LEGAL UPDATE

1. LEGAL UPDATE MacDonald Botley Park HOTEL4th June 2014 PRESENTED BY ROBERT BOLWELL

2. ODD ONE OUT Eric Pickles MP Mark Prisk MP Kris Hopkins MP Paul Flowers

3. ALL CHANGE FOR THE REGULATORS OFT/RIP • Abolished on 31 March 2014 • Competition and Markets Authority (CMA) • HM Revenue & Customs • Powys County Council

4. WHO DOES WHAT • Competition and Markets Authority • Mergers and acquisitions • Guidance on codes of conduct and unfair contract terms • Consumer protection from unfair trading • Competition issues (e.g. cartels)

5. Mission Statement “Our mission is to make markets work well in the interest of consumers, businesses and the economy, and our overall ambition is consistently to be among the leading competition and consumer agencies in the world” • Budget of £50 million p.a

6. WHO DOES WHAT? HM Revenue And Customs • Money laundering • proceeds of Crime Act 2002 • terrorism Act 2000 • money Laundering Regulations 2007 • Registration • Core obligations • identify & manage risk of possible exploitation • nominated reporting officer • commit resources

7. Actions needed i) risk assessment ii) policy statement on how that risk is managed iii) train staff iv) regular review v) keep records for 5 years • In practice • identify customers and beneficial interests • sources of finance • unusual requests e.g. multiple buyers/sellers of a single property • non face to face clients National Crime Agency – 020 7238 8282

8. WHO DOES WHAT? Powys County Council • Public register of Estate Agents • Banning orders if not “fit and proper” • National Trading Standards Estate Agents Team • £170,000 annual budget i) three new staff ii) £20 million in cuts for the County

9. SUPERSTRIKE LTD v RODGRIGUES • Tenancy a year less a day starts 8.1.2007 • Non registration of deposit • Statutory periodic tenancy – S.5 Housing Act 1988 • S.21 Notice • Grounds of Appeal

10. THE LEGAL ARGUMENT • Did the “roll over” constitute a new tenancy? • If so, had the deposit been “received” at the start of the new tenancy? • N and D (London) ltd-v-Gadson 1991 • S.5 Housing Act 1988 • S.212(5) Housing Act 2004 • Legal obligations at end of tenancy

11. DEREGULATION BILL 2014 S. 215A • A tenancy deposit shall not be treated as being paid or received in connection with a shorthold tenancy by reason only of the deemed grant of a statutory periodic tenancy pursuant to the provisions of section 5(1) of the Housing Act 1988 (“the 1988 Act”). • Subsection (1) shall apply (and shall always be deemed to apply) in respect of any tenancy deposit whenever it was paid or received whether before or after the coming into force of sections 212 to 215 of the Housing Act 2004 (“the 2004 Act”).

12. 3) Where - (a) a tenancy deposit has been received in relation to a shorthold tenancy 1under a tenancy (“the original tenancy”); (b) the original tenancy was granted as a fixed term tenancy; (c) the original tenancy commenced before 6 April 2007 (d) immediately upon the expiry of the fixed term of the original tenancy a statutory periodic tenancy was deemed to be granted pursuant to section 5(1) of the 1988 Act;

13. (e) the initial requirements (as defined by section 213(4) of the 2004 Act) have not been complied with in respect of that tenancy deposit; and (f) no event has occurred on or after 6 April 2007 which would otherwise require that tenancy deposit is to be protected in accordance with an authorised scheme under section 213 of the 2004 Act the provisions of subsection (4) shall apply to that tenancy deposit.

14. The initial requirements under section 213(4) of the 2004 Act and the requirements of section 213(6) of that Act (relating to prescribed information) must be complied with in respect of any tenancy deposit referred to in subsection (3) within 3 months of the date when the provisions of this Act come into force. • The expressions “tenancy deposit” and “shorthold tenancy” in this section shall have the same meanings as for the purposes of sections 212 to 215 of the 2004 Act.

15. SPENCER v TAYLOR • AST 6 months from 6th February 2006 • Periodic after 5th August 2006 • Rent paid weekly on a Monday • Notice under S.21 (4) (a) to expire on a Saturday • Saving clause – see Lower St. Properties v Jones • Confusion?

16. S.21 (1) (b) NOTICES • 2 months to expire any time after the fixed term ends • “MAY be given before or on the day on which the tenancy comes to an end” • May = permissive NOT proscriptive • Fernandez v MacDonald (2003) • S.21 (4) (a) notice if tenancy periodic from the start?

17. IMMIGRATION BILL • Applies to tenants in residential property used as main or sole residence (i.e. AST’s) • Exempt nationals: -UK -EEA (i.e. EU plus Iceland Liechtenstein and Norway) -Switzerland (?) • “Right to Rent” at start of let • £3000 penalty per individual

18. Defence • Good forgeries • Agent agreed that landlord would do checks • Be prepared • Check status of all tenants • Let landlords know • Informant status • Support • Telephone enquiry line • Website • Credit reference agencies • Start date? • Royal Assent 14th May 2014

19. CONSUMER CANCELLATION RIGHTS • Contracts entered into on or after 13 June 2014 • Consumer • Individual (acting outside normal trade) • Exemptions • Finance • Food and drink • Gambling • Construction projects • Rental accommodation • Anything over £42

20. On/off premises and distance selling • Information • 14 day cancellation (off premises and distance selling) • Guarantees? • Durable medium • Schedule 1 – on site • Schedule 2 – off site and distance selling • Schedule 3 – cancellation rights

21. QUESTIONS?