons), rather it should be from a genuine fear of persecution. It is accepted that gay people are not systematically targeted and persecuted but may face persecution from non-state actors. Therefore, the specific facts of each case are crucial in influencing whether the above criteria are met.

Shaheen Mamun (Solicitor) of Black Antelope Law, alongside Counsel, Sharmistha Michaels of Drystone Chambers, have successfully represented several cases where Bangladeshi LGBT clients have been granted Refugee Leave to Remain at the First-tier Tribunal stage.

Sharmistha Michaels had the following to say:

‘The persecution of people because of their sexual or gender identity is unfortunately not a new phenomenon and the process of applying for asylum can be very daunting for members of the LGBTI community who are seeking safety and security through refugee status in the UK. People often have to face humiliating and bizarre questions and the allegation that they are simply lying about their sexuality at the asylum interview stage and before the First Tier Tribunal. We still see false stereotypes prevailing about how an LGBTI person should behave or appear, in decision letters, during cross-examination by the Home Office and even on occasion in the decisions of some Immigration Judges. This is despite the fact that Home Office Policy changed in 2015 in favour of a more sympathetic approach into the inquiry into an asylum seeker’s claim. Regardless of the problems with the conduct of asylum interviews for, the importance of these applications for a member of the Bangladeshi LGBT community seeking asylum is very clear, particularly given the criminalisation of same sex sexual activity, coupled with the worsening  situation for LGBT people in Bangladesh’.

How can Black Antelope Law help you?

If you identify yourself as either Lesbian, Gay, Bisexual, Transgender or Intersex (LGBTI), and cannot express this identity in fear of persecution you need to take action now.

Persecution is defined as the continued failure of a state to observe fundamental freedom and human rights coupled with the presence of serious harm by virtue of your membership to a particular social group: LGBTI.

As such, you have the right to Freedom of Expression by virtue of Article 10 of the European Convention of Human Rights, which offers you protection. Identification as an LGBT equates to membership of a particular social group, and therefore you may be eligible to claim Asylum. Asylum is a complex area of law riddled with a myriad of laws, rules and polices governing it. It is therefore essential to seek the most effective and streamlined guidance for the sake of your identity.

Equipped with extensive knowledge and experience, the human rights centric team at Black Antelope Law are dedicated to defending and protecting your rights. Black Antelope Law specialises in all UK Immigration Law matters and has developed an exceptional expertise in all LGBT Asylum claims beyond the Bangladeshi community. We have a notable reputation for successfully representing LGBT clients of all backgrounds when seeking asylum. Our team is trained with the requisite sensitivity and understanding in order to provide the most comfortable experience during the course of your case.  We are committed to helping members of the LGBTI community with these difficult applications and our team of experts can provide you with expert and sensitive advice on these claims. For more information, please contact us on 0330 223 3105 or [email protected] for a free initial discussion.

Shaheen Mamun Shortlisted for 2019 Junior Lawyer of the Year

Solicitor and Director of Black Antelope Law, Shaheen Mamun, has been shortlisted for the Law Society’s prestigious Excellence Awards 2019, the highest accolade for law firms and lawyers in England and Wales.

Shaheen has been shortlisted in the 2019 Junior Lawyer of the Year category. Lawyers in this category demonstrate an exceptional standard of work and excel in their role, providing excellent results for their clients and making a significant contribution to pro bono schemes.

Delighted to be nominated for the award, Shaheen said: “It is truly humbling to be shortlisted for this prestigious award amongst such talented lawyers. I hope this nomination reflects Black Antelope Law’s dedication to provide our clients with an excellent service.”

The shortlisting follows a successful year for Black Antelope Law, who were winners of the CorporateLiveWire Innovation & Excellence Awards 2019, a testament to the firm’s continuing commitment to make high-quality legal services as accessible as possible.

Law Society president Simon Davis said: “There are more than 140,000 solicitors in England and Wales – to be shortlisted for an Excellence Award is to be recognised as among the very best of the profession.

“The firms and solicitors shortlisted should be commended for going above and beyond to support their clients, often navigating tricky and sometimes contentious areas of the law.

The winner of the 2019 Junior Lawyer of the Year will be announced at a prestigious black-tie awards dinner in London on 23 October 2019.

Press contact: Saadia Sharmin – 0330 223 3105