Question has certain responsibilities towards the other[1]. The Landlord

Question 1

It is imperative to note that if you
rent a home from a private landlord, you should be aware of your rights in
order to make sure your landlord does not take advantage. At the same time you
must make sure to keep to your tenancy agreement to avoid any potential
problems which could arise. The law on tenancies tries to balance the rights of
tenants and landlords to ensure that both groups are fairly treated. Each side
also has certain responsibilities towards the other1.
The Landlord and Tenant Act, 1985 provide security of tenure for occupying
tenants under certain leases of residential property at low rents and for
occupying sub-tenants of tenants under such leases2.
Though widely regarded as a pro-landlord laws, rents in the UK can be freely
negotiated when a contract is signed. As such, the UK law gives the tenant no
protection against retaliatory eviction by the landlord3,
with a eviction notice of two months given.

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If you are a tenant, you have the
right to:

1.     have the property you are living in be safe
and in good condition

Your landlord is accountable for many of the repairs to the property,
and must ensure that it is a safe place to live (see the Repairs section below
for more information).4

2.     live in the property undisturbed

This means that your landlord cannot worry you unremittingly while you
are living in the property. If they demand to visit the property to carry out
any form of  repairs or for an
inspection, they are obliged to give you 24 hours’ notice to do so, and they
must arrange to visit at a reasonable time with the only exception applicable
to emergency repairs, in which case they can access the property immediately.5

3.     be aware of who your landlord is

If you are not sure who your landlord is, you can write to the last
person to collect your rent to ask. Request the landlord’s full name and
address, and be sure to send the letter by recorded delivery and retain a copy.6

4.     challenge 
charges that you feel  are too
high

As a tenant, you have the right to contest bills such as energy charges,
if you think the charge are high. You can ask them for an explanation of how
they work out the charges.

5.     view an Energy Performance Certificate (EPC)
for the property

An Energy Performance Certificate shows the energy efficiency and
typical energy costs for a property and also suggests how monies could be
saved.

6.     Protection against unfair eviction and
unreasonable rent increases

There are processes that your landlord must follow if they wish to evict
you, and if they fail to do so then you can take action against them7.
They also have to obey certain rules about how much they can increase your
rent, and when.

7.  
Receive a written tenancy agreement for a fixed-term
tenancy for more than 3 years

In most cases, you will not have any right to a written copy of the
tenancy agreement. However, if you are in a fixed-term tenancy lasting longer
than 3 years, you have the legal entitlement to receive your tenancy agreement
in writing.

8.    
Retrieve your deposit back after the expiration of the
tenancy, and have it protected when applicable

Your
landlord cannot simply retain your deposit or part of your deposit without having
a good reason, and in most scenario they must put it in a tenancy deposit
protection scheme soon after been in possession with the deposit.

There exits various regulations
and statutory forms that property tenants from the malicious landlords. Such
regulations such as the Landlord & Tenants Act, 1985, Leasehold Property
(Repairs) Act, 1988, The Housing Act of 1988 dominate private rented sectors
and parts of the public sector, providing a framework of tenancies that proffer
adequate protection against unfair rent increases and evictions. Though minor
changes were introduced by the Housing Act, 1996, the various regulations and
standards landlords must adhere to remain consistent8. Regulations such as
Safety, Building regulations, HMOs, HHSRS safety rating system – designed to
assess different categories of hazard – have seen increased use when dealing
with assured and assured shorthold tenancies.

Due to the Conservative Party’s
policy tasked with deregulating and dismantling rent regulation, the Housing
Act 1988 was instrumental in abolishing regulations set for new tenancies,
creating a “freedom of contract”9
by landlord to set any price.

For periodic tenancies (that is, tenancies which run from month to month
or week to week), your landlord generally cannot increase your rent more than
once a year unless you agree to it.

Regardless of the type of tenancy you have, your landlord cannot raise
the rent by an amount more than previously agreed unless you are willing to
accept this. They should also only increase rent in line with similar
properties in the area – they cannot push for an unrealistic or unfair increase
in your rent.

Your tenancy agreement may set out a procedure for proposing a rent
increase, and if it does then your landlord must use it. If not, they have
several options.

If you enter into a fixed-term tenancy, rent can be increased when
tenancy agreement is been renewed after the initial fixed-term period is over,
or fill out a government form entitled ‘Landlord’s notice proposing a new
rent’, which will do the same thing.10

In any tenancy, they can raise the rent by negotiating an increase with
you and having you both sign an agreement stating this. Otherwise they will
have to issue a section 13 notice in accordance with the Housing Act 1988, allowing them to increase your rent without your
agreement and without having to have mentioned it in the tenancy agreement.
However, this can only be done after the initial fixed term has elapsed.11

If you oppose  a rent increase, you can appeal to the  Residential Property Tribunal, who would be able to look
at the amount you are obliged to pay and they decide whether it is fair. You
should not hesitate to contact them if you receive a notification from your
landlord that they intend to increase your rent and you do not feel that the
increase is fair or proportionate.

The Housing Act 1988 sets out certain grounds for possession which allow
a landlord to ask a tenant to leave even during a fixed-term tenancy. Examples
of these include; the tenant is failing to pay their rent and is in arrears, the
tenant is using the property for illegal purposes or engaging in antisocial behavior,
the tenant is causing extensive damage to the house or its furnishings.

In these cases the landlord will still need to give a notice period
ranging from two weeks to two months, depending on which grounds for possession
they are using.

Furthermore, it is illegal for a landlord to try to evict a tenant
without having gone through the correct court procedures first. Landlords can
also sometimes resort to using harassment to try and gain back possession of
their property. In these cases, the tenant has the right to claim damages
through the court.

The term harassment in this context refers to anything the landlord does
or doesn’t do which makes the tenant(s) feel unsafe or forces them to leave the
property. The main examples of this are: putting a stop to services such as
electricity, not giving out enough keys to the property, ignoring the tenant’s
requests to carry out repairs, anti-social behavior by the landlord or someone
associated with the landlord, threats and physical violence.

If a landlord wishes to evict a tenant from their property, they must
first give a notice that they intend to do so. If after this notice such tenant
fails to leave the property, the landlord can apply to the courts for a
possession order, which would legally force you to leave the property. Your
landlord would be classed as acting illegally if; You are not given the correct
amount of notice, You return to the property to find the locks have been
changed, the landlord evicts you without first applying for a court order.

If the property you are renting is being repossessed, the landlord’s
mortgage lender must give you notice before you are evicted. If you have an
assured short hold tenancy then the lender will have to honor the terms set out
in your agreement. You may also be able to apply for possession to be postponed
for up to 2 months if your landlord’s lenders are unaware of your tenancy. In
these instances, you can either talk to the landlord’s mortgage lender directly
or you can do it through the courts.

From the above analysis, it can therefore be stated the Housing Act 1988
is effective for the protection of tenants from illegal eviction and
unreasonable rent rises.

 

 

 

Question
2

Undue influence, a field of contract
and property law, sets aside transaction procured by the influence exerted by
one person on another such that the transaction cannot be fairly be treated by
the expression of that person’s free will1213. In the case of Barclay
Bank v. O’Brien14, two categories of undue
influence – actual undue influence and presumed undue influence – was reviewed
as strategic viewpoints to ensure that the remedies available for the
defendants might restrict the capacity of a Mortgage. During the course of this
argument, the categorization of undue influence where the claimant must prove
that the wrongdoer exerted undue influence directly (actual undue influence) or
where the relationship of trust and confidence or a special relationship
(presumed undue influence) would be analyzed.

Undue influence operates where there exists a
relationship between the parties which has been exploited by one party to
gain an unfair advantage.  Where a contract is found to be entered into as
a result of undue influence, this will render the contract voidable. This will
enable the person influenced to have the contract set aside as against a
party who subjected the other to such influence. In addition, in some instances
the party influenced may be able to have a contract set aside as against a
party who was not the person inflicting the influence or pressure.

There are three classes of undue
influence which were set out in the case of Bank of Credit
& Commerce  International v Aboody 1990 QB 92315

Class 1 –
Actual undue influence

Class 2A –
Presumed undue influence

Class 2B –
Presumed undue influence

Class 1 – Actual undue influence

Actual undue influence,  requires evidence that the contract was
entered into as a result of actual influence applied. The claimant must plead
and prove the acts which they assert amounted to undue influence.

Class 2A – Presumed Undue Influence

Under Class 2A there is no
requirement to prove that improper influence was actually exerted.
Instead it must be established:

1.     There was a relationship which as a
matter of law gives rise to a presumption of undue influence

2.     The transaction is one which cannot
readily be explained by the relationship of the parties.

The solicitor: client relationships
is one capable of giving rise to an automatic presumption of undue influence
are those of a fiduciary nature

Class 2b – Presumed undue influence

Under class 2b there is no instinctive
presumption arising as a matter of law. Here it must be proven  that there is a relationship of such a kind
that one party in fact placed their trust and confidence in the other to
safeguard their interest. The important distinction between class 2a and 2b is
the fact that the trust and confidence relationship must be proved.

In 1807 Lord Eldon in Huguenin v Baseley16
held that undue influence is a doctrine utilized by the courts of equity to set
aside a transaction that has been obtained by the use of undue influence, in
the sense that the transaction was not the pure voluntary and well understood
act of the influenced party, but a transaction entered into without knowledge
of the effect, nature and consequence17.

Also,
in the case of Barclays bank v O’Brien 1992, the House of Lords classified
presumed undue influence cases into Class 2A and Class 2B. Similarly explored
in the case of Royal Bank of Scotland v. Etridge (No. 2) 199818,
the Constructive notice – where inquiry is made whenever a wife offers to stand
surety for her husband debts – is made applicable. Earlier cases address undue
influence in the context of testamentary planning, whereas more modern case law
demonstrates its applicability in other corresponding instruments such as
powers of attorney, inter vivos gifts
and wealth transfers19.

As
a mortgage is essentially a contract and the presence of any vitiating factors
such as undue influence or misrepresentation may make the entire agreement void
and thus unenforceable. The court of appeal in Bank of Credit and Commerce International S.A. v. Aboody20
set out the categorization of cases undue influence into either class 1 of
actual undue influence whereby one party to the transaction can prove on the
facts that the other party to the transaction exerted undue influence through
an act openly carried out amounting to improper pressure.

Instances where a mortgagor has claimed
that the mortgage is void because of undue influence, such mortgage may be
struck down on the ground that it was obtained by undue influence of the
mortgage directly, or by the undue influence of a third party that is
attributable to the mortgagee, as shown in the case of Barclay bank v O’Brien21
where the husband induces his wife to sign a mortgage over the jointly owned
matrimonial home. In either case, if
the plea is successful, mortgagor who is released from the mortgage might
nevertheless be required to repay part of the sums lent if he derived some
material benefit from it, but the mortgage itself may be unenforceable.

In cases where an undue influence plea is
successful, the mortgagor who is recently released from his mortgage rights
might be required to repay part of the sum lent, if he derived some material
benefit from it, though the mortgage itself maybe unenforceable. Likewise, as
illustrated in the verdict of Allied Irish Bank v. Byrne 199522, the
mortgage may lose its proprietary claim to the land in priority to the victim
of the undue influence, resorting to other means of recovery. Furthermore,
mortgage may be set aside for undue influence in so far as it binds the
‘casualty’ in situations of actual undue
influence or presumed undue influence.
Affirmatively, undue influence may be applied from facts of case such as
husband standing over a wife with a shotgun, to a wife threatening to leave
unless he signs, however, influence must be both ‘actual’ and ‘undue’.

1  
Davidson, B. “Your Rights as a Private Tenant” https://www.housingadviceni.org/advice-private-tenants/your-rights-private-tenant
(Accessed 9th January, 2018)

2 Landlord & Tenant Act, 1985, Chapter 56(2) and 3 Eliz 2 (Accessed
12th January 2018) –
http://www.legislation.gov.uk/ukpga/Eliz2/2-3/56

3   Global Guide, ‘UK Law Is Pro-Landlord’ (Global
Property Guide, 2018)

accessed 16 January 2018.

4 ‘Your Rights
As A Tenant | Law On The Web’ (LawOnTheWeb.co.uk, 2018)
accessed 16 January 2018.

5 ‘Your Rights
As A Tenant | Law On The Web’ (LawOnTheWeb.co.uk, 2018)
accessed 16 January 2018.

6  
FindLaw, “Tenant Rights” http://realestate.findlaw.com/landlord-tenant-law/tenant-rights.html
(Accessed 8th January, 2018)

7 See Ending a tenancy –
https://www.tenancy.govt.nz/ending-a-tenancy/

8 Thomas Merrified, Letting Residential Property in the UK (assessed
on 9th January, 2018)

9  
Levision  v  Patent Steam Carpet Cleaning CO LTD 1978 1QB 69, 1977

10 ibid

11 
Crew, D. “The Tenant’s Dilemma – Citizen’s Advice” http://www.citizensadvice.org/uk/global/migrated…/tenants-dilema
(Accessed 7th January, 2018)

12 Edwin Peel, Treitel On The Law Of
Contract
(Sweet et Maxwell 2015).

13 Royal Bank Of Scotland Plc V Etridge
(No. 2) 2002 Ukhl 44

14 1993 UKHL 6, 1993 4 All ER 417

15    1992 4 All ER 955

16
1803-13 All ER Rep 1, per Lord Eldon, p 13.

17
Tine Yee, 2008, The Etridge Influence on Undue Influence: Attempts at Fusion
with Duress and Unconsionability

18
?UKHL
41,, 2 AC 773

19
Kimberly Waley, 2017, Undue Influence: Estates and Trust Context, Law Society
of Prince Edward Island

20 Bank of Credit and Commerce
International S.A. v. Aboody

21 Barclays Bank v O Brien 1994 1 AC 180

22 1995 1 FCR 453