ASSIGNMENT POLICY AND PROCEDURE

Transcription

1 ASSIGNMENT POLICY AND PROCEDURE Responsible Officer Director of Customer Services Aim of policy and procedure The purpose of this procedure is to ensure that Phoenix Community Housing (PCH) fulfils its statutory and contractual obligations for assignment. What is an assignment? An assignment is a transfer of the tenancy (usually by deed) during the life of the tenant. Succession is a different process, whereby the tenancy is transferred upon the death of the tenant. (See Succession Policy and Procedure). Under an assignment the person who transfers the tenancy (i.e. person A) is called the assignor and the person to whom the tenancy is transferred (i.e. person B) is called the assignee. What is the legal basis for assignment? Statute Section 15 of the Housing Act 1988, prohibits assignment for assured (non Shorthold) tenancies unless there is an express contractual agreement by the landlord to allow assignment. Where there is an agreement by a landlord that the tenant can assign with permission, then permission should not be unreasonably withheld. If there is no agreement and the consent to assign is refused, there is no need for a reason to be given by the landlord. S of the Localism Act outlines the rights of Assured Shorthold tenancies on fixed terms of more than 2 years- PCH does not grant these tenancies. Contractual At PCH there is a limited agreement to assign included in the tenancy agreement (Section B) It states: You are not allowed to assign or pass on the tenancy except in the following circumstances: a) by way of mutual exchange with a tenant of another Local Authority or Housing Association; or b) if ordered to do so by the court in matrimonial proceedings or in accordance with Schedule 1 of the Children s Act 1989; or c) to a person who would be qualified to succeed to the tenancy (such qualification being determined by the provisions of Section C of this Tenancy Agreement below) in the event of your dying. CS Assignment Policy and Procedure V2 Final March 2014 Page 1 of 5

2 In the situation (a), you must obtain our previous written consent to the assignment; this consent will not be unreasonably refused. In situation (b) and (c) we must be notified of the change and the details of the new tenant. This means PCH must consider assignments by: Mutual exchange (see Policy and procedure on Mutual Exchange). Assignment to an eligible successor (see Policy and Procedure on Succession). Assignment by Court order e.g. Property Adjustment Order-(see Policy and Procedure on relationship breakdown). Other assignments requested such as: Assignment by joint tenants. Assignment by a sole tenant or request for a joint tenancy. can be refused by PCH. Can there be an assignment? The right to assign, or mutually exchange, a tenancy, as detailed above, only applies to assured tenants. Tenants on temp stay tenancies (including those housed under Part 7 Housing Act 1996 (as amended) duties e.g. homelessness of the Local Housing authority), probationary tenants and tenants under notice to quit have no right to assign. A tenancy can only be assigned to a person eligible to succeed the tenancy once, so once it has been assigned, it cannot be assigned again, nor can there be a later succession. However this does not limit assignment by mutual exchange, or court order. Joint tenancies One joint tenant cannot unilaterally assign their share of the joint tenancy to the other joint tenant, but both joint tenants can together agree to assign the whole of the tenancy to one of them. Because they are acting in agreement the joint tenants do not need to serve Notice To Quit, they simply both sign the relevant assignment forms and deeds. Sole tenants A sole tenant could request to assign their tenancy to someone who would have the right to succeed to their tenancy on the event of their death. The reasons for requesting this assignment should be explored. Grounds for Refusing an Assignment There are - no statutory grounds for refusal. However, our Regulatory Framework requires us to make best use of our housing stock to meet local needs therefore the following matters should be considered as grounds for refusal. Furthermore if the proposed assignee qualifies for succession, they will become the tenant at a later stage CS Assignment Policy and Procedure V2 Final March 2014 Page 2 of 5

3 and so PCH would need to be satisfied that there is a need for the tenancy to be assigned now. The following are grounds where an assignment can be refused; Where the tenant is a probationary tenant or a licence. Where there is a possession order in force against the tenancy. Where there is a valid NOSP served for any breach of tenancy conditions. Where there are rent arrears above any discretionary limit which may be set from time to time by the PCH Board. Where the person being assigned the tenancy is evidenced to have committed harassment or domestic abuse against the tenant. Where the tenant sublets part of their home or takes in a lodger; without our previous written consent. Where the assignment will result in under occupation. Where the property is a specialised/adapted unit and the proposed assignee does not meet the criteria for this particular type of property. In such circumstances the officer will need to arrange for an assessment of the Assignor s needs to be carried out Occupants with a Greater Claim to the Tenancy There may be other people in occupation that would have greater claims to the tenancy if the tenant were to die. They must also sign the form to agree that the proposed assignee obtains the tenancy. For example an elderly tenant may wish to assign to her son even if her spouse were in residence, or lived elsewhere, the spouse should, if practicable, sign to agree to the tenancy being assigned to the son. Assignment & Mutual Exchanges- (see mutual exchange policy and procedure) A mutual exchange is an assignment where the two parties swap tenancies. A deed of assignment is signed and the incoming tenant has a new file set up which will include the previous tenant s tenancy agreement. Assignments following relationship breakdown- (see relationship break down policy and procedure) Tenants should be encouraged to seek a Property Adjustment Order as part of a divorce settlement or an order through the Children s Act The order must be appended to the original tenancy agreement and changes made to the computer system. A deed of assignment does not need to be signed. Process and Procedure The applicant tenant must be advised whether their request has been approved or refused within 20 working days. Once a request for an assignment is received an Application Form should be sent to the tenant wishing to assign. Upon receipt of the completed Form the GLA must send out Letter 1 immediately, inviting the tenant to be interviewed within 10 working days from the date of the application to ensure they understand the consequences of assigning their tenancy. This interview should be CS Assignment Policy and Procedure V2 Final March 2014 Page 3 of 5

4 conducted without the proposed assignee being present to ensure that no pressure has been placed on the tenant to assign their tenancy. During the interview the GLA must confirm the following; that the form has been fully completed and signed by all relevant parties that the necessary documentation has been provided what the tenant needs to do (if anything) to meet the criteria for approval of the assignment i.e. clear rent arrears It should be possible for the GLA to assess during the interview whether or not the assignment can be approved. If there are no grounds for the assignment to be approved the GLA must advise the applicants and explain why but tell them the application will still be passed to the GLM for a final decision. The GLA must refer the relevant documentation and tenancy file to the GLM within one working day from the interview taking place. The GLM must approve/refuse the assignment and return it to the GLA within 5 working days. If approved the GLA then must send out Letter 2 within 5 working days inviting both the assignor and assignee into the area office for an appointment to sign the deed of assignment. This interview must be carried out within a further 10 working days. If the assignment has been refused then the GLA must send Letter 3 within 5 working days of the decision Once the deed of assignment is signed the GLA must then make all relevant changes on the computer system and ensure all notes are up to date within 5 working days of the interview, once this is completed Letter 4 can be sent advising the new tenant of their status and reminding them of their obligations as a tenant. The Assignee does not sign a new tenancy agreement Performance Indicators and monitoring Number of Assignments requested. Number of Assignments granted. Number of Assignments refused. Applications (split into successions, mutual exchanges and other) Implementation Guidelines This procedure will be implemented by: Seeking agreement at the Customer Services Management Group and Customer Services Director. Training with all key staff. Integrating into relevant staff supervision and monitoring session. Updating the Phoenix Website. Inclusion in the Tenants Handbook. CS Assignment Policy and Procedure V2 Final March 2014 Page 4 of 5

5 Reference to other documents and associated policies and procedures Including: PCH Tenancy agreement. Letters/forms in the procedure. Mutual Exchange procedure. PCH Standards. Succession Policy and Procedure. Relationship Breakdown Procedure. Support Directory Definitions Term/acronym PCH Sole Tenant GLA GLM Description Phoenix Community Housing Tenant who holds the tenancy on their own Gateway Local Advisor Gateway Local Manager Document Type: Procedure Title: Assignment Author Gateway Local Manager Department Owned By Customer Services Equalities Impact Assessment: No Approval Date: Approved By: Board Implementation Date : Ongoing (as refresh) Status: Final Version No: V2 Last updated: March 2014 Issue Date: April 2014 File Path: S:\Policies and Procedures Manual\Department- Customer Services\Assignment of tenancies\policy CS Assignment Policy and Procedure V2 Final March 2014 Page 5 of 5