Tuesday, 23 August 2016

Assured Shorthold Tenancy Agreements and the Deregulation Act 2015

Last October the Deregulation Act 2015 came into force and changed the scope of assured shorthold tenancy agreements (ASTs) and residential possession proceedings. The changes brought in under the legislation apply to all ASTs granted on or after 1st October 2015. We are now beginning to see possession proceedings which will are governed by the provisions of the 2015 Act.
The changes do not apply to fixed term ASTs granted before 1st October 2015. However, from 1st October 2018, the rules will apply to all ASTs.
Under the 2015 Act tenants are protected from ‘retaliatory eviction’. If a tenant has raised a legitimate complaint about the condition of the property and notifies the landlord in writing the landlord is required to deal with the complaint before being able to serve a valid section 21 notice on the tenant.
The 2015 Act removes the need for landlords to specify the last day of a period of the tenancy as the date on which the notice expires and the Act also introduces a prescribed form of section 21 notice.
The Act also brings in various legal obligations which a landlord must comply with. This includes, but is not limited to, having to provide the tenant with a gas safety and energy performance certificate before a valid section 21 notice can be served. 
Arguably the new provisions represent a further shift in the balance of power towards tenants and with the previous legislation already fraught with potential pitfalls it is crucial that landlords follow the correct procedure and obtain legal advice at an early stage. 
Tolhurst Fisher acts for a number of private landlords and managing agents. If you require any advice or assistance with regard to possession proceedings please do not hesitate to contact one of our dispute resolution solicitors.
Solicitor – Dispute Resolution department.

Tuesday, 26 July 2016

When is an oral variation of a contract binding?

A recent Court of Appeal decision provides new guidance on the effect of an oral agreement to vary a contract.
In MWB Business Exchange Centres Ltd v Rock Advertising Ltd there was a dispute relating to a claim for arrears of licence fees and other charges against Rock Advertising Ltd. The licence itself contained a clause, namely, Clause 7.6 which set out the following:
“This licence sets out all the terms as agreed…No other representations or terms shall apply or form part of this licence. All variations to this licence must be agreed, set out in writing and signed on behalf of both parties before they take effect.”
Rock Advertising Ltd, however, relied on an oral agreement made between one of its directors and MWB’s credit controller. This agreement between the two parties allowed Rock Advertising Ltd to pay the licence fees at a lower monthly rate for a certain number of months and then at a higher rate for the remainder of the licence.
The trial judge found that an agreement had been reached between the two parties meaning MWB’s credit controller had authority to bind the company.
Rock Advertising Ltd appealed this, stating that the licence or contract was open to both parties to vary the contract as a whole, in any way they choose, whether by an oral agreement.
The Court of Appeal agreed with Rock Advertising Ltd. Lord Justice Kitchen endorsed the comments of Lord Justice Moore-Bick in Globe Motors Inc v TRW Lucas Varity Electric Steering Ltd, stating:
“The parties are…free to include terms regulating the manner in which the contract can be varied, but just as they can create obligations at will, so also can they discharge or vary them, at any rate where to do so would not affect the rights of third parties”.
Kitchen LJ also went further endorsing a quote from a US decision of the New York Court of Appeals in which Cardozo J said:
“Those who make a contract, may unmake it. The clause which forbids a change, may be changed like any other. The prohibition of oral waiver, may itself be waived…What is excluded by one act, is restored by another. You may put it out by the door, it is back through the window. Whenever two men contract, no limitation self-imposed can destroy their power to contract again”.
This decision demonstrates that the principle of party autonomy will not just cover anti-oral variation clauses but also typical entire agreement clauses which seek to exclude any collateral agreements. It is therefore worth considering that if parties to a contract agree to dis-apply the existence of any collateral agreements, which run contrary to the contract itself, they may still remain enforceable.
Tolhurst Fisher has one of the largest specialist commercial teams in the region and is ideally placed to advise on this and any other commercial related matter.

Thursday, 7 July 2016

FRP Advisory Triathlon 2016


Tolhurst Fisher entered an individual and a teams into the inaugural FRP Advisory triathlon event in aid of Little Havens. a hugely enjoyable but hot day at Gosfield Lake Resort saw 32 teams and 19 individuals take part in a sprint triathlon.
our own RobertPlant came 1st  in the individual event.
our team with Maxine BarrettGraeme Provan and Attila Hunter came 7th in the team event.
Plans are ready in place to do even better next year.......
We would like to pass on our congratulations and gratitude to the organisers for all their hard work in arranging such a great event and we hope that the day will raise a significant amount of money towards a very worthy cause in Little Havens.