Islington & Shoreditch Housing Association (ISHA) Relationship Breakdown Policy

Transcription

1 Islingtn & Shreditch Husing Assciatin (ISHA) Relatinship Breakdwn Plicy 1. Plicy Statement This plicy utlines Islingtn & Shreditch Husing Assciatin s (ISHA) apprach t dealing with relatinship breakdwn and sets ut the legal psitin f tenants fllwing relatinship breakdwn and ISHA s plicy & prcedures in these circumstances 2. Related Prcedures and ther Dcuments Dmestic Vilence Jint tenancy Vacatin ntices frm tenants Unauthrised ccupatin Mutual Exchange and Assignment f Tenancy 3. Definitin Relatinship breakdwn refers t a permanent end t a relatinship. 4. Respnsibility Tenancy Services Managers, the Senir Tenancy Services Manager and the Supprted Husing Manager are respnsible fr prviding tenant advice and implementing tenancy changes. The Operatins Directr will have a mnitring rle and the Revenue Allcatins and Perfrmance Directr must agree t new lettings and assignments. 5. Prcedure 5.1 Jint tenancies If jint tenants n lnger want t live tgether, ISHA has n right in law t decide which tenant shuld have the tenancy. Only the curts can make this decisin as part f divrce r separatin prceedings. Unless they have a curt rder, the jint tenancy cntinues and bth tenants are liable fr the rent and ther tenancy cnditins, even if there is nly ne f them still living in the prperty. The Assciatin cannt take a tenants name ff the tenancy, even if ne tenant has been absent fr many years, r cnsents t the change except as utlined belw. 1

2 5.1.1 Assignment by Curt Order Either tenant can apply t the family curt fr the tenancy t be transferred t them (under Matrimnial law if married, under the Children Act 1989 if they have children, r under the Family Law Act 1996). This right desn t exist nce the tenancy has ended e.g. by tenants ntice t quit. Tenants shuld be advised t take separate legal advice n their rights in this area. If either tenant receives a curt rder the tenancy must be assigned r transferred t them accrding t the terms f the rder. The Tenancy Service Managers, Senir Tenancy Services Manager and Supprted Husing Manager shuld attach a cpy f the curt rder t the riginal tenancy agreement and send the lettings frm t the Allcatins and Vids Officer t ensure the tenancy recrds are shwn in ne name nly and marked assignment if apprpriate. Family Law Act rders d nt require assignment. Assignments granted by curt rders d nt cnstitute a successin Assignment t smene qualified t succeed Secure tenants have the right t assign the tenancy t smene wh wuld have been qualified t succeed in the event f their death. Therefre prviding bth tenants cnsent t the separatin, and agree wh shuld remain with the tenancy, jint r sle tenants can assign the tenancy t the remaining partner. Any utstanding rent arrears will becme the respnsibility f the tenant t whm the tenancy has been assigned and they will be required t sign a dcument acknwledging this (Appendix 1) This cunts as a successin. ISHA will cnsent t assured tenants ding this in similar circumstances prviding there is written and signed evidence that bth parties cnsent. All assignments must be in writing (See appendices 2 and 3 fr licence t assign and deed f assignment frms) and bth parties will be required t attend ISHA s ffices t cmplete the relevant dcuments althugh they may d s at different times Tenant s Ntice t Quit Either party can end a jint peridic tenancy by serving a tenant s ntice t quit n the Assciatin (NB Nt fixed term). This ntice must give 28 days ntice, ending n a Sunday (see "Vacatin ntice frm tenants" prcedure). This ends the tenancy fr all tenants and remves the right f all jint tenants t live in the prperty. If tenants use this methd, they shuld be advised that ISHA will nly grant a new sle tenancy t ne tenant in the circumstances detailed in 7.2. ISHA must ensure that bth parties received the same advice (wherever pssible) regarding the legal psitin f a Ntice t Quit. 5.2 Granting new sle tenancies after Ntice t Quit ISHA may grant a new sle tenancy t the remaining tenant n the fllwing cnditins: 2

3 There is evidence that bth parties cnsent t the change (als see abve) The prperty is nt t large fr the remaining tenant s needs. We may require the remaining tenant t mve t mre suitable accmmdatin, accrding t ur lettings plicy, befre granting a new sle tenancy. Cnsideratin will be given t persnal circumstances, including age and length f ccupatin and extent f under-ccupatin (nrmally 2 r mre bedrms). There are n rent arrears r ther breaches f tenancy. If jint tenants cannt agree t the change, ISHA will nly grant a new assured tenancy in very exceptinal circumstances e.g.: - T prtect a victim f dmestic vilence - T meet the needs f dependent children - If the remaining jint tenant can shw evidence that the ther has been absent fr at least a year and is unlikely t return. 5.3 Re-husing bth parties after relatinship breakdwn We will nt nrmally prvide separate re-husing fr bth partners fllwing a relatinship breakdwn, with the fllwing exceptins: In incidences f dmestic vilence, where the victim will be assisted, either directly r indirectly. (See Dmestic Vilence Plicy fr guidance.) Where bth tenants agree t give up a large family sized prperty (3 bed r mre) t mve t separate ne-bedrm prperties r bed sits. Cnsideratin will be given t the persnal circumstances f bth tenants, including age and length f ccupatin, as well as current demand fr the prperty t be given up. Other exceptinal circumstances at the discretin f the Operatins Directr (fllwing cnsultatin with the Revenue Allcatins and Perfrmance Directr respnsible fr lettings), e.g. If the departing party may be cnsidered vulnerable under hmelessness legislatin. T encurage a sle tenant t assign t a partner with children, allwing the children t remain in the family hme. Prevent under-ccupatin r prtracted curt prceedings, where the case fr allwing this utweighs the argument against rewarding aggressrs with a new tenancy. 5.4 Sle tenants Married If the sle tenant leaves, the remaining partner is entitled by law, t remain in ccupatin fr as lng as they remain married. ISHA must accept rent frm them as if they were the tenant. Occupatin by the spuse wh is nt a 3

4 tenant is treated as if the tenant ccupied the prperty. This means they have security f tenure and they have the basis f a right t claim Husing Benefit. The remaining nn-tenant can apply t the family curt t have the tenancy awarded t them (Matrimnial Causes Act 1973). If the written cnsent f the departing tenant is given the tenancy can be assigned t them as in para abve Chabiting The law des nt give nn-tenant partners the same right t remain as if they were married. C-habitees wh are nt the tenants are effectively the licensee f the tenant. If the tenant leaves, the tenancy ceases t be secure r assured and culd be ended by the landlrd serving Ntice t Quit n the tenant. The frmer licensee wuld then be treated as an unauthrised ccupier. They can apply t the curts fr a temprary ccupatin rder and t have the tenancy assigned t them permanently, fr example fr the benefit f dependent children (Children Act 1989). If they d nt apply t curt, the sle tenant can assign the tenancy t them as in para abve. Alternatively where there is evidence that bth partners cnsent t the change the sle tenant can end their tenancy by tenant s Ntice t Quit and a new sle tenancy will be granted t the remaining partner as in para 5.2 abve. Where the sle tenant des nt cnsent, the nn-tenant partner will usually need t apply t the lcal authrity fr re-husing. In cases f dmestic vilence, where the nn-tenant partner is the victim ISHA may ffer assistance in line with its dmestic vilence plicy. 5.5 Children ISHA will encurage a slutin t family needs t ensure that children have a suitable and stable hme. In all cases f relatinship breakdwn we will attempt t find a slutin in law that enables the partner with children t remain unless suitable alternative accmmdatin is available. 5.6 Dmestic Vilence Dmestic vilence is a crime. It is als a breach f tenancy. ISHA will d everything pssible t supprt victims f vilence. This includes getting a curt rder t evict perpetratrs and granting sle tenancies t victims, in separate accmmdatin where necessary. See Dmestic Vilence prcedure fr full details. Particular care needs t be taken in cases invlving dmestic vilence, t prtect the victim frm further vilence as a result f any tenancy changes r ISHA S actin. 5.7 Agreeing new sle tenancies The manager respnsible fr lettings must agree all new sle tenancies granted as a result f relatinship breakdwn. 4

5 5.8 Supprted Husing New sle tenancies will nt be granted t remaining partners unless that partner meets the lettings criteria fr that prject and require the additinal supprt prvided. Alternative accmmdatin will nly be ffered in the circumstances f para 5.2 abve. 5.9 Rent Arrears If a sle tenant remains in the prperty after relatinship breakdwn, they cntinue t be liable fr all rent arrears. If a sle tenant leaves, and ISHA agrees t grant a new tenancy t the remaining nn-tenant spuse, the new tenant is nt liable fr arrears n the ld tenancy. If the sle tenancy is assigned t the remaining partner, that persn takes n all the respnsibilities fr the tenancy, including the arrears unless the curts indicate therwise. Jint tenants are all liable fr all arrears. Curt rders may specify the apprtinment f the debt t ne party r anther. Otherwise, if the tenancy is assigned t ne jint tenant, that remaining tenant takes n all the bligatins f the tenancy, including the arrears. The Family Law Act requires curts t cnsider the landlrd s representatin regarding arrears. If a jint tenancy is ended by Ntice t Quit, the whle tenancy ends and arrears cannt be transferred t any new tenancy granted. Where arrears cannt be transferred fllwing relatinship breakdwn, effrts shuld be made t cllect the debt as a Frmer Tenant Arrears unless the Revenue Allcatins and Perfrmance Directr agree t them being written ff Secure r Assured If a jint tenancy was secure, the tenancy remains secure after assignment, transfer r if a new tenancy granted t ne f them as a sle tenant. If a sle tenancy was secure, it remains secure after assignment r transfer (by Family Law Act), but any new tenancy granted t previus nn-tenants must be assured Sub tenants If it is likely that there may be sub-tenants r ther unauthrised ccupiers in the prperty legal advice shuld be sught t ensure tenancy rights are nt cnferred t them. See prcedure fr Vacatin Ntice frm tenants and unauthrised ccupatin prcedure Tenancy Recrds The Tenancy Services Managers, Senir Tenancy Services Manager and Supprted Husing Manager must advise the Allcatins and Vids Officer f any tenancy changes fllwing relatinship breakdwn by cmpleting the relevant lettings frm. 5

6 6. Fraud Cncrete evidence abut the circumstances f a relatinship breakdwn is rarely available, except where frmal divrce prceedings have started. There is the pssibility fr fraud, fr example that tenants may cllude t be re-hused under the relatinship breakdwn plicy in rder t be given better quality husing than their riginal hme. This is a difficult area t investigate. Sme cuples d reunite, even where there has been vilence. This is nt in itself prf f fraud. Sme relatinships fail mre than nce and give rise t a need fr re-husing n mre than ne ccasin. Officers will need t apply a balanced apprach between applying sensitivity with the need t investigate any suspicins, which they may have. All tenants and husing applicants shuld be infrmed at all stages f the re-husing prcess that giving false infrmatin will lead t actin being taken against them. 7. Legal Advice Relatinship breakdwn is an extremely cmplex area f law. Staff shuld nt attempt t give advice in areas where they have insufficient knwledge, r where the situatin is t cmplex. Hwever we d have a duty t prvide practical supprt and advice t assist tenants. This includes prviding lists f useful cntacts and advice n tenancy details. As a landlrd, we must ensure that we d nt restrict the ccupatin rights f legitimate tenants. Slicitrs advice shuld be sught in cmplex situatins t ensure crrect actin is taken by ISHA. 8. Cnfidentiality The cnfidentiality plicy sets ut the circumstances in which infrmatin abut individual residents shuld be passed t thers. This is particularly imprtant in relatinship breakdwn, abve all where vilence is invlved. June

7 Appendix 1 VARIATION OF TENANCY AGREEMENT I, [NAME OF TENANT]( the Tenant ) hereby agree that the fllwing clause be added t the existing Tenant s Obligatins in the assured tenancy agreement in respect f XXXXXXXXXXXXXXXXXXX ( the Premises ), and that the additin f the clause shall take effect as an agreed variatin f the tenancy agreement: The Tenant agrees t repay rent arrears wed in respect f the Tenancy f [AMOUNT OF ARREARS] (which sum is hereby acknwledged by the Tenant as wing t the Assciatin) at the rate f [AGREED REPAYMENT RATE] per week in additin t the rent and ther payments due under this Agreement. If the Tenant fails t keep t this repayment agreement, the Tenant will be in breach f this term f the Tenancy and the Trust will be entitled t seek pssessin f the Premises. Signed. Date (Tenant) Signed Date (Fr and n Behalf f Islingtn and Shreditch Husing Assciatin) 7

8 Appendix 2 The Sign up Dcument (t be used in cases f assignment by Curt Order r assignment t a ptential successr) THIS AGREEMENT IS MADE THIS...DAY OF... BETWEEN: (1) ISLINGTON AND SHOREDITCH HOUSING ASSOCIATION f 1O2 Blackstck Rad, Lndn, N4 2DR ( the assciatin ) and (2)...f Definitin: 1.1 The assignment means the agreement by the tenant t assign the tenancy t the successr by way f an agreement r letter dated The tenant means The premises means The tenancy agreement means a tenancy agreement dated... made between the assciatin and the tenant 1.5 The tenancy means the weekly peridic tenancy granted frm...under the tenancy agreement. 1.6 The rent means the current rate f...&...pence per week) payable under the tenancy agreement 2.1 By the tenancy agreement, the premises were let t the tenant under the tenancy agreement. 2.2 The tenancy is subject t the terms and cnditins under the tenancy agreement 2.3 On the... the tenant assigned the tenancy t the assignee: 2.4 Immediately befre the assignment: (a) The assignee was the tenant f the prperty knwn as... (b) was deemed t be a successr f the prperty referred t in sub-paragraph (a) abve pursuant t sectins 87 t 89 f the Husing Act,1985 and *(c) hereby acknwledge that n and after the date f the assignment s/he is a successr with respect t the tenancy pursuant t sectin 88 f the Husing Act

9 Appendix 3 The Deed Dcument This agreement is made this ( Date) between ISLINGTON AND SHOREDITCH HOUSING ASSOCIATION f 1O2 Blackstck Rad, Lndn, N4 2DR (The Landlrd ) f the first part ASS and (Out ging tenant. ( The first tenant ) f the secnd part and (Incming tenant)..( The secnd tenant ) f the third part WHEREAS: 1. On the day (tenancy start date) the landlrd let the prperty knwn as (utging tenant s address) n an assured/secure tenancy* (please delete as apprpriate t the first tenant. 2. On the day (tenancy start date) the landlrd let the prperty knwn as (incming tenant s address) n an assured/secure tenancy t the secnd tenant. 3. It was a cnditin f the said tenancies that the first tenant and the secnd tenant wuld nt assign their respective tenancies withut first btaining the cnsent f the landlrd. 4. The first tenant wishes t assign his/her tenancy t the secnd tenant in cnsideratin f the secnd tenant assigning his/her tenancy t the first tenant and the landlrd cnsents t the said assignments. NOW THIS DEED WITNESSES as fllws: Pursuant t clause 5.6 f the said tenancy agreements and pursuant t sectins 91 and 92 f the Husing Act 1985, the landlrd hereby cnsents t the first tenant assigning his/her tenancy t the secnd tenant and t the secnd tenant assigning his/her tenancy t the first tenant. 5. All parties accept that this Deed f Assignment perates s that the first tenant irrevcably assigns the tenancy f premises knwn as (yur utging tenant s address) t the secnd tenant and that the secnd tenant irrevcably assigns the assured/secure tenancy f the premises knwn as (yur incming tenant s address) t the first tenant. 9

10 Obverse f Deed Dcument IN WITNESS THEREOF all parties have executed this agreement as a Deed the day and year first befre written. EXECUTED AS A DEED by the LANDLORD } by an authrised Officer signing it in the presence f: } Revenue and Perfrmance Manager s signature } (name), Revenue and Perfrmance Manager Witness: Perfrmance and Allcatins Officer s signature Name: Perfrmance and Allcatins Officer s name, Address: 102 Blackstck Rad, Lndn N4 2DR Occupatin: Perfrmance and Allcatins Officer EXECUTED AS A DEED by the said First Tenant in the presence f: } Signature f the utging tenant } (utging tenant s name). Witness: Perfrmance and Allcatins Officer s signature Name: Perfrmance and Allcatins Officer s name Address: (Office address) Occupatin: Perfrmance and Allcatins Officer EXECUTED AS A DEED by the said Secnd Tenant in the presence f: } Signature f the utging tenant. } (utging tenant s name). Witness: Perfrmance and Allcatins Officer s signature Name: Perfrmance and Allcatins Officer s name Address: (Office address) Occupatin: Perfrmance and Allcatins Officer 10