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Painsmith Solicitors Limited trading as Painsmith Solicitors, Director: Marveen Smith. Registered No. 07617210.
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Emma qualified as a solicitor in 2010 after completing her academic training at Bournemouth University and the University of Law, Guildford.
After undertaking her training contract at a large firm on the south coast she began her career with the same firm before accepting a position with PainSmith Solicitors in November 2012.
Emma specialises in all aspects of property litigation and can assist in resolving most disputes, regularly acting for landlords and land owners in connection with dilapidations disputes, forfeiture and possession claims, land registration disputes, building and boundary disputes, and recovery of arrears and other debts.
Emma is also able to draft up to date tenancy documentation, being fully conversant with all relevant requirements and guidance that applies to this heavily regulated and changing area. She has been praised for her ability to quickly understand her clients’ objectives and for offering commercial, pragmatic advice in a straightforward manner.
David Whitney is a solicitor and mediator. Prior to joining PainSmith five years ago he was a Partner in a West London practice. He has practised in the field of landlord and tenant law for about 20 years and has over the last 15 years developed a specialism in long residential leasehold work. His work encompasses dealing with all aspects of landlord and tenant including dilapidations claims, repossessions, enfranchisement, lease extensions, RTM applications and service charge disputes to name a few. In the past 12 months alone David has assisted over 200 hundred flat owners to either purchase their freehold or extend their lease. David understands the, often, competing interests of differing parties and prides himself on giving clients pragmatic and commercial advice. David also sits as a fee-paid Judge of the First Tier Tribunal (Property Chamber) on the Southern Region and as a member of its mediation panel.
Laura graduated from the University of Portsmouth in 2013 with a degree in Law with Business. This year, Laura also completed the Legal Practice Course.
Prior to joining PainSmith Solicitors, Laura worked for a local council. She has the experience and knowledge to confidently handle her own caseload across a range of property matters and uses her understanding of business to ensure that she produces practical commercial solutions to client’s problems.
Richard came to PainSmith in August 2011 as a Paralegal after graduating with a degree in law from the University of Sheffield. Whilst working for PainSmith he completed the Legal Practice Course at weekends completed a training contract at the firm and has been taken on by the firm as a fully qualified Solicitor. After receiving considerable training provided by PainSmith, Richard joined the legal helpline and has been one of the advisers on the helpline for over four years.
He has over five years of experience in Landlord and Tenant law and his normal work load ranges from case handling of possession matters, deposit disputes, drafting of tenancy agreements, advising on HMO properties and debt and disrepair claims. He is experienced in lengthy and complex litigation and settlement negotiations.
David Whitney is a solicitor and mediator. Prior to joining PainSmith five years ago he was a Partner in a West London practice. He has practised in the field of landlord and tenant law for about 20 years and has over the last 15 years developed a specialism in long residential leasehold work. His work encompasses dealing with all aspects of landlord and tenant including dilapidations claims, repossessions, enfranchisement, lease extensions, RTM applications and service charge disputes to name a few. In the past 12 months alone David has assisted over 200 hundred flat owners to either purchase their freehold or extend their lease. David understands the, often, competing interests of differing parties and prides himself on giving clients pragmatic and commercial advice. David also sits as a fee-paid Judge of the First Tier Tribunal (Property Chamber) on the Southern Region and as a member of its mediation panel.
Marveen Smith was one of the founders of PainSmith Solicitors in 2001 and has been the only Principal of PainSmith Solicitors a niche firm who are specialists in property law since 2006. Marveen has a background in accountancy and tax; forging a second career in law by qualifying as a Solicitor before starting her own practice. As well as working in her legal practice daily Marveen is one of the trainers for ARLA and other organisations presenting legal courses throughout the country; giving presentations at regional meetings for ARLA; and at seminars for landlords. Marveen has made regular appearances on Money Box for Radio 4 and Watchdog where she endeavoured to balance the one sided view of letting agents that can be presented by the media, as well as disseminating information to enable landlords to act in a more professional capacity. Marveen was the first person to establish a legal helpline for landlords and agents; and to offer both standard and bespoke documents designed specifically for the lettings industry. Today PainSmith offers a wide choice of legal documents to satisfy the requirements of both relocation companies, letting agents and landlords.
Section 8: Back to Basics
From time to time it is important to go over old ground. It can be easy to lose track or just need a quick reminder of the basics of possession cases.
Section 8 notices, as I’m sure you are all aware, can be used as a vehicle to gain possession of the property whilst at the same time obtaining the rent arrears that may have developed. There are a number of different situations that can trigger the requirement of a Section 8 notice which could be scrutinised in an incredible amount of detail. With regards to this blog entry, I am going to focus more specifically on the mandatory and discretionary grounds and how they differ in the courts eyes in particular with relation to the more common grounds for possession i.e. grounds 8,10 and 11.
The Housing Act 1988 s.7(3) stipulates that when the court feels that any of the grounds listed in Pt 1 of Sch.2 of the 1998 Act are satisfied then possession must be granted for that property. If this is compared to Pt 2 which substitutes the phrase ‘must be’ with the far less convincing ‘may be’ then it starts to become clear why having mandatory grounds is infinitely more desirable that simply pinning hopes on discretionary grounds. As a general rule we as a firm only advise issuing proceedings on mandatory grounds unless the evidence is particularly strong on discretionary, as we have found that judges tend not to be too receptive to the idea of handing over possession of the property to the landlord and making the tenant potentially homeless, unless there is overwhelming evidence against them or the mandatory grounds have been met.
The most commonly used of the grounds for possession are 8, 10 and 11. Ground 8 is mandatory whereas 10 and 11 are discretionary. If for example the tenant at this point pays some of the rent arrears to the landlord, enough to just about drop below the 2 month minimum requirement (if it was a monthly rental period) to claim ground 8, it would mean the claim would be resting on discretionary grounds which, as explained earlier, are far from reliable, particularly in matters involving rent arrears. The discretionary grounds in cases such as this service the role of supporting the mandatory ground and are normally too weak by themselves to satisfy possession criteria. As soon as the mandatory ground is lost the case for the landlord is generally lost along with it.
This is not always the case. However, if a mandatory ground can be relied upon it is preferable to do so rather than assuming possession will be granted on discretionary.
With discretionary grounds, on the making of an order for possession, the court can postpone the order for as long as the court sees fit. In this period the court will normally issue certain conditions with regards to the payment of the rent arrears as well as any other conditions that the court deems applicable. If these conditions are followed, the court can discharge or rescind the possession order if it sees fit. Can you see the pattern here? The level of discretion available to the court is illustrated by the repeated use of the term ‘if the court sees fit’. The only discretion available to the courts when it comes to mandatory grounds is a delay from the usual 14 days to a maximum of 6 weeks in cases of exceptional hardship, but this in itself has a high threshold in which to satisfy.
In light of the above costs need to be considered and proceedings against a tenant to gain possession is not an insignificant sum. To risk this sum on the courts discretion, particularly when the order for possession would result in the tenant being made homeless, may not be the best course of action.
This blog has been drafted in response to a comment. Thank you for your continued support Valerie.