Author: Wellers

The much-criticised practice of some landlords and their agents of excluding those in receipt of state benefits from obtaining private rented accommodation has been effectively outlawed by a judge’s ruling on the basis that it amounts to indirect disability discrimination.

The case concerned an energetic and determined young man who wished to provide for his large family but who suffered from physical and mental disabilities, including an emotionally unstable personality disorder. He and his wife received state benefits, including housing benefit, which totalled over £2,400 a month. Living with a relative in very cramped conditions, he was desperate to find a new home to rent and identified three suitable properties that he could easily afford.

After he telephoned a letting agency, however, he was informed that none of the properties would be let to people on benefits and that it was company policy ‘not to accept DSS’, an acronym which refers to the long-defunct Department for Social Security. With the backing of housing charity Shelter, he launched proceedings against the agency under the Equality Act 2010 on the basis that it had operated an unlawful and discriminatory policy, criterion or practice (PCP).

Upholding his claim, the judge accepted his account of what was said during the phone call and noted that one of the properties had been advertised using the words ‘no pets, no smokers, no DSS’. The agency would have been aware from the trade press of controversy surrounding ‘no DSS’ policies and that they disadvantaged disabled people disproportionately.

Although the relevant PCP was applied to all the agency’s prospective tenants, statistics put forward by Shelter starkly underlined its particular impact on disabled people, who are between three and five times more likely to claim housing benefit than non-disabled people. They are thus also three to five times more likely to be excluded by ‘no DSS’ policies from obtaining private tenancies.

The man had suffered considerable distress following the phone call. He felt written off and disrespected because he was in receipt of state benefits. He considered that a lesser value had been placed on him as a human being than on others who receive their income by way of salary, trust fund or parental support. The judge ordered the agency to pay him £6,000 in damages to reflect the injury to his feelings.

If you feel that your neighbours’ building plans will impact on your views or otherwise harm your enjoyment of your home, you should not hesitate to consult a solicitor. In one case, a couple who did just that succeeded in blocking construction of a strikingly modern house on land adjoining their garden.

The couple’s neighbours had obtained planning permission for the new house in the garden of their existing home. However, the title deeds of their property contained a restrictive covenant dating back to 1874. It dictated, amongst other things, that only one house could be built on their land. They applied to the Upper Tribunal (UT) to modify or discharge the covenant so that they could proceed with their project. The application was, however, resisted by the couple whose garden adjoined the proposed development site.

The neighbours said that the house had been designed by an architect to meet the needs of one of them who was in poor health. Built into a slope with a low-pitched roof, it would have a minimal visual impact on the existing neighbourhood. They pointed out that construction of modern homes in more traditional areas was becoming more prevalent.

The couple, however, said that it would overlook their garden, making it feel more enclosed, and impinge on their panoramic countryside views. Their peace would be considerably disturbed by the building works and by increased traffic movements thereafter. Having bought their home only recently, they had been reassured by the protection afforded by the covenant.

Dismissing the neighbours’ application, the UT rejected arguments that the covenant was obsolete. Despite its antiquity, the thrust of the restrictions it imposed were still very much alive in the 21st century. It continued to secure practical benefits that were of substantial value to the couple. The ruling meant that the neighbours’ building plans could not proceed.

Many rural homes obtain their supplies of fresh water from sources which lie beyond their boundaries and such arrangements can sadly prove fertile ground for dispute. A case in which a farmer and his niece were at odds over water rights showed the wisdom of seeking early legal advice so that such disagreements can be nipped in the bud.

The niece lived with her partner and young son in a converted agricultural building which had been bequeathed to her by her grandfather in his will. The property was served by a water pipe connected to a borehole on neighbouring land which was owned by her uncle.

A dispute developed after a tap was turned off, disconnecting the property from its water supply. The pipe was subsequently severed by the uncle’s workmen and not repaired. The niece and her family were as a result dependent on tanked and bottled water for about a year.

After the niece took action against her uncle, a judge found that the property was already connected to the borehole when it was conveyed into her grandfather’s sole name. He and any future owner of the property therefore had a right – or easement – to continue to draw water from the borehole. Turning off the tap and refusing to reconnect the water supply amounted both to a substantial interference with that right and a nuisance.

Given that probate in respect of her grandfather’s estate had yet to be granted, the niece did not own the property and her occupation of it was tenuous. The judge, however, noted that she had a reasonable expectation that she would become its legal owner in due course. Her occupation, which had been tacitly accepted by the executor of her grandfather’s will, was in any event sufficient to found her nuisance claim.

The judge made a formal declaration that the property is entitled to a water supply from the borehole and granted the niece an injunction to ensure that supply. Her uncle was also ordered to pay her £5,500 in damages to reflect the inconvenience she suffered whilst the property was deprived of piped water.

Home is where the heart is and the question of whether a property is your principal private residence for Capital Gains Tax (CGT) purposes depends, at least in part, on your intentions. An instructive case on point concerned a couple who made a house their home for only a few weeks before moving out again.

For a year after buying the house, the couple lived in rented accommodation whilst substantial renovation works were carried out. Whilst working in the property’s front garden, the man was approached by a stranger who offered to buy it. The couple turned him down more than once but, after he increased his offer, they eventually agreed to sell him the house at a handsome profit. The couple and their children lived in the property for only six to eight weeks.

The couple did not declare the gain generated by the sale on their tax returns. HM Revenue and Customs took the view that CGT was payable and raised demands against the couple totalling almost £24,000. They were also issued with penalties of more than £4,000 on the basis that the omission of the gain from their tax returns was carelessly inaccurate.

In upholding the couple’s appeal against those bills, the First-tier Tribunal found that that they were entitled to 100 per cent relief from CGT on the basis that the house was, albeit briefly, their principal private residence. They had intended that the property would be their family home, where they would live indefinitely, and they had only accepted the purchaser’s offer after moving in. The CGT assessments were reduced to nil and the penalties were cancelled.