Liens, forfeiture and why ‘one word’ answers are impossible in legal advice

“I don’t want a lot discussion about background information” he told us, warningly “I just want a yes / no answer to my question. That’s all.”

Yes No Advice
This article was first published on the Landlord Law Blog in April 2016.  

We had an application a while back for legal advice in respect of a commercial property from a landlord. Let’s call him Mr X.

“I don’t want a lot discussion about background information” he told us, warningly “I just want a yes / no answer to my question. That’s all.”

The question was – were there any circumstances where he could hang onto the tenant’s possessions in his commercial let under a landlord’s lien?

Now that’s not an easy question to answer and there are a lot of variables. And I don’t do commercial property.

So I went back to him and said something along the lines of

“I don’t do commercial property so I will have to refer this on, but did you actually mean forfeiture, because I understand that this may still be possible in commercial lets”.

“No,” he said, “I’ve spoken to solicitors about forfeiture, I know all about that. I just want a one-word answer on the lien question. I do not want to discuss anything else”.

Well, he may want a ‘one word’ answer but you can’t always get what you want.  There is a limit to how far you can simplify something which is essentially complex.

Let’s take a look at Mr X’s question.

Answering Mr X

The obvious answer is ‘no’. So far as I am aware there is no general landlord’s lien.

However, there are lots of different types of lien. For example, hotels have a lien over guests possessions if they don’t pay their hotel bill, and agents have a lien if their agency commission is unpaid.

If we are not allowed to discuss and consider the background information – how are we to know whether or not one of these other liens apply?

If we said “no” as our answer to Mr X and he acted on this – he would be pretty upset if he then discovered that there WAS a lien which would have applied to his situation and which he could have used.

There is also the point that he has decided in advance what the legal issue is.

But there may be other issues relevant to his situation which would provide an equally useful answer. An answer to his real problem which is that he has not received payment for his rent.

For example, if he was able to forfeit the lease by using certificated bailiffs, he would have actual possession of the items in the property.

He does not have the legal right to hang on to them or to sell them. However if he does not know the whereabouts of the tenants, and was not able to find out upon making ‘reasonable enquiry’ (instructing tracing agents on a no find no fee basis would suffice) then he is entitled to sell the goods under the provisions of the Torts (Interference with Goods) Act 1977 (see our FAQ here on this).

The proceeds of sale would ‘belong’ to the tenant, but if the tenant made a claim for it, the landlord would be able to offset his outstanding rent. So he would be reasonably safe in keeping it.

So that is another possible solution to the problem which is not covered by a ‘yes / no’ answer to the client’s question. Because he was not asking that question.

Considering the law

What we did about Mr X and why

What actually happened about Mr X’s instructions is that we refused to act and refunded his money.

When solicitors advise they are expected to advise fully. If it later turns out that there was an important piece of advice which was not given to the client, the solicitor can be sued and may be liable for compensation. The fact that the client was stupid in the way that they asked their question may not be a sufficient defence.

For example,  Mr X told us that he ‘knew all about forfeiture’ as he had already received advice on that. But how were we to know that the advice he had been given was correct? Or he may have misunderstood what his former solicitors had told him.

Just giving a one-word answer would not have been providing a proper service.   And it would have been asking for trouble.

What Mr X was trying to do was resolve in advance the problem of getting too much information about what he considered was a simple issue.

The problem about yes / no answers

What Mr X was trying to do was resolve in advance the problem of getting too much information about what he considered was a simple issue.

The trouble is, if you are not a lawyer you are not always in a position to know in advance what sort of answer you should get, or indeed what the problem is. Self-diagnosis (as we know from the field of medicine) can be dangerous.

All lawyers know that one of the most important things you need to do when first receiving instructions from a client is to find out ALL the surrounding circumstances so you can see what the problem really is. All too often there is some issue which the client thinks is unimportant but upon which actually his entire case hinges.

For example the classic case of a landlord ‘just’ wanting to know whether the dates on his section 21 notice are correct but who completely fails to realise that his notice will be invalid anyway if he has not protected the tenant’s deposit.

If a solicitor said ‘yes, your notice is correct’ without enquiring about the deposit situation, that would be bad advice.  And he could potentially be sued on it.

How to deal with confusing legal advice

All too often you DO get confusing advice from solicitors which you cannot understand. This is not deliberate. It means that your solicitors are so steeped in the law that its concepts and terminology are second nature, and they do not realise that their advice is incomprehensible to a non-lawyer.

The thing to do is to go back to them and ask them what they mean.

If you are paying for advice, by implication this should be advice that is comprehensible. If you tell them you do not understand what a legal word means, they should explain it to you. Don’t give up until you are sure you understand exactly what their advice means.

If they don’t help, or if they try to charge you a lot of money for additional explanations of things they should have already told you – put in a complaint and refuse to pay.

But don’t pre-judge what the problem is and demand a one word answer. Because this may not be something they are able or willing to give.

Whats your opinion? Got any questions?
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