Northampton Tenant s Panel Tenancy Rights and Tenancy Agreements Development Session Dr Steve Sharples (PS Consultants) Independent Tenant Adviser 6 November 2012
Why are tenancy rights an issue? In any option other than retention the tenancy rights of council tenants would change. You need to know: What those rights are now How they would change if retention were not the option chosen (i.e. some form of transfer)
Tenancy Rights A tenancy - basis of the right of an occupier to occupy - a grant of an estate in land i.e. a leasehold interest Subject to common law ( so if you have a dispute you have rights under common law that you may be able to call on ) Also subject to statute and the terms of the tenancy agreement
Tenancy Rights/2 Tenancy rights are present in 3 spheres : Common Law ( e.g privacy, noise, trespass, health and safety,etc) ( now including Human Rights legislation) Statute ( Housing Acts, Landlord and Tenant Acts, Homelessness Acts, etc) The Tenancy Agreement ( i.e. the specific terms granted by by the landlord in the agreement)
Links These are linked for example : Tenancy Agreement terms must not violate people s common law rights terms can t be too restrictive Statute ( e.g. Housing Acts ) can require Tenancy Agreements to include certain rights
Tenancy Rights pre-1980 First protection introduced for tenants in First World War Govt imposed rent controls and security of tenure as a temporary measure ( Clydeside Rent Strikes) But aimed primarily at private sector tenants ( by far the largest single group post-world War 2) Applied to all dwellings falling below a net rateable value level -90% of all dwellings by 1953 Conservatives began slow process of de-regulation from the mid- 1950 s on
Pre 1980 Council and HA Tenants had little statutory protection ( Rent Acts post- Rachman did protect private sector tenants to a degree) Assumption was that public sector landlords could be trusted to behave reasonably ( Model Landlords ) Councils and HAs could end periodic tenancies by issuing a simple landlord s notice to quit No reasons had to be given and tenants had little or no defence against the notice
1980 on Four Key Acts ( statutory rights /responsibilities) 1980 Housing Act Granted statutory secure tenancies to local authority tenants and also applied to many Housing Association tenants. Key tenant rights now granted by law ( e.g. Right to Buy) for first time introduces principle of Security of Tenure 1985 Housing Act (and Landlord & Tenant Act 1985) grants further rights to tenants and develops existing ones (e.g. Right to Buy ) also contained provision for stock transfer from council to Housing Associations (Section 32). Security of Tenure now derives from Part IV of this Act
continued 1988 Housing Act The watershed act! Retains secure tenancies for council tenants but obliges Housing Associations to grant assured tenancies as in the private sector Therefore ; Housing Associations must use the new grounds for possession set out in the Act and obliged ( by policy) to charge affordable rents
continued 1996 Housing Act Gives councils powers to develop Local Housing Companies ( and for tenancies to be granted by them) Introduces the term Registered Social Landlord (abolished in 2008 Housing and Regeneration Act now Councils and Housing Associations are called Registered Providers ) Grants the Right to Acquire to assured tenants of a stock transfer landlord and of properties funded by grant built since April 1997 Permits the granting of Introductory Tenancies for new council tenants and Assured Shorthold Tenancies for RSLs
Fixed Term Tenancies - 2012 Following introduction of Localism Act 2011 a new form of tenancy was introduced Allowed the granting by Registered Providers of tenancies of a minimum of 5 years ( and exceptionally 2 years) - but with no automatic rolling over at the end of the fixed term Taken up initially by Housing Associations to get funding from the Affordable Housing pot but is available to Councils also
Secure and Assured Tenancies
Secure Tenancies Public bodies that grant secure tenancies include; Local Authorities Ministry of Defence Crown Commission
Secure Tenants Rights Right to Buy ( and Preserved Right to Buy) Right to have a written statement of tenancy Right to consultation about changes in housing management arrangements and changes to tenancy agreement ( but no right to refuse themunlike RP tenants) Right to Information
continued Right to succeed and assign (e.g. in mutual exchanges) Right to mutually exchange Right to sub let and take in lodgers Right to Repair Right to Manage
Assured non-shorthold tenancies Whereas the rights of secure tenants are set out in Statute ( the various Housing Acts) the rights of assured tenants are set out in their lease. Tenant rights in Housing Associations are contractual In practice Housing Associations grant much the same rights as secure tenants, and in the event of stock transfer those rights can be guaranteed in a transfer agreement Had Labour adopted the Law Commission recommendations in 2006 for a single social housing tenancy those would have been contractual also
A Range of Social Housing Tenancies Main forms are ; Council Secure Tenancies Assured non-shorthold Tenancies Security of Tenure -------------------------------------------- Introductory Tenancies Assured Shorthold Tenancies Family Intervention Tenancies Demoted Tenancies Fixed term tenancies (post 2012)
Security of of Tenure Security of Tenure is the key tenancy right Security of tenure means the right of a periodic tenant to occupy the property which the landlord cannot end without a court order ( where the grounds for possesion must be one or more of those set out in law ) Between 1980 & 1988 effectively the same for council and housing association tenants. Post-1988 significant differences in grounds for possession but not the principle of the right to occupy and how it can be ended. So Security of Tenure applies to both council and HA tenants
Secure tenancies differ from assured non-shorthold tenancies principally in the grounds for possession i.e. where a landlord wishes to re-claim the property
Post 1988 Grounds for Possession Secure Tenancies have 16 grounds for possession all of them discretionary Assured tenancies have 17 grounds for possession 8 are mandatory and 9 discretionary
Secure Tenancy Grounds for Possession All Discretionary Grounds test of reasonableness applies Ground 1 Ground 2 Rent Arrears rent lawfully due from the tenant has not been paid Other breach of tenancy agreement( e.g. not paying other due sums such as water rates) Nuisance and Annoyance guilty of conduct causing a nuisance to a person residing, visiting,or otherwise engaged in lawful activity in the locality ( first limb ) Criminal Activity using the home for illegal or immoral purposes and/or where an arrestable offence has been committed in, or in the locality of, the home ( second limb )
continued Ground 2A domestic violence where one partner has left because of violence or threats of violence against themselves of a member of their family residing with them Ground 3 deterioration in condition - the condition of the dwelling house or any common part has deteriorated owing to acts of waste..or neglect or default- by the tenant, member of the household, or sub-tenant/lodger Ground 4 deterioration of furniture ( where provided by the landlord) - the condition of furniture has deteriorated through ill treatment Ground 5 tenancy by deception where the tenancy was granted following a false statement made by the tenant or by someone else acting at the tenants request
continued Ground 6 an illegal premium paid the tenant made or received a payment to secure the assignment by exchange of the tenancy Ground 7 non-housing accommodation ( e.g. social service of educational facility) - the tenant has been guilty of behaviour that is inappropriate to the nature of the facility Ground 8 temporary accommodation where the tenancy was granted on a temporary basis to allow repair/ improvement work to the tenants home and the tenant refused to quit that accommodation once that work is complete.
continued suitable alternative accommodation tests only apply Ground 9 overcrowding where the dwelling house is overcrowded ( as defined in Part 10 of the 1985 Housing Act) Ground 10 landlord s works where the landlord intends to demolish the property or carry out works to the property of land that can t be done without obtaining possession Ground 10a landlord seeking to sell with vacant possession where the property is in a redevelopment area
continued Ground 11 charitable landlords the landlord is a charity and it would conflict with the charitable objectives of the charity for the tenant to remain in occupation Tests of reasonableness and suitable alternative accommodation apply Ground 12 tied accommodation the landlord requires the dwelling for occupation by someone they employ or is employed by an organisation with whom they have a contract Ground 13 accommodation for the disabled where the dwelling house has special features that makes it suitable for disabled people and a) there is no longer such a person living in that home or b) the landlord requires it for such a person.
continued Ground 14 conflict of purpose of specialist housing association or trust where the landlord lets properties to people in special circumstances ( e.g.as a half way house ) and either a) no such person now lives there or b) the landlord needs the property for such a person Ground 15 special needs accommodation the home is one of a group of those provided by the landlord or people with special needs and either a) no such person now lives there or b) the landlord now needs that property for such a person Ground 16 under occupation ( does not apply to original tenant) if the tenant is a successor, other than the spouse of the deceased, the accommodation is more than is reasonable required by that tenant and possession proceedings were begun more than 6 months but less the 12 months of the previous tenant s death
Assured Tenancies Assured Tenancies can be periodic or fixed term Periodic means they are granted weekly or monthly and are automatically renewed unless the tenant gives notice to quit or the landlord is granted a possession order and RSLs may only grant periodic tenancies Assured non-shorthold tenancies are periodic tenancies (and Housing Associations must grant them - unless it is a fixed term tenancy) Private landlords may grant periodic tenancies but in practice almost never do fixed term tenancies can be ended by a simple notice to quit ( although the landlord may still need a court to enforce the notice) Assured shorthold tenancies are fixed term
Assured Tenancies Grounds for Possession Mandatory and Prior Notice Grounds ( prior notice means that the landlord must have informed the tenant in writing at the commencement of the tenancy although the judge has discretion to waive the requirement if it is equitable to do so) Ground 1 owner occupation ( two months notice of proceedings apply) where the landlord formerly lived in the property and wished to do so again Ground 2 repossession by lender ( two months notice of proceedings apply) where the property is subject to a mortgage or charge and the lender is entitled to exercise the power of sale
continued Ground 3 Our of season holiday let ( two weeks notice of proceedings apply where the tenancy is for a fixed term of not more than 8 months and was occupied for a holiday during the 12 months prior to the start of the tenancy. Ground 4 Vacation lets of student accommodation - ( two weeks notice of proceedings apply) the tenancy is for a fixed term of not more than 12 months and during the 12 months before the start of the tenancy was used as a student letting Ground 5 Minister of Religion ( two months notice of proceedings apply) where the property is held for the purpose of being available for occupation by a Minister of Religion and is now required for that purpose
continued Ground 6 redevelopment - ( two months notice of proceedings apply) where the landlord intends to demolish, reconstruct, or carry out substantial works to the whole of the majority of the property and cannot do this with the tenant in residence but does not apply where the landlord purchased the property during the tenancy Ground 7 Death of a periodic assured tenant ( two month notice of proceedings apply) where the tenancy is a periodic tenancy which has been passed on in the will of the former tenant - proceedings must start no later than 12 months after the death of the tenant or the landlord first becoming aware of the death. Does not apply where a spouse ( or legal partner) succeeds to the original tenancy
continued Ground 8 serious rent arrears ( two weeks notice is required) at the time of the notice and at the time of the hearing there are ; 8 weeks rent owing ( if paid weekly or fortnightly) : two months rent owing ( if paid monthly) : one quarter owing if paid quarterly : and three months rent owing if paid annually Discretionary Grounds ( reasonableness tests apply) Ground 9 suitable alternative accommodation ( two months notice required ) suitable alternative accommodation is available for the tenant (and the landlord can show grounds why the property is not appropriate to that tenant e.g. under occupation : property has special features: or property needed for demolition/ major refurbishment Ground 10 rent arrears ( two weeks notice applies) some rent is due at the time the notice is served and at the start of court proceedings
continued Ground 11 persistent delay in rent payments ( two weeks notice required) where the tenant has persistently delayed payment of rent usual test is ; one instalment of rent has been in arrears for a significant period or instalments have been persistently late, or both Ground 12 breach of any obligation where the tenant breaches any obligation that is binding on them in their capacity as tenants ( e.g. in covenants) Ground 13 waste or neglect the condition of the dwelling house has deteriorated because of waste or neglect or default of the tenant (applies to common areas too)
continued Ground 14 nuisance, annoyance, illegal or immoral use of property ( two weeks notice required) where the tenant or anyone living in the property or visiting it has been guilty of any of these. Ground 14 A domestic violence ( two weeks notice required ) applies only to HAs and charitable trusts where a married couple or legal partners have occupied the property and one partner has left because of violence or threat of violence Ground 15 deterioration of furniture ( two weeks notice required) as Ground 13 Ground 16 premises let to employees dwelling house let to tenant as a consequence of employment and person ceases to be employed
continued Ground 17 recovery of possession where grant of tenancy was induced by false information (two weeks notice required) where the tenant or someone acting on their behalf knowingly gave false information to acquire the tenancy
Are HA tenancies less beneficial to tenants? Although there are mandatory grounds for possession Judges often get round these by using adjournment on terms HA tenancy agreements can only be changed by consent from tenants (unlike council tenancies) in transfer special arrangements apply
Key Issues in Transfer Acquiring HAs routinely agrees to not to use : Grounds 1,2,3,4,5,6,8, ( and 11?) for all existing ( and future?) tenants in the event of transfer Plus Preserved Rights apply Other rights can be written in to a Transfer Agreement