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Appendix 2: A brief introduction to law

To understand landlord and tenant law properly you need to have a basic understanding of how the legal system works in England and Wales (there are different systems in Scotland and Northern Ireland). This is a very brief overview. 

Criminal law and civil law - these are two separate systems.

>> Criminal law

Criminal law is where the state is punishing someone for some sort of wrong doing. Most criminal cases (such as burglary or assault) are brought by the Crown Prosecution Service on behalf of the police, but other organisations can also bring prosecutions. For example many shops will bring private prosecutions against shoplifters.  Most housing related prosecutions are brought by local authorities (for example for harassment or breaches of the licensing regulations) but not always. For example breaches of the gas regulations will be prosecuted by the Health and Safety Executive, and the product safety regulations by Trading Standards Offices. In criminal cases actions are brought by the prosecution (generally on behalf of the Queen, hence the legal title of the cases will give the Latin Regina generally shorted to r.) against a defendant. The normal courts used are the Magistrates Court or, for the more serious cases, the Crown Court.

>> Civil law

Civil law on the other hand is about the resolution of disputes between individuals. For example a landlord trying to evict a tenant for non payment of rent, or a tenant bringing a claim for recovery of his damage deposit. In civil law a claim is brought by a claimant against a defendant. Claims are normally made in the County Court, save for high value or complex cases, which can be brought in the High Court. The ‘Small Claims Court’ is the name for a special procedure which is used for claims with a value of under £5,000.

There are various types of civil law. Two areas relevant to landlord and tenant are contract and tort.

>> Contract law

Contract law is where two parties reach an agreement where both sides exchange something of value (for example £1 for a bar of chocolate). Contracts are subject to terms and conditions, which will be either specifically agreed by the parties or will be implied into the contract, generally by statute.  For example, a tenancy is a type of contract where the landlord agrees to provide the property in exchange for rent.  The terms are generally set out in the tenancy agreement, but the tenancy will also include terms implied by statute, for example regarding the landlords repairing obligations, whether these are written into the tenancy agreement or not.  Generally only the parties to a contract can sue on it, i.e. the landlord and the tenant. 

>> Tort law

Tort law is where someone commits a civil wrong. There are several types of tort. Perhaps the best known is the tort of negligence. Here in certain circumstances people or companies (such as manufacturers) are held to have a duty of care towards various classes of people.

For example in the case of a manufacturer it will be the ultimate user of the goods they have manufactured. So someone who is harmed by manufactured goods can sue the manufacturer direct even though he may have actually bought the item from a shop and therefore have no direct contractual relationship with the manufacturer.  So far as housing law is concerned, traditionally landlords do not owe a duty of care towards their tenants, and tenants need to sue on the contract.  However there will be situations where a duty of care arises, for example under some statutes. In these cases the tenants family and visitors will normally be able to sue as well as the tenant. Other torts include public and private nuisance, trespass and defamation. 

>> Common law

Common law is the name for law which does not come from an act of Parliament. Instead the law stems from decisions in cases made by judges over hundreds of years, which originally developed from the custom and practice of the people. Some areas of law consist almost entirely of case law, for example the law of negligence. 

When deciding a case, if there is no statute, a judge will look to see what other decisions have been made on the same legal point. Generally decisions made will bind all future judges in an equal or lower court, save for the House of Lords which is allowed, in exceptional circumstances, to overrule its own past decisions. The part of the case which will bind the judge is what is called the ‘ratio decidendi’ or the (legal) reason for the decision. So cases with similar facts may actually be decided on different legal points.

>> Statute law

Although common law is very important, much of our law is now found in statutes or Acts of Parliament. This is particularly important in housing law, much of which is contained in statutes such as the Housing Acts 1988, 1996 and 2004, The Protection from Eviction Act, and the Landlord and Tenant Act 1985, to name but a few. Frequently nowadays statutes tend to only operate as a statement of intent, and do not come into force until after government has carried out consultation on their implementation, and issued statutory instruments setting out the detailed regulations for the law in question.

For example although the Housing Act 2004 was passed in November of that year, the licensing and health and safety rating systems included in that act did not come into force until April 2006.  Frequently statutes will commence at different times in England and in Wales as in Wales it is the National Assembly for Wales which will deal with the regulations/statutory instruments under its delegated powers, rather than Parliament. 

Case law is still very important even where there is an Act of Parliament, as acts are sometimes difficult to interpret. If parties cannot agree how an act is to apply they will have to litigate and allow a Judge to decide. These cases are then used in future to help us interpret the act.  

>> Conclusion

As mentioned at the start, this is only a very brief overview. The topics outlined here will generally involve a couple of years study by law students at University so this should only be taken as a rough guide. If you are interested and would like some further information on the English legal system, you will find general information books in the Law section of most good bookshops.

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