Absent tenants and abandonment Policy

Transcription

1 Absent tenants and abandonment Policy Summary: This policy sets out Genesis Housing Association s approach to managing the temporary absence of tenants and dealing with abandoned properties across our portfolio. It does not include customer absence due to decant. The policy applies to all tenancy and licence agreements used in the business. The policy does not apply to leaseholders or shared owners, who are governed by the terms and conditions of their lease in regards to absence from the property. Version: 1.4 Effective from: 10 December 2015 Planned review date: 10 December 2018 Who to contact: Neighbourhood Manager Neighbourhood Assistant Services Manager (Care and Support) Contents 1. Purpose Definitions Customer responsibilities Where notice of absence is given House sitters Abandoned properties Diversity and inclusion Related internal documents Legislation, regulation and guidance... 6 Page 1 of 16

2 1. Purpose The purpose of this policy is to ensure we are making the best possible use of our housing stock by managing long term absence as well as ensuring we act swiftly to repossess properties that have been abandoned. Abandoned properties have financial costs (due to loss of income) and social costs (ensuring accommodation is available for households in housing need). The policy also outlines our approach to managing circumstances where a customer has to spend a period of time away from their property which is beyond the period specified in their occupancy agreement. This policy applies to the absence of tenants and licensees. Leaseholders, including shared owners, may wish to spend substantial periods of time away from their property and they should inform us if this is the case in line with the terms of their lease. We aim to: ensure our stock is used efficiently and is available for those in housing need minimise the time taken to investigate reports of abandonment minimise the chances of unauthorised occupation by repossessing abandoned properties as quickly as possible ensure all enquiries and requests regarding long term absence are dealt with consistently ensure our tenants and licensees remain responsible for all obligations under their occupancy agreement prevent the creation of unintended tenancies and rights of occupation by managing house sitters effectively. 2. Definitions Property For the purposes of this policy, property is used to describe a house, flat, room or hostel place as described in the customer s individual occupancy agreement 3. Customer responsibilities It is a key principle when holding a tenancy or licence that the property is the customer s only or principal home. Failure to do so can result in them losing their security of tenure and the ensuing occupancy agreement is liable to be ended by serving notice in line with the notice period. Customers must inform us, in advance, if they intend to be absent from the property for longer than the prescribed period of time as specified in their individual occupancy agreement. Customers must also advise us of a planned return date. 4. Where notice of absence is given Where notice of absence is given in line with the occupancy agreement, we will ask for details of the circumstances from the customer. This could include the reasons for the absence, duration, certainty of return and date, forwarding address and contact number and arrangements for paying rent as applicable. We advise the customer that any absence longer than the agreed time may lead to us taking action to repossess the property. Page 2

3 4.1 Tenants Tenants are entitled to be absent from their properties for a substantial period of time, as long as the property remains their only and principal home. The following are generally accepted as valid reasons for temporary absence: Having a short prison sentence Staying in hospital Living in student accommodation in term time Living in alternative accommodation as a result of domestic abuse Staying with relatives to receive or provide support and care Having fixed term employment elsewhere Going on an extended holiday. We are sympathetic to individual circumstances of customers who may be in hospital or may have received a prison sentence. Where absence is due to a prison sentence we consider the following before making a decision on how to proceed; the nature of the crime expected duration of absence ability to pay the rent for the duration Any serious offence committed, as listed in the Anti-social Behaviour, Crime and Policing Act, schedule 2a, will be deemed a serious breach of the tenancy and we will seek a court order for possession if the customer does not first terminate their tenancy. We will advise customers to seek independent legal advice. 4.2 Licensees Licensees are not permitted to be absent from their properties for a substantial period of time, the period of which will be stipulated in the licence agreement, however temporary absence may be accepted in certain circumstances. The following can be accepted as valid reasons for temporary absence: Having a short prison sentence Staying in hospital Staying with relatives to receive or provide support and care. In all cases a management decision will be made considering the best possible use of the accommodation. 4.3 Exceptions If the length of absence means that arrangements for paying the rent and other charges cannot be made, the customer will be encouraged to end the tenancy. This may involve liaising, as appropriate, with the customer s probation officer, social worker or health worker. If they refuse to give up their property and arrears accrue, possession action will be taken in line with our income collection policy. Page 3

4 Where there are no rent arrears, however, it may be difficult to regain possession of the property through the courts. In these cases, we encourage the customer to give up their tenancy and where they refuse we consider taking possession action If the customer asks for an extension of the agreed period, we will review the request and may agree this in writing. If the extra time requested is excessive or we have sufficient reason to believe they have no intention of returning, we may decline the request and advise the customer to give up their tenancy. 5. House sitters Customers may wish to take in a house sitter during their absence to look after their property; all requests must be made in writing to us Permitting a house sitter may not be appropriate in all cases and is dependent on the type of occupancy agreement held by the customer or the qualifying conditions of the estate or scheme. Where we are satisfied with the reason for absence, arrangements for paying the rent and the duration for absence, we will give permission for a house-sitter. We will request their name, age and gender to enable our staff to identify them during visits to the property. 5.1 Assured short hold tenancies Customers with assured short hold tenancies may not be permitted to take in a house-sitter as a condition of their tenancy. 5.2 Licences Licensees are not permitted to take in a house-sitter. 5.3 Prevention against sub-letting We do not permit tenants to sub-let the whole of their property and will take action to avoid the house-sitter claiming a new tenancy has been created. Prior to agreeing to a house sitter we will; inform the customer that it is their responsibility to ensure rent is paid and all tenancy conditions are complied with; ensure that all parties fully understand any rent accepted is for and on behalf of the customer and not from the house-sitter; and inform the customer that we will take action to end the tenancy if conditions are breached. If someone other than the customer or approved house sitter is found to be living in the property we will investigate further in line with our unauthorised occupants policy. 6. Abandoned properties We monitor our estates, schemes and properties to minimise occurrences of abandonment and act swiftly to repossess the property where we find a customer has abandoned. Page 4

5 If we suspect that a customer has abandoned their property, we carry out investigations to determine whether this is the case. We consider a property to be abandoned if the conclusion can be made that the tenant has no intention to return. An abandoned property will normally meet most or all of the following criteria: The rent is not being paid Housing benefit or Universal Credit housing element has stopped The customer appears to have removed all or most of their personal belongings from the property A large amount of post has accumulated The property is insecure but this has not been reported by the customer The customer is no longer registered for council tax, has requested to be removed from the electoral role or has informed utility companies that they are no longer responsible for utilities The gas, electric or water supply has been disconnected due to non-payment The gas, electric or water consumption has ceased We make every effort to contact the absent customer to see if they have any intention of returning and warn them that their home is at risk. When attempting to establish whether a property has been abandoned we will have regard to the customer s welfare, safety and legal rights. If they are known to be vulnerable, we will contact all relevant support agencies and next of kin as appropriate. Where we have reason to believe, following investigation, that the welfare of a customer is at risk, we will follow our no access policy and procedures. If we can establish beyond reasonable doubt that the property is no longer the only and principal home of the legal occupier, we take steps to repossess the property. The steps we take will be dependent on the type of occupancy agreement held as below. 6.1 Assured shorthold (fixed term) tenancies In the case of an assured shorthold (fixed term) tenancy we will serve a Notice of Seeking Possession and a notice under s.146 of the Law of Property Act 1925 (provided the tenancy is less than 21 years, it is not necessary to go to court before issuing the s.146 Notice). 6.2 Secure tenancies and periodic assured tenancies In the case of secure tenancies and periodic assured (and assured shorthold) tenancies we will serve a Notice to Quit. Where the account is in arrears we will issue a Notice of Seeking Possession in line with our income collection policies. We will give the tenant a period of time to remedy the breach and to advise us of their intentions. If the tenant has failed to remedy the breach and we are entirely satisfied the property is unoccupied we will take possession by physically re-entering the property (Forfeiture). If there is any uncertainty as to whether the tenant has abandoned the property or not we will apply for possession through the courts. Page 5

6 6.3 Licences In the case of licences we will end the agreement in the normal way, giving the notice period stated in the agreement. We will give the licensee a period of time to advise us of their intentions within the notice period. If the licences has failed to remedy the breach and we are entirely satisfied the property is unoccupied we will take possession by physically re-entering the property (Forfeiture). 7. Diversity and inclusion A Diversity and Inclusion Assessment has been completed as part of this policy review and a copy is available on request. To request a copy please contact us at policy@genesisha.org.uk or for further information on our commitment to equality and diversity at Genesis please visit our website. 8. Related internal documents Unauthorised occupants policy Lodgers and subtenants policy Antisocial behaviour policy Income Collection: Rent policy Lettings and allocations policy No access policy Safeguarding adults policy 9. Legislation, regulation and guidance Housing Act 1985 Protection from Eviction Act 1977 Anti-social Behaviour, Crime and Policing Act 2014 Author: Ryan Ward Approval date: 10 December 2015 Approved by: Policy owner: Accountable Director: Policy Review Group Director of Neighbourhoods Director of Neighbourhoods Page 6

7 Unauthorised Occupants and Squatters Policy Summary: This policy sets out our approach to unauthorised occupation and squatting within our residential properties. It should be read in conjunction with our Lodgers and sub-tenants policy. Version: 1.4 Effective from: 03 March 2015 Planned review date: 03 March 2018 Who to contact: Tenancy Fraud Officer; Genesis Connect Leasehold Management Team Contents 1. Purpose Definitions Permissions to sublet Preventing unauthorised occupation and squatting Unauthorised occupants Squatters Rights of unauthorised occupants and squatters Diversity and inclusion Related internal documents Legislation, regulation and guidance Page 7 of 16

8 1. Purpose Unauthorised occupation and squatting reduces the amount of accommodation available for households in housing need. It can have an impact on our rental income and cause us to incur extra staffing costs and legal costs. Unauthorised occupants and squatters may cause nuisance to neighbours, undermine the development of sustainable communities as well as leading to the deterioration in condition of the property. The aims of this policy are; to prevent unauthorised occupation to discover unauthorised occupation as soon as possible to regain possession of our properties where there are unauthorised occupants or squatters 2. Definitions Squatting: Squatting is not a legal term but is commonly used to describe a trespasser who enters and lives in a property or on land without the permission of the owner or the person legally entitled to occupy it (for example, a tenant). Unauthorised occupant: Someone who has no contractual right or permission to occupy our property or whose continued occupation is unlawful because it is a breach of the express terms of the tenancy or lease. An unauthorised occupant can be: a lodger, partner or family member who has remained in occupation after the tenant has vacated or died; someone who has sub-let the whole of the property from a secure or assured tenant; someone who has sub-let any part of the property from an assured short hold tenant; or someone who has sub-let the whole of the property from the leaseholder without the leaseholder informing us and/or obtaining written permission, as specified by the terms of the lease. 3. Permissions to sublet Tenants are not permitted to sub-let, or give up possession of, the whole of their property unless otherwise specified in the tenancy agreement. Tenants have the right to seek permission from us to sublet part of their property. Decisions are made in line with the tenancy agreement and the Subletting and lodgers policy. Shared owner leaseholders are not permitted to sublet the whole or part of their home in line with the terms of the lease. In some circumstances we may give permission for a shared owner to sub-let their property. Applications are assessed on a case by case basis following our internal procedures which are in line with HCA guidelines. Leaseholders owning 100% of the equity in the property are permitted to sublet their home unless otherwise stated in the lease. Individual leases may contain clauses which prohibit subletting, or they may permit sub-letting with or without the consent of the landlord. Where permission is not granted to sublet, we consider any subtenant or lodger to be an unauthorised occupant. Unauthorised Occupants and Squatters policy v1.4 March 2015 Page 8

9 4. Preventing unauthorised occupation and squatting We maintain comprehensive and accurate resident information; we encourage customers to inform us of any change in their circumstances and to inform us if they are going away from the property for any significant period of time; usually this is 28 days or more unless otherwise specified in the tenancy agreement. For rented properties, we carry out periodic tenancy checks to ensure that the legal tenant is in occupation. Our staff takes notes of any properties that appear to be abandoned or illegally occupied. We investigate and take action where necessary. We take measures to prevent our void properties becoming squatted by minimalizing void periods and where necessary secure empty properties using boarding, caging measures or use security alarms. We encourage neighbours, caretakers and estate security personnel to notify us if they suspect squatters have entered the property. 5. Unauthorised occupants We investigate all reports of unauthorised occupancy to ascertain whether the tenant has illegally sublet the whole or part of their property in breach of the terms of their tenancy agreement. If we conclude that the suspected subtenant is a house-sitter or lodger we may take action according to our policy on lodgers and sub-tenants or absent tenants. Where we conclude that there is an unauthorised occupant in our property, we initiate the appropriate legal action to recover possession of the property. Where we have previously or continue to receive payments from an unauthorised occupant we confirm in writing that any payment received is for use and occupation only. Where a leaseholder sub-lets without consent and this is a breach of their lease, we take appropriate action in line with our Leasehold management policy. This could include an application to the First Tier Tribunal for a determination that a breach of covenant has taken place. 6. Squatters We investigate all allegations and reports of squatting within the timescales defined in our procedures. We obtain and gather evidence to inform and support Police and legal action. We keep accurate records of the investigation and take photographic evidence where appropriate. Where squatting is detected we take effective action, including notifying the Police to report the matter or apply for and obtain an interim possession order. We seek to recover damages and costs related to squatting. We provide housing advice and support for our customers who are temporarily displaced or made homeless by squatters. Where squatting is detected in our commercial properties we resort to civil law and obtain a court order to evict them in line with our internal procedures. Unauthorised Occupants and Squatters policy v1.4 March 2015 Page 9

10 7. Rights of unauthorised occupants and squatters Unauthorised occupants and squatters occupy property without our permission, but we still have certain legal obligations to them. We do not: harass or threaten occupants in any way; interfere with the services of the property; or use force to obtain entry to the premises except with a court order. We do not carry out repairs to a property occupied by an unauthorised occupant or squatter, unless there are health and safety implications or there is a risk of damage or loss to our property. We ensure that unauthorised occupants or squatters are kept informed of any legal action we are taking and refer them to external support services for further advice and assistance. In the case of a secure or assured tenancy, the unauthorised occupant may claim a right to the property via a succession, assignment or mutual exchange. In these cases we follow the appropriate policy. 8. Diversity and inclusion A Diversity and Inclusion Assessment has been completed as part of this policy review and a copy is available on request. To request a copy please contact us at policy@genesisha.org.uk or for further information on our commitment to equality and diversity at Genesis please visit our website. 9. Related internal documents Lodgers and Sub-tenants policy Absent Tenants policy Succession policy Lettings and Allocations policy Anti-social Behaviour policy Data Protection policy 10. Legislation, regulation and guidance Matrimonial Causes Act S24 Protection from Eviction Act 1977 Section 7 of the Criminal Law Act 1977 Housing Act 1985 Criminal Justice & Public Order Act 1994 Family Law Act 1996 Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 Civil Procedure Rules (Part 55 and Schedule 2) Unauthorised Occupants and Squatters policy v1.4 March 2015 Page 10

11 Author: Ryan Ward; Policy Officer Approval date: 03 March 2015 Approved by: Policy owner: Accountable Director: Policy Review Group Director of Neighbourhoods Executive Director of Communities Unauthorised Occupants and Squatters policy v1.4 March 2015 Page 11

12 Disposal of goods Policy Summary: Version: 2.0 This policy sets out Genesis Housing Association s approach on how to deal with goods left in properties after the end of a tenancy, license or lease, and for goods disposed of or left in communal areas in all premises managed by Genesis. It applies to all customers who are living in homes that are owned or managed by Genesis. It further applies to leaseholders and shared owners in relation to goods left in communal areas.. Effective from: 19 May 2015 Planned review date: 03 April 2018 Who to contact: Your Business Manager. Contents 11. Purpose Definitions Customer responsibilities Genesis responsibilities Diversity and inclusion Related internal documents Legislation, regulation and guidance Further reading Page 12 of 16

13 11. Purpose This policy takes account of our legal requirements when removing, storing and disposing of goods, ensuring that we do not inappropriately dispose of any goods belonging to customers. The policy also takes account of our duty under fire safety regulations to remove hazards that may pose a risk or impede fire exits. 12. Definitions Goods: anything that can be conceived of as having monetary value. Perishable items, hazardous waste or those considered to be rubbish are not considered as goods under this policy, and will be disposed of immediately, once appropriate records have been taken. Communal areas: any part of a building and/or land that all customers in a block share or can use, including stairs, hallways, service cupboards, landings and open areas HMO: House in Multiple Occupation; a property rented out by at least 3 people who are not from 1 household (e.g. a family) but share facilities like the bathroom and kitchen. It s sometimes called a house or flat share. 13. Customer responsibilities Customers must accept their responsibilities regarding goods as stated in their occupancy agreement. This would include: customer responsibility regarding the removal of possessions at the end of a tenancy co-operation in keeping common areas free from obstruction compliance with health and safety advice. Staff must be mindful that clauses vary between occupancy agreements. 14. Genesis responsibilities It is our duty to ensure that abandoned goods are disposed of in a proper manner, in accordance with legislation and regulation. a. Goods left in properties after end of tenancy We advise customers that goods must be cleared at the end of a tenancy and inform former customers when we intend to dispose of their goods where possible. We make reasonable efforts to trace the owner of abandoned goods and instruct them to retrieve their goods within a given period. This includes contacting next-of-kin in cases when a customer has passed away. Where appropriate, if staff are aware that the customer(s) concerned has an existing support network they will liaise with appropriate support agencies or advocates to ensure that the notice, removal and disposal process is fair and fully understood. Any goods that could be considered a fire hazard or a potential health and safety hazard will be removed and disposed of immediately. Disposal of goods policy v 2.0 May 2015 Page 13

14 b. Goods left in communal areas We advise customers that goods may not be stored or disposed of in communal areas in the properties we manage. Staff make reasonable efforts to identify and contact the owner of abandoned goods before disposal is arranged. Fire safety in communal areas We take a proactive approach towards fire safety to protect customers and remain compliant with current legislation. Any goods that could be considered a fire hazard will be removed and disposed of immediately. Should a fire occur and our customers exit from the premises has been impeded, we are liable under corporate liability legislation. Therefore, the onus is on all staff to comply with the legislation. Under the Regulatory Reform (Fire Safety) Order 2005, Genesis has a legal duty to ensure that the premises and any equipment provided in connection with fire fighting, fire detection and warning, or emergency routes and exits are maintained in good working order and are available for use at all times. In general, HMOs, high rise flats and housing conversions are all considered higher risk and are subject to inspection. Corrective measures are taken where necessary. Accordingly, we remove any goods from communal parts (e.g. stairs, corridors, shared kitchens, bathrooms and lounges etc.) where they are deemed to cause a risk of obstruction, arson or other risk. c. Record keeping We ensure that an inventory is taken of all abandoned goods, including photographs, before taking any action. Genesis relies on these records should a customer apply for damages if they believe their goods have been wrongly disposed of. d. Storage Where appropriate, we store goods in a safe, dry and secure location for a limited period. We inform the customer about where the goods are being stored and how long they will be stored for. If the customer fails to collect the goods within the allotted time, we exercise our right to sell the goods concerned. We return any monies to the customer, where possible; however we deduct the cost of removal and storage and recoup monies to pay any outstanding debt to Genesis. 15. Diversity and inclusion A Diversity and Inclusion Assessment has been completed as part of this policy review and a copy is available on request. To request a copy please contact us at policy@genesisha.org.uk or for further information on our commitment to equality and diversity at Genesis please visit our website. Disposal of goods policy v 2.0 May 2015 Page 14

15 16. Related internal documents Health and safety policy Fire safety procedure Disposal of goods procedure and process Void process ASB policy Waste management guidance 17. Legislation, regulation and guidance ASB and Crime Act 2014: Dumping of rubbish and furniture in communal areas can be seen as anti-social behaviour under the ASB and Crime Act Staff should refer to our ASB policy for further guidance. Torts (Interference with Goods) Act 1977 Customers possessions are protected by the Torts (Interference with Goods) Act This governs the sale and disposal of goods, particularly abandoned goods. It sets out how long the goods must be stored for and how monies received from the sale of goods should be distributed. The Regulatory Reform (Fire Safety) Order 2005 (RRO) The RRO came into force on 1 October 2006 and made significant changes to fire safety legislation. The nature of the new legislation is based on the principles of risk assessment and applies to virtually all premises. With regards to housing it applies to: Premises that provide supported housing. The RRO is not limited to residential care homes or other sheltered housing; and The shared common areas of properties such as general needs housing which several households will use. The RRO does not apply to people s private homes, including individual flats in a block or a house. The RRO places the responsibility for fire safety on responsible persons. As a provider of housing Genesis must assess the risk to fire safety in their properties and take adequate precautions to reduce the risk. Housing Act 2004 The Act introduces the Housing Health and Safety Rating System, (HHSRS) which is a risk assessment procedure for residential properties. The legislation places a duty on landlords to carry out thorough risk assessments and act on any findings. The HHSRS requires landlords to assess fire safety and regulation standards. Disposal of goods policy v 2.0 May 2015 Page 15

16 18. Further reading Torts (Interference with Goods) Act 1977 Regulatory Reform (Fire Safety) Order 2005 Housing Act 2004 Corporate Manslaughter and Corporate Homicide Act 2007 Housing Health and Safety Rating System: Guidance for Landlords and Property Related Professionals, Department of Communities and Local Government Author: Erik Nolander Approval date: 19 May 2015 Approved by: Policy Review Group Policy owner: Director of Neighbourhoods Accountable Director: Director of Neighbourhoods Disposal of goods policy v 2.0 May 2015 Page 16