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hrenter
25-09-2011, 15:09 PM
Hi Everyone,
I've searched the forums but can't find a definitive answer to this one.

Do landlords need to comply with ss 47 and 48 of the Landlord and Tenant Act 1987 for holiday lets?

Specifically, do they need to provide a UK address for service and have a UK address for demands of the rent?

Thanks.

bhaal
25-09-2011, 15:38 PM
Yes. Section 46 makes sections 47 and 48 applicable to all residential tenancies except business tenancies.

hrenter
25-09-2011, 16:10 PM
Thanks. I've also just found:
Phillps & Ors v Francis & Anor [2010] EWHC B28 (QB) (24 March 2010) (http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2010/B28.html&query=DENNIS+and+PHILLPS+and+ROYNA+and+GODDARD&method=boolean)
which appears to deal with this issue.

So, if a holiday renter pays rent as a result of an agreement that doesn't comply with s.47 (in that it does not state the name and address of the landlord) of the LTA 1987 can the renter sue to recover the amount at a later stage?

theartfullodger
25-09-2011, 16:49 PM
You can sue but as renter has (presumably) suffered no loss you'd lose.

bhaal
25-09-2011, 17:38 PM
Why exactly are you looking to sue for a minor breach of the legislation. Did you suffer any prejudice due to the agreement not containing the landlord's address or a UK address at which they could be served?

hrenter
25-09-2011, 19:13 PM
Thanks for all the replies.

It's not an action for a minor breach. Many issues arose during the holiday let and it was not possible to commence proceedings during the let because there was no address for service. So looking at all options including an action for damages as well as recovering any rent that was not properly demanded.

islandgirl
25-09-2011, 19:46 PM
A lot will depend on the small print terms and conditions I suppose. Did you rent through an agency?

hrenter
25-09-2011, 19:51 PM
Yes, the letting was through an agent which is why the documentation was non-compliant.

I suppose the issue is all the LL needs to do is re-issue the demand for rent with a format that complies with s.47, even after the let is finished. It doesn't seem the Act says that the LL can't claim past rent.

islandgirl
25-09-2011, 19:53 PM
I can't imagine that all agency demands for rent do not comply with the law. Presumably the biggest agencies have thought about that one!

hrenter
25-09-2011, 19:56 PM
If you google "Short let agreements" or "Holiday Let agreements" I think you'll be surprised how many do not comply with s.47 - even the ones that you have to pay to download.

Given that it seems that the definition of a "dwelling" was still being debated until
Phillps & Ors v Francis & Anor [2010]
I'm not surprised.

Paul Gibbs
26-09-2011, 15:36 PM
Plus as soon as details are provided in accordance with s48 the rent becomes payable.

hrenter
26-09-2011, 15:39 PM
What would happen if the tenancy had come to an end before the LL provided the proper notice and demands for rent?

islandgirl
26-09-2011, 16:32 PM
But with holiday lets you pay before the let....

hrenter
26-09-2011, 16:35 PM
@islandgirl - Not in all cases.

Lawcruncher
26-09-2011, 17:21 PM
Section 47 requires the landlord's address to be shown in a demand "for rent or other sums payable to the landlord under the terms of the tenancy". However, if the section is not complied with it is only "the amount demanded which consists of a service charge" which is not due.

Section 48 provides that until a landlord has given notice of an address in England and Wales for the service of notices no rent is due until the section has been complied with.

The effect of both sections is that the landlord cannot enforce payment of the relevant sum until there has been compliance. I do not think it can be extended to mean that any payment made before compliance can be recovered by the tenant.

hrenter
26-09-2011, 17:59 PM
Thanks, that's my understanding. I was seeing if there was any precedent or reports to the contrary.

If rent and service charges were paid under an invalid notice, the effect is that the money's were paid effectively in error as the LL is not entitled to the funds. I would have thought in such a case the T can bring an action to recover the moneys. The L would need to issue a new demand that complies with ss 47 and 48 and only then would moneys be due.

If the L never wishes to disclose the name and address (for whatever reason), then the T has no obligation to pay rent and service charges.

Lawcruncher
26-09-2011, 19:42 PM
If rent and service charges were paid under an invalid notice, the effect is that the money's were paid effectively in error as the LL is not entitled to the funds. I would have thought in such a case the T can bring an action to recover the moneys.

I do not think that that can be the case, though there may be authority to the contrary. As I see it, it is not that the money is paid in error - that suggests it is not payable at all - but rather that it was paid before it needed to be paid.

islandgirl
26-09-2011, 21:21 PM
@hrenter - as a holiday home owner I would love to know how a customer cannot pay in advance? Every agency I have ever seen takes a deposit then the balance 4 or 6 weeks before the holiday. How else could the owner be sure to get the money? You would certainly not pay after the holiday. This sounds increasingly not like a holiday let! When did you have to pay?

hrenter
26-09-2011, 21:26 PM
The issue revolves around a 4 months rental. Part of the argument is whether it is indeed a holiday let (but that's another issue). The payment schedule is 2 months in advance and then the balance mid way through the rental.

The agreement does not comply with the LTA which makes it problematic to issue demands and proceedings etc. Therefore looking at all options. Hence this discussion thread.

islandgirl
26-09-2011, 21:29 PM
I thought so. I thought max for holiday let was 30 days.

hrenter
26-09-2011, 21:32 PM
Max? For which legislation or situation did you have that impression?

theartfullodger
26-09-2011, 21:44 PM
It's not a holiday let it's (assuming rent low enuf) an AST regardless of what the paperwork said.

So, unless this was engineered by Tenant, Landlord is on the fiddle : I'd assume he's fiddling mortgage, tax,insurance, - probably beats his valet also.

Does he live outwith UK?

hrenter
26-09-2011, 21:49 PM
It's not a holiday let it's (assuming rent low enuf) an AST regardless of what the paperwork said.
I'm aware of that point. The rent is below the $100K threshold. And factually it's not a holiday, but an AST.
But the problem is getting the LL details so that proceedings can be commenced to rectify, clarify and resolved.
The clock is ticking.



Does he live outwith UK?
I believe so, for some of the time anyway.

theartfullodger
26-09-2011, 22:02 PM
How long was the initial fixed period of the alleged "holiday let"?? Did the agent know there was a fiddle going on? Have you written (yes, written) to agent requesting Landlord actual name & address?? (Not c/o agent)?? What address was given in original tenancy for Landlord (use thatvfor service) .

Most significant, what actual losses have you incurred???

hrenter
27-09-2011, 07:17 AM
How long was the initial fixed period of the alleged "holiday let"??
4 mths

Did the agent know there was a fiddle going on?
Don't know - how would one ever know that?

What address was given in original tenancy for Landlord (use thatvfor service)
Unlikely to be useful. It's the rental premises address

Most significant, what actual losses have you incurred???The premises does not accord with the brochure. Missing items, agent not fixing broken or missing items, the list goes on. And anticipate a barney over the security deposit at the end of 4 months as its not in a deposit scheme.

theartfullodger
27-09-2011, 07:57 AM
(I'm no legal expert but..) can't see any sensible court deciding a 4-month let was a genuine "holiday let".

As your contract gives LL address as property I think it is valid to serve (posted twice, each with free **proof of postage** from two different post offices) papers/notices/court stuff to that address. Was his mail being re-directed (ie did nowt arrive for him at all??)

If not done so already, write (yes, write) to agent referencing Landlord & Tenant ACt Section 1 and request LL's real name & address - and note possible criminal offence if fail to respond.

Have you spent £4 with Land Registry
https://www.landregistry.gov.uk/wps/portal/Property_Search
to see if LR has an address for property owner??

Have you asked neighbours, postman, local shops??

I asked about agent knowing about fiddle (well, 4 months, they musta, surely??) as if so I'd wish to go, calm & polite, with witness, request interview with manager, explain dodgy actions of his operation & request all details they hold on owner & return of deposit if they hold it. Mention of "fraud" (careful with that wording..) might be fun..

If owner is domiciled outwith UK then the agent (if you paid them..) should either have HMRC paperwork saying OK to give owner all rental income, or to withhold 20% for taxman: Google "Non resident landlord" and HMRC. If relevant ask agent can you see HMRC paperwork or would they prefer you to take the matter up with HMRC...

Expect others may differ in their views..

Why on earth did you agree to a clearly suspect/dodgy/fraudulent contract in the first place??

Lawcruncher
27-09-2011, 08:21 AM
Tenancies which cannot be assure tenancies include: "A tenancy the purpose of which is to confer on the tenant the right to occupy the dwelling-house for a holiday" (Schedule 1 HA 1988). There is no mention of a minimum period. It should be noted that it does not say "used for a holiday".

theartfullodger
27-09-2011, 09:38 AM
Possible interesting case...




Buchmann v May
[1978]

Court of Appeal

Courts should be ‘astute to detect a sham’ but for tenant to establish this
Mr May was a New Zealander. Mrs May, his wife, was an Australian. They
were living and working in England on a series of temporary residence
permits. In 1972 Mr Buchmann let premises to Mrs May for six months.
This was followed by a succession of short-term tenancies which did not
enjoy Rent Act protection because they were furnished and granted before
the Rent Act 1974 came into force. Mr and Mrs May then went abroad. On
their return they contacted Mr Buchmann, saying that they would be in
the country for a few months before going abroad. They signed a three-
month tenancy agreement which stated that the letting was for the pur-
pose of a holiday. Mr and Mrs May, in subsequent possession proceedings,
denied that the purpose of the tenancy was for a holiday.
The Court of Appeal held that the labels put on a transaction are not
conclusive, but that where a tenancy agreement expressly states the pur-
pose for which it is made, that statement is evidence of that purpose un-
less the tenant can establish that it does not correspond with the true
purpose, either because the express label is a sham or because it is a false
label. Although a court will be ‘astute to detect a sham where it appears
that a provision has been inserted for the purpose of depriving the ten-
ant of statutory protection under the Rent Acts’ ([1978] 2 All ER at 999),
the burden of proof lies on the tenant. In this case there was no evidence
D8 Holiday lets (HA 1988 Sch 1 para 9 and RA 1977 s9)..
which displaced the express purpose and, accordingly, there was no Rent
Act protection. The court accepted the dictionary definition of a holiday as
‘a period of cessation of work, or period of recreation’.

hrenter
27-09-2011, 14:21 PM
...occupy the dwelling-house for a holiday" (Schedule 1 HA 1988)....It should be noted that it does not say "used for a holiday".
What do you see as the difference?

Lawcruncher
27-09-2011, 17:25 PM
What do you see as the difference?

You book a cottage after seeing it advertised as available for holidays. Without informing the landlord you in fact use it as a base while you are working on a project in the neighbourhood. The letting is a holiday let as the intention was to let it for a holiday even though not used for a holiday.

hrenter
27-09-2011, 17:35 PM
You book a cottage after seeing it advertised as available for holidays.
It wasn't advertised as a holiday let. The agent was advised as to the activities the tenants would be doing which are inconsistent with a holiday. The only mention in relation to a holiday let is in a sentence in the shortlet agreement

Lawcruncher
27-09-2011, 17:38 PM
It wasn't advertised as a holiday let. The agent was advised as to the activities the tenants would be doing which are inconsistent with a holiday. The only mention in relation to a holiday let is in a sentence in the shortlet agreement

Does not look like a holiday let then.

I think it would help if you could explain your problem and what you are trying to prove as whether or not it is a holiday letting may turn out to be irrelevant.

hrenter
27-09-2011, 17:48 PM
I think it would help if you could explain your problem and what you are trying to prove as whether or not it is a holiday letting may turn out to be irrelevant.

Agree. The point is getting a bit lost now. BTW, this is a terrific discussion forum - thanks to everyone for their input do date.

So restating the issue. I originally posted a question to seek the forum's opinion on what happens if a LL does not comply with s.48 of the LTA and does not provide an address in the rent demand, and what remedies there might be.

The more substantial issue is that the LL has not put a security deposit into a scheme. So, to compel the LL to do so requires proceedings to be commenced which also require an address for service. The holiday let is linked to the deposit issue as the LL is arguing that it is a holiday let which does not require deposits to be put into a scheme.

What does appear clear is that even if its a holiday let, a LL must still comply with s.48 and s.1 of the LTA to provide an address.

islandgirl
27-09-2011, 19:01 PM
In which case just about every cottage in every brochure does not comply!

islandgirl
27-09-2011, 19:08 PM
@hrenter
The information I have regarding max length of holiday lets relates to HMRC and the tax treatment of furnished holiday lets

Q2 What are the qualifying conditions?
Certain conditions must be met in order to qualify for the tax treatment provided under the
current FHL rules:
1. the property must be situated in the UK; (though see chapter 3)
2. the business must be carried on commercially, and with a view to a profit;
3. Pattern of occupation: Total periods of longer term occupation must not exceed 155
days during the relevant period. A period of longer term occupation is a letting to
the same person for longer than 31 continuous days;
4. Availability: the property must be available for commercial letting as holiday
accommodation to the public for at least 140 days during the relevant period; and
5. Letting: the property must be commercially let as holiday accommodation to
members of the public for at least 70 days during the relevant period. A letting for a
period of longer term occupation is not a letting as holiday accommodation for the
purposes of this condition.

Lawcruncher
27-09-2011, 19:28 PM
Has the property at any time been occupied by the tenant as his his only or principal home? If the answer is "no" then the letting is not an AST and so whether it is a holiday letting is irrelevant.

hrenter
27-09-2011, 22:22 PM
Has the property at any time been occupied by the tenant as his his only or principal home? If the answer is "no" then the letting is not an AST and so whether it is a holiday letting is irrelevant.
The question is easier answered in the positive.
For the period of the tenancy it's the only and principal home of the tenants.