English law is considered to be one of the great legal systems of the world, large parts of which are ruled by laws that originated in England over 1000 years ago.
Property matters in England & Wales are governed by the law of the state which might be defined as: rules of human conduct, imposed upon and enforced among, members of the state. If the rules are broken, compulsion is used to enforce obedience.
Elements of English law have been formed over many years out of the customs of the people – “common law” or “judge-made law”.
However, the greater part of the law has been created by statute – Acts of Parliament, and in some cases now, by virtue of the UK’s membership of the EEC, European Law. Together the common law and statutes are referred to as the “Law of England”.
The UK does not have a single system of law. Although they are very similar in nature, there are separate systems operating in England and Wales, Northern Ireland and Scotland. This site concerns itself with the jurisdiction in England and Wales only.
There is legislation to cover most aspects of peoples’ lives, much of it aimed at protecting the citizen as consumer.
There are two main areas of English law which affect property:
- Criminal Law– covering areas of offence against the state and punishable by the state.Much of the legislation affecting property management comes under the criminal law heading. For example, the Gas Regulations.
Several agencies have a role in preventing and detecting crime, and punishments for crime range from prison and fines to acquittal and absolute discharge:
- The Police
- The Local Authority – Trading Standards, Environmental Health, Health & Safety Officer and Fire Officer.
- The Health & Safety Executive (HSE)
- The Environment Agency
- The Inland Revenue – Stamp Duty, Income and Capital Gains Tax
- HM Customs & Excise – VAT.
- Civil Law – is concerned with the rights and duties of individuals towards each other. For example, Law of Tort (civil wrongs such as nuisance, negligence or trespass), Law of Contract (enforcement of a promise). In civil law legal action is initiated by the private citizen to establish rights.
- Property LawsThe law in England & Wales concerning property is some of the oldest, thus the law incorporates some very ancient legal concepts. The basis of this law is common law, mainly concerning contracts (leases, licenses and tenancy agreements) between landlord and tenant.
Civil court judges make decisions concerning agreements between landlord and tenant establishing precedents which future cases follow.
What complicates things is that however comprehensive the agreements are between landlord and tenant (some agreements run to tens of pages of clauses) various Acts of Parliament often override what the parties have actually agreed.
This is further complicated by the fact that the law is not covered by one statute, but by many diverse acts amended at various stages and interpreted at various times by different cases and different levels of court, the House of Lords being the final arbiter.
There is a slight difference in emphasis between commercial tenancies and residential ones. Whilst there are statutes which govern the conduct of the parties to a commercial lease agreement during the lease term, in the main it is a common law contact between the parties.
The statutory rules which govern commercial leases (Landlord & Tenant Act 1954 part 2) only come into effect at the end of the lease term. This then concerns mainly security of tenure issues – the right to continued occupation.
It is also possible, in the case of a commercial lease, where the parties agree and at the civil court’s discretion, to opt out entirely from the statutory regulations. This leaves the relationship on a purely contractual basis.
In the case of residential tenancies the statutes have a bearing on the conduct of the parties from day one – statutory rules are much more likely to overrule any contractual agreement made between landlord and tenant in a residential tenancy.
A site like this does not intended to make landlords into expert lawyers – the information we provide is of a general nature only and does not cover every case or issue. Our advice would always be:
- Make yourself aware of the rules to avoid falling foul of the law and to avoid expensive litigation at all costs.
- Although property law is complex, some knowledge of the issues involved gives the enlightened landlord (and tenant) some added security when dealing with lettings.
- If you have a specific legal issue which you cannot resolve between the parties you should consult a qualified solicitor, a chartered surveyor or the Citizens Advice Bureau.
Those landlords who are largely ignorant of the law and the rules of property management could well find themselves in real trouble.
Landlords who resort to civil law and legal machinery will find themselves getting into a very expensive process – leave this to the big boys. If you do find that you need the services of an expert, try to find one that specialises in property matters. Our directories list experts in this category for various parts of the country.
With a little knowledge, there are some areas of the law which landlords can use to great advantage and at little expense to themselves. The Small Claims Court service is ideal for small debts up to £5,000 and is a process the amateur can manage.
Possession proceedings is another area that landlords may like to peruse themselves, though great care is needed and if in doubt use a good solicitor, preferably one that specialises in property.