Succession Policy Summary: This policy sets how we deal claims for succession following the death of a tenant. Tenants have a range of statutory and contractual succession rights which vary according to the type of tenancy and variations to our standard tenancy agreements Version: 1.3 The policy applies to customers living in homes owned and managed by Genesis Housing Association. It does not apply to customers living in homes managed on behalf of another landlord. Effective from: 15 July 2015 Planned review date: 01 July 2018 Who to contact: Relevant business manager. Contents 1. Purpose... 2 2. Definitions... 2 3. Types of succession and eligibility... 3 4. Dealing with succession claims... 5 5. Under occupation and succession... 7 6. Adapted and special accommodation and succession... 8 7. Allocating suitable alternative accommodation... 9 8. Temporary housing... 9 9. No claim for succession... 9 10. Diversity and inclusion... 10 11. Related internal documents... 10 12. Legislation, regulation and guidance... 10 Page 1 of 30
1. Purpose The purpose of this policy is to: outline the statutory rights available to tenants and their family members outline the contractual rights available to our tenants and their family members determine the circumstances where we will grant discretionary succession. 2. Definitions Assured - Any reference made to assured tenancies within this policy includes both periodic assured and assured shorthold fixed term tenancies, unless stated otherwise. Statutory rights - Legal rights established under the Acts referred to in section 12. Contractual rights - Rights given to some people through the tenancy agreement, rather than by statute. Discretionary rights - Rights given to some people at our discretion. Any reference to we or us refers to Genesis. 2.1 Definition of spouse, family member and qualifying member We have adopted the definition of a family member in s.113 of the Housing Act 1985. (1) A person is a member of another person s family [ ] if- (a) [they are] the spouse or civil partner of that person, or [they] and that person live together as husband and wife (or as if they were civil partners), or (b) [they are] that person s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. (2) For the purpose of subsection (1)(b) - (a) a relationship by marriage, or civil partnership, shall be treated as a relationship by blood (b) a relationship of the half-blood shall be treated as a relationship of the whole blood (c) the stepchild of a person shall be treated as [their] child, and (d) an illegitimate child shall be treated as the legitimate child of [a] mother and reputed father. For assured tenancies, a person living with the tenant as a long-term partner (a cohabitee, including same sex relationships) is treated in the same way as a spouse or civil partner. For secure tenants, a person living with the tenant as a long-term partner (a cohabitee, including same sex relationships) is treated as a member of the family. This is important because it means that a cohabitee of a secure tenant who wishes to succeed must demonstrate 12 months residence in the property. A foster child does not qualify as a member of the family. Succession Policy v1.3 July 2015 Page 2 of 30
3. Types of succession and eligibility 3.1 Joint tenants and survivorship Upon the death of one joint tenant, the tenancy automatically transfers to the remaining tenant. The legal term for this is survivorship. This happens automatically at the point of death and does not require authorisation from us. The remaining tenant becomes a sole tenant. Some of our tenancy agreements state that we will not consider survivorship as succession; in these cases an additional contractual succession can take place following the death of the remaining tenant. 3.2 Statutory rights Legislation only provides for one statutory succession, this includes succession by survivorship. There can be no further statutory succession. Secure tenants A person has a statutory right to succeed to a secure tenancy if they occupy the property as their only or principal home at the time of the tenant s death. The following order of priority applies: 1. the tenant s married, civil partner or co-habitee 2. a qualifying member of the tenant s family who has lived with the tenant for a period of 12 months or more before the tenant s death, and the property was their main residence. As from the 1st of April 2012 statutory succession rights for all new secure tenancies will only apply to a tenant s married or civil partner. Other resident family members, including cohabitees, will no longer have a statutory right to succeed in the absence of a resident spouse or partner. Contractual or discretionary succession may apply. Assured tenants (including fixed term assured shorthold tenants) The Localism Act 2011 extended the existing succession law so that it applies to fixed term tenancies. Therefore any reference made to assured tenancies within this policy will include both periodic assured and assured shorthold fixed term tenancies, unless stated otherwise. A person has a statutory right to succeed to an assured tenancy if they occupy the property as their only and principal home at the time of the tenant s death and they are the tenant s married or civil partner or a person living as the tenant s married or civil partner (cohabitee). Under the Housing Act 1988, family members do not have a statutory right to succeed to an assured tenancy. Succession cannot take place if the deceased tenant was a statutory successor or where the tenancy was assigned to the tenant as a potential successor during the lifetime of the previous tenant. There is no right of succession where a tenant became the tenant by survivorship (see above). Succession Policy v1.3 July 2015 Page 3 of 30
Periodic assured shorthold tenants Periodic assured shorthold tenants have statutory rights of succession to their spouse or partner. Section 7.0 provides more details about periodic assured shorthold tenancies we issue to temporary housing tenants. Licensees Customers living in properties that have a licence agreement, known as licencees, do not have succession rights. 3.3 Contractual rights The tenancy agreements that we issue to new customers only refer to statutory rights of succession and do not include additional contractual rights. However, many Genesis tenants have signed tenancy agreements with us which do include additional contractual succession rights. Where a person has a contractual right to succession, but not a statutory right, we will issue a new tenancy agreement in line with our tenancy policy unless the deceased tenant s tenancy agreement explicitly prescribes which agreement we must issue. This will generally be a five year assured shorthold fixed term tenancy, with a probationary period subject to the exclusions set out in the tenancy policy. The new tenant will not be a statutory successor so there will be a further right of statutory succession when they die. Contractual rights are granted: where it meets the requirements written in the deceased tenant s tenancy agreement where it is a condition of a stock transfer. 3.4 Discretionary succession rights We will consider granting discretionary succession rights where a spouse, family member, household member or carer does not have a statutory or contractual right to succeed to a tenancy. We will treat each case on its merits. Discretionary succession is not a legal succession and in these cases we will issue a new tenancy agreement in line with our tenancy policy as in the case of a contractual succession. This will generally be a five year assured shorthold fixed term tenancy, with a probationary period subject to the exclusions set out in the tenancy policy. The new tenant will not become a successor and there will be a further right of statutory succession on their death. We will adopt the same approach for secure and assured tenancies when considering whether to grant a discretionary succession. When deciding whether to grant a discretionary succession, we will take the following facts about the applicant into account. Their relationship to the deceased tenant The length of time they have lived at the property Whether it is their only or principal home The age of the applicant (e.g. whether a minor) Whether the applicant has any support needs or vulnerabilities Succession Policy v1.3 July 2015 Page 4 of 30
How suitable the property is for their needs The applicant s eligibility for housing if part of a scheme or project e.g. sheltered or supported housing The composition of the household planning to live in the property Whether or not permission to reside has been previously sought but not granted Whether an offer of accommodation would be in line with allocations and lettings criteria The local demand for housing The extent of any under occupation The applicant s ability to pay rent and sustain the tenancy. This list is not exhaustive. We will refer to our lettings and allocation policy and consider whether the person will be made homeless if the discretionary succession is not granted. In the case of a discretionary succession we may offer a tenancy of suitable alternative accommodation where we consider it appropriate. We will only make one reasonable offer of alternative accommodation. 4. Dealing with succession claims We will deal with succession claims with sensitivity at a time of grief and loss for the family or household involved. We will work to determine whether applicants are eligible to succeed to the tenancy as swiftly as possible. If an applicant is not eligible to succeed, we will inform them as soon as possible and explain the reasons for refusing the claim. If a claim for succession is rejected, we will always provide a detailed explanation of our reasons for rejection. We will investigate each claim thoroughly to ensure that the applicant is eligible to succeed to the tenancy, ensuring that we meet our statutory obligations together with those contractual obligations laid out in our tenancy agreements. We may ask the applicant to provide documents or evidence to support their claim for succession, for example proof of their residence and the period of residence. If we suspect tenancy fraud we will investigate this according to our tenancy fraud processes. 4.1 Supporting vulnerable customers Where a vulnerable customer is eligible to succeed to a tenancy we will liaise with our Tenancy Support team or support partners for advice. It may be appropriate for the customer to receive an assessment of their need for support. We will not refuse a succession claim due to vulnerability. Succession Policy v1.3 July 2015 Page 5 of 30
4.2 Multiple claims for succession Only one person can succeed. We will not permit joint successors under any type of succession. Where we receive more than one claim for succession to the same tenancy, we will ask the potential successors to decide amongst themselves who should be the successor. If the potential successors cannot decide, we will make a decision based on criteria outlined in our succession procedure. A spouse or partner will always take priority over another member of the family. 4.3 Issuing a new tenancy agreement Statutory succession In a statutory succession under the Housing Acts 1985 or 1988, the successor succeeds to the existing tenancy agreement. We will not issue a new tenancy agreement to statutory successors. Contractual or discretionary succession Contractual and discretionary successions are not statutory successions and in these cases we will issue a new tenancy agreement. See sections 3.3 and 3.4 for details about which agreements to issue for contractual and discretionary successions respectively. 4.4 Rent arrears and succession Joint tenant and survivorship Where succession is claimed through survivorship, the remaining tenant is liable for any arrears and entitled to any credit on the rent account. Statutory succession When a tenancy passes to a statutory successor, they acquire it with all the rights and obligations that existed at the time of death. However, this does not include any rent arrears which will pass to the deceased tenant s estate and should be dealt with by the personal representatives (if there are any). Contractual succession and discretionary succession Where either a contractual or discretionary succession has taken place we will grant a new tenancy agreement and we are entitled to require the new tenant to repay the arrears as a condition of granting the new tenancy. The arrears can either be paid as a lump sum or by way of instalments in which case the payment schedule needs to be incorporated into the tenancy agreement so it becomes a term of the tenancy. In all cases, we will give the successor a reasonable opportunity to clear the arrears or make an arrangement to pay by instalments. 4.5 Successors under 18 years old agreement for tenancy Succession Policy v1.3 July 2015 Page 6 of 30
There is no minimum age for someone to succeed to a tenancy. Successors under the age of 18 years cannot hold a legal interest in land so we will provide them with an Agreement for tenancy until they turn 18. With an Agreement for tenancy, the young person is liable for the rent and must comply with any conditions relating to terms of occupation. The young person will enjoy all the rights of a legal tenancy and the legal interest will pass to them automatically once they reach the age of 18 years. We recognise that other agencies may need to be involved in these cases, such as social services, and we will work closely with them to support the young person to establish themselves in the tenancy. We may also support the young person through our Tenancy Support Team, see 4.1. Further details about housing minors and Agreements for tenancy can be found in the tenancy policy. 4.6 Succession to an affordable rent property Where a discretionary succession is agreed on a property pre-identified for conversion to affordable rent, the new tenancy will be offered at the affordable rent level. 5. Under occupation and succession Where we are entitled to do so, we reserve the right to refuse a claim for succession where the property will be significantly under-occupied. We define under-occupation as having one bedroom or more than is required using the bedroom standards in our lettings and allocations policy. Where succession will result in under-occupation we will offer the potential successor alternative accommodation which is better suited to their needs. We will refer to our statutory and contractual requirements when asking a successor to move to another property. 5.1 Under occupation and statutory succession secure tenancies A spouse or civil partner has the right to succeed to the tenancy whether or not they are under-occupying. The tenancy cannot be terminated on the grounds of under-occupation. However, where it is reasonable, we will ask successors who are family members, including cohabitees, to leave if they are under-occupying the property in accordance with Ground 16 of schedule 2 of the Housing Act 1985. Ground 16 cannot be used against a spouse or civil partner successor. We will take into account the age and circumstances of the successor, the length of time they have lived at the property, any financial support they gave to the deceased tenant, and any other social or personal needs. 5.2 Under occupation and statutory succession periodic assured tenancies Ground 9 of schedule 2 of the Housing Act 1988 enables a landlord to seek possession where suitable alternative accommodation will be available for the tenant when any order for possession takes effect. This means that in cases of under-occupation possession can be sought by offering a smaller property which is suitable to the tenant s needs. Succession Policy v1.3 July 2015 Page 7 of 30
5.3 Under occupation and statutory succession - fixed term assured shorthold tenancies In the case of 5 year fixed term assured shorthold tenancies, the successor will succeed to the remainder of the tenancy. At the end of the fixed term period the successor will be subject to the standard tenancy review process which will consider under-occupation. 5.4 Under occupation and contractual succession Depending on the terms of the tenancy, we may refuse to grant a contractual succession if the successor will be under-occupying the property. In this case, we will make one offer of suitable alternative accommodation. If they refuse the offer we will refuse to grant a new tenancy of the original property and seek possession, treating them as unauthorised occupants. We will accept payment for use and occupation rather than rent during this process. If the terms of the contractual succession rights do not allow us to refuse the succession where there is under-occupation then we will use Ground 9 in conjunction with an offer of suitable alternative accommodation if the tenant refuses an offer (see 4.2 above). 5.5 Under occupation and discretionary succession We will refuse to grant a discretionary succession if the successor will be under-occupying the property. We will make one offer of suitable alternative accommodation. If they refuse the offer we will refuse to grant a new tenancy of the original property and seek possession, treating them as unauthorised occupants. We will accept payment for use and occupation rather than rent during this process. 6. Adapted and special accommodation and succession Where we are permitted by law, we also reserve the right to refuse a claim for succession in the following circumstances: where the property has been adapted for special use which the potential successor does not need where the potential successor remains in a property which has been developed for a specific client group, for example, sheltered housing and they are not in that client group. 6.1 Statutory succession In the case of secure tenants, adapted and special accommodation does not give a specific ground for possession unless there is also under-occupation in which case we can use Ground 16 (see above). Otherwise, we will ask the successor to move voluntarily to more appropriate suitable alternative accommodation. In relation to periodic assured tenants, Ground 9 can be used by offering suitable alternative accommodation. In the case of assured shorthold fixed term tenancies, the successor will succeed to the remainder of the tenancy. At the end of the fixed term period the successor will be subject to the standard tenancy review process. Succession Policy v1.3 July 2015 Page 8 of 30
6.2 Contractual succession In the case of contractual succession the rights within the tenancy agreement may allow us to refuse the succession with or without an offer of suitable alternative accommodation. If not, Ground 9 can be used as for periodic assured tenants. 6.3 Discretionary succession We will not consider a discretionary succession in these cases unless the person is eligible for the specific service or has a need for the adaptations in the property. 7. Allocating suitable alternative accommodation Where we have committed to seeking suitable alternative accommodation for potential successors, we will follow our lettings and allocations policy and work with local authority partners to prioritise these cases. 8. Temporary housing Periodic assured shorthold tenants housed in temporary housing under homelessness arrangements with local authorities have statutory rights of succession to their spouse or partner as do other periodic weekly/monthly assured shorthold tenants. If a tenant dies we will notify the local authority promptly and ask them to reassess the eligibility of any remaining members of the household. If the local authority accepts it has a continuing duty to house a member of the household, that person will be granted a new periodic assured shorthold tenancy. Usually the person who is granted the new tenancy will be the successor (i.e. the spouse or partner of the deceased tenant). If they are not then the successor must sign a surrender form in order for the other member of the household to take up the new tenancy. If the local authority decides that it does not owe a housing duty to any of the members of the deceased tenant's household, we will serve a section 21 Notice Requiring Possession on any successor and possession proceedings will begin on expiry of the notice. If there is no successor we will serve a Notice to Quit at the property addressed to the personal representatives of the deceased tenant and follow the procedure for ending the tenancy on death (see below). 9. No claim for succession If we do not receive a claim for succession the tenancy does not come to an end but is vested in the deceased tenant s estate. We will follow our procedures for ending a tenancy on death, serve the appropriate notice(s) and notify the Public Trustees Office. Where there are occupiers who do not qualify as successors or who have had their application to succeed refused, we will explain that they do not have the right to succeed or continue to occupy the dwelling and ask them to leave. We will follow our procedures on ending a tenancy on death (see above) and unauthorised occupants and take possession action against the occupants. 9.1 Inheriting a tenancy An assured tenancy can be inherited on the death of the tenant, either through the rules of intestacy or under a will. The inheritor must occupy the property as their only or principal home and it will remain an assured tenancy. If the person who has inherited the tenancy does not have a right to succeed to the tenancy we may take legal action to repossess the Succession Policy v1.3 July 2015 Page 9 of 30
property using the mandatory Ground 7 for possession as set out in schedule 2 of the Housing Act 1988. 10. 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. 11. Related internal documents Lettings and allocations policy Tenancy policy Income collection - rent policy Rent setting policy Unauthorised occupants and squatters policy Ending a tenancy procedure 12. Legislation, regulation and guidance Legislation relating to succession is set out in the following Acts. For secure tenants, Section 87 of the Housing Act 1985. For periodic assured and periodic assured shorthold tenants, Section 17 of the Housing Act 1988 For assured shorthold fixed term tenancies, Localism Act 2011 All the above Acts were amended by the Civil Partnership Act 2004. That Act provides that same-sex couples who form a civil partnership have the same rights as those who are in a heterosexual marriage. Author: Alexandra Derham, Policy Manager Approval date: 07 July 2015 Approved by: Policy Review Group Policy owner: Director of Neighbourhoods Accountable Director: Director of Neighbourhoods Succession Policy v1.3 July 2015 Page 10 of 30
Mutual exchange Policy Summary: This policy sets out our approach to promoting and facilitating mutual exchanges between tenants living in general needs properties. Version: 1.0 Individual occupancy agreements outline a tenant s right to mutual exchange. This policy should be read in conjunction with the tenancy policy.. Effective from: 12 June 2017 Planned review date: 01 July 2018 Who to contact: Local Business Manager Contents 1. Purpose 12 2. Definitions 12 3. Promoting mutual exchanges 12 4. Eligible tenants 12 5. Types of exchange 12 6. Grounds for refusal 13 7. Affordability 13 8. Exchange without consent 13 9. Appeals 14 10. Information sharing 14 11. Background legislation 14 12. Other useful links 14 13. APPENDIX 1 Grounds for refusal 15
1. Purpose We provide an enhanced right to exchange through our tenancy agreements to enable our tenants to move home within Genesis stock or more widely between social housing providers. This policy outlines the types of exchanges that we facilitate and our commitment to ensuring that all exchanges are carried out promptly and in line with legislation. 2. Definitions Mutual exchange: refers to the process whereby tenants living in social housing swap homes. The exchange can take place between more than two tenants. 3. Promoting mutual exchanges We encourage tenants to register with services that facilitate mutual exchanges, including internet based services. We take reasonable steps to publicise the availability of any mutual exchange service and provide reasonable support in using the service to tenants who do not have access to the internet. 4. Eligible tenants The following tenants have the right to mutual exchange: Lifetime tenants Secure tenants have a statutory right to exchange Periodic assured non-shorthold ( assured ) tenants have a contractual right to exchange Fixed term tenants Assured shorthold fixed term tenants have a contractual right to exchange. 5. Types of exchange The type of mutual exchange that takes place varies according to the type of tenancy that the mutual exchange applicant and the exchange partner hold. The exchange will take place either by way of assignment or surrender and re-grant. 5.1 By way of assignment An assignment is where each tenant passes their tenancy onto their mutual exchange partner. By this process, no new tenancy is created. Assignments take place where: Both tenants have lifetime tenancies that started before 1 April 2012 Both tenants have fixed term tenancies. Each tenant takes on the remainder of the fixed term when they are assigned the tenancy. Secure tenants exchanging with an assured tenant are advised to seek independent legal advice about the loss of any statutory rights as a result of the exchange. 5.2 By way of surrender and re-grant The Localism Act 2011 introduced rights for lifetime tenants and fixed term tenants to swap homes with each other whilst retaining their security of tenure. By this process, each tenant surrenders their original tenancy and is granted a new one of the same type. Some tenants are excluded from these rights: Lifetime tenants whose tenancy started after 1 April 2012 Fixed term tenants whose property is let at an affordable rent Mutual exchange policy v1.0 June 2017 Page 12
We process mutual exchanges by way of surrender of re-grant for a tenant with a lifetime tenancy granted after 1 April 2012, but in this case we will grant the lifetime tenant a fixed term tenancy. We explain the terms and conditions of the tenancy that the applicant takes on before the exchange, but also advise tenants to seek legal advice about any loss or gain of tenancy rights. 6. Grounds for refusal We approve or refuse all mutual exchanges within 42 days of receiving an application from a Genesis tenant. The grounds for refusing an exchange vary according to the tenancy types of mutual exchange applicants Exchanges between lifetime tenants may be refused on grounds listed in Schedule 3 of the Housing Act, while the grounds for refusal for exchanges involving a fixed term tenant are listed in Schedule 14 of the Localism Act. The grounds for refusal can be found in appendix 1. 6.1 Property size We deem a property as being too large if the incoming tenant would under-occupy the property by more than one bedroom according the size criteria set out in our lettings and allocations policy, where we allow for one bedroom for each person (single adult) or couple living as a household and an extra bedroom for: any other person aged 16 years or over two children of the same gender under the age of 16 two children who are under the age of 10 regardless of gender a child or adult who requires overnight care from a non-resident carer a child or adult who is unable to share a bedroom because of disability a foster child where the resident is an approved foster carer, whether they have a child placed with them or not (as long as they have been approved or had a placement in the last 12 months). 6.2 Conditions for consent Where a ground for refusal does not apply, we may withhold consent to an exchange until all obligations under the tenancy have been met, including: The property is in a good condition All rent and service charge has been paid 7. Affordability All applicants are required to undergo an affordability assessment to ensure that the rent is affordable. We aim to meet the objective that no household should pay in excess of 40% of their net household income on housing costs (rent including other charges owed to Genesis). We strongly discourage an exchange where the incoming tenant will not be able to afford the property. We emphasise to the tenant the risk they face of losing their tenancy by exchanging into an unaffordable property. 8. Exchange without consent In circumstances where tenants have swapped properties without our formal consent, both tenants will be in the serious position of: Having no legal interest in the tenancy at the property they have moved to Being liable for the rent and other obligations of their original tenancy Mutual exchange policy v1.0 June 2017 Page 13
Losing their home and security of tenure as they are no longer occupying the property as their main or principle home 9. Appeals A tenant can appeal a decision if they are dissatisfied with the way their application has been handled. Appeals are considered by an officer not involved in the original decision. If dissatisfied with the appeal decision, customers are advised to follow our complaints process. 10. Information sharing Information regarding our customers is sensitive and we maintain confidentiality in line with our confidentiality and data protection policies. However, in order for the exchange to take place, we are required to share information about the applicant s tenancy history with the exchange partner s landlord or staff where both applicants are Genesis tenants. We make applicants aware that information will be shared when they apply to exchange. 11. Background legislation Housing Act 1985 Localism act 2011 12. Other useful links Tenancy policy Income collection Rent policy Anti-social behaviour policy Succession policy Lettings and allocations policy Author: Iona McHugh, Policy Officer Approval date: 06 June 2017 Approved by: Policy owner: Accountable Director: PRG Head of Region Customer Experience Director Mutual exchange policy v1.0 June 2017 Page 14
13. APPENDIX 1 Grounds for refusal Schedule 3 of the Housing Act 1985 - - Schedule 14 of the Localism Act 2011 Ground 1 Ground 2 Grounds for refusing consent to exchange When any rent lawfully due from a tenant under one of the existing tenancies has not been paid. When an obligation under one of the existing tenancies has been broken or not performed. Ground 1 Ground 3 A court order for possession or a suspended possession order has been made for either property. Ground 2 Ground 4 & 5 The landlord has served a notice of seeking possession and the notice is still in force, or possession proceedings have commenced. Ground 3 Ground 7 The property is substantially larger than is reasonably needed by the proposed assignee. Ground 4 Ground 8 The property is not reasonably suitable to the needs of the proposed assignee and their household. Ground 5 Ground 9 The property is part of or close to a building that is held for non-housing purposes, or it is situated in a cemetery and was let in connection with employment with the landlord or with a local authority, a new town corporation, housing action trust, an urban development corporation, or the governors of a grant-aided school. Ground 6 Ground 10 The landlord is a charity and the proposed assignee s occupation of the property would conflict with the objects of the charity. Ground 7 Ground 11 The property has been substantially adapted for occupation by a physically disabled person, and if the assignment went ahead a physically disabled person would not be living there. Ground 8 Ground 12 The landlord lets properties to people in difficult circumstances (other than merely financial circumstances) and the proposed assignee would not fulfil this criteria. Ground 9 Ground 13 The property is let to people with special needs and there is a social service or special facility nearby to the properties to assist people with Mutual exchange policy v1.0 June 2017 Page 15
those special needs, and if the assignment was to go ahead no person with those special needs would be living there. Ground 10 Ground 14 The dwelling is the subject of a management agreement where the manager is a housing association of which at least half the members are tenants subject to the agreement, and at least half of the tenants of the dwellings are members of the association, and also that the proposed assignee is not such a member nor is willing to become one. Additional ground (Housing Act 2004) Ground 6 An injunction order under Section 153 Housing Act 1996 or an anti-social behaviour order or a Demotion Order or a possession order under Ground 2 for secure tenancies or Ground 14 for assured tenancies is in force or an application for one of those is pending either against the tenant, the proposed assignee or a person who resides with either of them. Mutual exchange policy v1.0 June 2017 Page 16
Tenancy Policy Summary: This policy sets out our approach to the type of tenancies we will grant and in which circumstances. It also includes details about which grounds for possession we will use. Version: 3.1 This policy applies to customers living in homes owned and managed by Genesis Housing Association. We will expect managing agents, managing properties that we own, to use our occupancy agreements and follow our practices as outlined in this policy. Effective from: 05 September 2017 Planned review date: 01 May 2018 Who to contact: Business Manager for your area.
Contents 1. Purpose... 19 2. Definitions... 19 3. Security of tenure... 19 4. Types of tenancies used at Genesis... 19 5. Tenancies by business type... 20 6. Housing minors - granting agreement for tenancy... 23 7. Ending a tenancy... 23 8. Tenancy fraud... 24 9. Governance... 25 10. Publicising the policy and raising awareness... 25 11. Disputes and appeals... 25 12. Diversity and inclusion... 25 13. Related internal documents... 25 14. Legislation, regulation and guidance... 25 15. Further reading... 26 16. Appendix 1 - Tenancy Matrix... 27 17. Appendix 2 - Grounds for possession... 28 Tenancy policy v3.1 September 2017 Page 18
13. Purpose This policy sets out our commitment to offer and issue tenancies which are compatible with the purpose of the accommodation type, the needs of individual households, the sustainability of the community and the efficient use of our housing stock. By publishing this policy, Genesis aims to ensure that: we meet our statutory and regulatory obligations we manage our accommodations with the correct occupancy agreements staff are aware of the grounds for possession which we may rely on, and our approach to using the mandatory grounds tenancies are granted consistently in a transparent and fair way our approach is sufficiently flexible to support the objectives of our local authority partners tenancy strategies our approach to granting tenancies to minors (under 18 years) is consistent, transparent and fair 14. Definitions Tenancy: A contract by which the owner (the Landlord) of real property, grants exclusive possession of that real property to another person (tenant), in exchange for the tenant's periodic payment of some sum of money (rent). Licence: an agreement which confers limited rights of occupation. It is issued when the customer will not have exclusive possession, for example in a hostel, or when a high level of care or supervision is required from staff by the customer. The distinction between a tenancy and a licence is that a tenancy represents a grant of interest in a land whereas a licence only grants permission to stay. We do not have the discretion to decide whether or not to grant a tenancy or a licence; if the conditions of a tenancy are fulfilled the customer will be recognised as a tenant in court. 1. Hostel: a building in which residential accommodation is provided other than in separate and self-contained sets of premises, and either board or facilities for the preparation of food is provided, adequate to the needs of the persons residing in the accommodation; 15. Security of tenure Genesis tenants enjoy security of tenure and the right to live peacefully in their home without our interruption or interference. There will be occasions when we will need to gain access to our properties, which are stated in our tenancy agreements. The no access policy sets out our approach to gaining access in both emergency and non-emergency situations in which we have not been given prior consent. Individual occupancy agreements will detail a customer s rights and responsibilities in relation to providing access to the property, however where access is denied we take action for breach of the agreement. 16. Types of tenancies used at Genesis The following tenancies are currently issued by Genesis for new build lettings and relets across all service types. A tenancy type matrix for the most common tenancies and where they are offered is included as appendix 1. 1 An important case in land law where this was further defined is Street v Mountford:, see Street vs Mountford 1985 for more details Tenancy policy v3.1 September 2017 Page 19
(Periodic) Assured tenancies: these tenancies are used where there is a clear intention to offer a home for life. This is also known as an assured non-shorthold tenancy, or an assured tenancy. They are usually issued as weekly tenancies, but can also be monthly in some business areas this is why they are called periodic. These tenancies are sometimes referred to as lifetime tenancies, as providing the tenant does not breach the tenancy conditions, they will usually be able to stay in their home for the rest of their life. (Periodic) Assured shorthold tenancies: They are issued where there is not a clear intention to offer a home for life, or where there is a need to re-set rent levels between tenancies. Like assured tenancies, they are usually issued as weekly tenancies, but can also be monthly in some business areas this is why they are called periodic. They have less statutory rights than assured tenancies and can be ended more easily. Fixed term tenancies: an assured short-hold tenancy for a fixed period of time. Fixed term tenancies have less statutory rights than periodic assured tenancies, but some might have additional rights added as a contractual agreement. Fixed term tenancies clearly state the intended length of the tenancy. At the end of the fixed term, we determine whether to issue a new tenancy or terminate the tenancy. Licences: we use licences in some supported housing and temporary housing schemes, where there is a genuine management need to access the properties at any time this may be due to the support and care needs of the customers, or in case of hostel accommodation, if there is a requirement to move customers to a different room because of increased need. Secure tenancies: these are regulated by the Housing Act 1985, and are sometimes referred to as lifetime tenancies. We do not issue secure tenancies for new tenants; however, anyone who has a tenancy that was granted before 1 April 1989 is likely to be a secure tenant. The tenancy will not usually be terminated unless there are serious tenancy breaches. Agreement for Tenancy: A person under 18 years old cannot hold a legal interest in land, and therefore cannot hold a tenancy, so an Agreement for Tenancy is provided until they turn 18 years old. An Agreement for Tenancy assumes that minors have the capacity to contract for necessaries. Items such as accommodation, food and clothing are classed as necessaries. 17. Tenancies by business type Genesis operates with a multi-tenure approach to tenancy management, and staff are expected to be aware of the implication of different tenancy types across the business. The following section organises tenancies by business type to help highlight the potential differences for similar tenancies where used across several business areas. 17.1 General Needs Assured A periodic assured tenancy is issued to tenants in general needs when one or more of the following circumstances apply: an existing Genesis periodic assured tenant, whose tenancy was granted before 1 April 2012, transfers to another Genesis property an applicant who has a periodic assured (granted before 1 April 2012) from a Local Authority or Registered Provider moves to a Genesis property (unless the property is let at an Affordable Rent) an applicant is over the age of 60 Tenancy policy v3.1 September 2017 Page 20
an applicant has a disability and is in receipt of Personal Independence Payments with an award of five years or longer or is under Enhanced Care Programme Approach there is a restriction on tenure type imposed by existing nomination agreements, planning consents, title deed or loan covenant Fixed Term Assured Shorthold In most circumstances, we grant a five year assured shorthold fixed term tenancy for general needs new build property lettings and all relets. For these tenancies, we extend the following rights contractually through the tenancy agreement: the right to transfer the right to assign the right to repair the right to make improvements or be compensated for those improvements the right to take in lodgers Following the introduction of Welfare Reform and Work Act 2016, we will only grant a two year assured shorthold fixed term tenancy where the tenant(s) are aged Under 35 and have no children In other exceptional circumstances we may issue a two year fixed term tenancy, for example where someone subject to immigration control does not have indefinite leave to remain and other circumstances which may arise from time to time. Licence We issue licence agreements when we require a tenant to move to a temporary decant property in order to carry out repair or improvement works. Secure A secure tenancy is only issued to tenants in general needs if they were already a secure tenant with us immediately before they enter into the new contract. This is in accordance with section 35(4) (d) of the Housing Act 1988 and we do not have the discretion to grant another form of tenancy. 17.2 Supported Housing All tenancy agreements in Supported Housing are issued to reflect any support and care provisions that form part of the accommodation. Assured A periodic assured tenancy is issued to tenants in supported housing where we intend to provide a home for life, and when one or more of the following circumstances apply: an existing Genesis periodic assured tenant, whose tenancy was granted before 1 April 2012, transfers to another Genesis property an applicant who has a periodic assured (granted before 1 April 2012) from a Local Authority or Registered Provider moves to a Genesis property (unless the property is let at an Affordable Rent) an applicant is over the age of 60 an applicant has a disability and is in receipt of Disability Living Allowance with an award of five years or longer or is under Enhanced Care Programme Approach there is a restriction on tenure type imposed by existing nomination agreements, planning consents, deed title or loan covenant Tenancy policy v3.1 September 2017 Page 21
Assured Shorthold In Care and Support we issue assured shorthold tenancies in circumstances where a tenancy exists, but the accommodation offer is generally for a relatively short length of time (commonly up to 2 years, although it could be longer). This includes all self-contained accommodation, except where there is a clear demonstrable need for staff to have unrestricted access to the customer s property in order to provide care and support services to the customer. Licence We issue licence agreements to customers who do not have exclusive possession of any part of the premises and only in circumstances where a tenancy cannot be offered. Circumstances include: We require customers to be mobile and able to move between rooms in the premises to enable us to manage the premises efficiently, for example in a hostel; or We require unrestricted access to the accommodation so that we can provide care and support services or check on customers wellbeing and there is a genuine management requirement for this; or We require a tenant to move to a temporary decant property in order to carry out repair or improvement works Secure A secure tenancy is only issued to tenants in supported housing if they were already a secure tenant with us immediately before they enter into the new contract. This is in accordance with section 35(4) (d) of the Housing Act 1988 and we do not have the discretion to grant another form of tenancy. 17.3 Temporary Housing Assured Shorthold We grant periodic assured shorthold tenancies to most of our temporary housing tenants, excluding those in hostel accommodation (see below). Licence We issue licence agreements to customers in temporary housing who do not have exclusive possession of any part of the premises and only in circumstances where a tenancy cannot be offered. Circumstances include if we require customers to be mobile and able to move between rooms in the premises to enable us to manage the premises efficiently, for example in a hostel Local Authority Non Secure Agreement Within Temporary Housing we have a small number of schemes which require us to use an agreement prescribed by the Local Authority. These are schemes where we are acting as managing agents and the local authority retain responsibility for income collection. These schemes are commonly referred to as PSR or PSL (Private Sector Leasing) 17.4 Intermediate Market Rent (IMR) Fixed Term Assured Shorthold We grant one year fixed term assured shorthold tenancies for IMR property lettings and all relets in properties owned by Genesis. Where we act as managing agents for another landlord, we sometimes offer two or three year fixed term tenancies, depending on the management agreement. Tenancy policy v3.1 September 2017 Page 22
17.5 Market Rent Fixed Term Assured Shorthold We grant one to five year fixed term assured shorthold tenancies for Market Rent property lettings and all relets and renewals in properties owned by Genesis. 17.6 Key Places / Keyworkers We have clear eligibility criteria for our keyworker accommodation, which in most cases are only issued to NHS staff. Assured Shorthold We grant periodic assured shorthold tenancies in all our keyworker schemes. 18. Housing minors - granting agreement for tenancy We issue an Agreement for Tenancy as a contractual relationship, which the minor holds until they are 18 years of age. This agreement reflects the underlying intention of the Tenancy Agreement, whilst acknowledging the legal status of the minor. The minor will sign and date both the Agreement for Tenancy and Tenancy agreement at the same time and we will consider this to be the tenancy commencement date. Where possible, we will seek a Guarantor and ask them to sign a Form of Guarantee. The Guarantor may be an individual or an agency such as a local authority or Social Services department. We do not currently accept nominations of under 18s within our temporary housing stock. 18.1 Agreements for Tenancy and rent arrears We recover any unpaid rent (provided it is not excessive) through the courts in the normal manner and will urge the minor to appoint a litigation friend. 18.2 Succession for minors A minor may succeed to a tenancy either by statutory succession, or the parent s will, through intestacy. Succession to a tenancy takes place even if the minor is under 18 years old. In these cases we will provide the minor with an Agreement for Tenancy until they turn 18 years old, as described above. We will liaise with family members and social services who may need to carry out a child in need assessment to ensure the minor will be cared for. 19. Ending a tenancy We recognise that a tenancy can only be brought to an end in specific ways and have clear procedures for terminating a tenancy. We see eviction as the last resort and only seek possession where it is proportionate to the case, and when we have exhausted non-enforcement measures as set out in the relevant policies and procedures. We rely on the grounds for possession available through legislation: for secure tenancies - Housing Act 1985 (schedule 2) for both periodic assured and assured shorthold tenancies - Housing Act 1988 Tenancy policy v3.1 September 2017 Page 23
(Both as amended by the Housing Act 1996 and the Anti-social Behaviour, Crime and Policing Act 2014) Some of our tenancy agreements state which ground we will use for possession and thereby prohibit us seeking possession on some grounds. A list of grounds for possession for secure, assured and assured shorthold tenants is attached as an appendix. 19.1 Accelerated possession Where we decide to end a periodic assured shorthold tenancy we use the accelerated possession process and serve a Notice Requiring Possession complying with s.21 of Housing Act 1988. Our policies and procedures concerning tenancy management provide details about when we will serve a s.21 notice to end an assured shorthold tenancy. Where we decide to end an assured shorthold fixed term tenancy we can only use the accelerated possession process and serve a Notice Requiring Possession complying with s.21 of Housing Act 1988 at the end of the fixed term. If there are rent arrears on the account, Genesis will always consider recovering these by serving a separate Notice Requiring Possession complying with s.8 of the Housing Act 1988. 19.2 Reviewing assured shorthold fixed term tenancies - general needs When a general needs fixed term assured shorthold tenancy is due to end, and if there has been no concerns for the management of the tenancy during the original term, we will offer a new fixed term tenancy with the same length and conditions as the original tenancy as standard. A full review of the tenancy takes place 12 months before the fixed period is due to end. The review will take into account the following criteria: Under occupation Housing need and suitability of property Tenancy history Where a decision is taken not to issue a new tenancy due to breach of the tenancy agreement, consideration will be given to what support has been offered to the customer and other household members. This may include referrals to the Financial Inclusion team and/or tenancy / floating support. Where such support has been offered and not proved effective, consideration is given to any identified support needs and whether a referral to supported accommodation may be appropriate. 20. Tenancy fraud The term tenancy fraud is used to cover various types of tenancy misuse including; Illegal subletting where the customer sublets the whole of the property Unauthorised succession where someone misrepresents their circumstances in order to qualify and succeed a tenancy Key selling where the customer leaves the property and passes on the keys for a oneoff lump sum payment. Genesis ensures that all customers signed up in accordance with this policy and associated procedures have been correctly monitored in terms of fraudulent behaviour. Genesis takes all instances of reported tenancy fraud very seriously and investigates all claims made. Tenancy policy v3.1 September 2017 Page 24
21. Governance Tenancy agreements come under the ownership of the Communities Directorate. Any changes to existing agreements or applications for new agreements or tenure types need to be requested, agreed and signed off with the relevant Director (Neighbourhoods or Care & Support) and Head of Policy. 22. Publicising the policy and raising awareness Our customer handbooks give details about the tenancy agreement together with an explanation of the grounds for possession. We provide regular training for our staff on tenancy management issues to enable them to deal with enquiries and ensure they understand the relevant legislation. 23. Disputes and appeals A customer has a right to complain if they are dissatisfied with the way their application, selection, offer or allocation has been handled and will be advised to follow our Complaints Procedure. Customers have recourse to the Housing Ombudsman if a matter is not suitably resolved. Customers may also seek independent advice and assistance from a local Citizen s Advice Bureau, law centre or solicitor. Customers offered an assured shorthold fixed term tenancy have the right to appeal the length and type of tenancy granted to them on the grounds that it is not compliant with our policy or if they believe our actions have been unlawful. Appeals should be made in writing within 24 hours of viewing the property and will be considered by the Neighbourhoods Director. Customers also have the right to appeal a decision not to issue a new assured shorthold fixed term tenancy on the grounds that it is not compliant with our policy or if they believe our actions have been unlawful. Appeals should be made in writing within 14 days of the minded to notice being served and the case will be reviewed by the Neighbourhoods Director. 24. 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. 25. Related internal documents Rent payment policy Succession policy Anti-social behaviour policy No access policy Ending and review of fixed term tenancies procedure 26. Legislation, regulation and guidance The most important Acts that currently govern registered provider tenancies are: Rent Act 1977 - refers to private sector tenancies before 15 January 1989 Housing Act 1985 - refers to housing association tenancies before 15 January 1989 and public sector tenancies Tenancy policy v3.1 September 2017 Page 25
Housing Act 1988 (private sector tenancies and housing association tenancies on or after 15 January 1989) Protection from Eviction Act 1977 (giving protection against eviction without court proceedings to most tenants and licensees) Housing Act 1996 (introductory tenancies) Anti-social Behaviour Act 2003 (possession grounds - amended Housing Acts 1985, 1988, 1996) Localism Act 2011 (flexible tenures). Anti-Social Behaviour, Crime and Policing Act 2014 (further amended Housing Acts 1985, 1988, added absolute grounds for possession for ASB) Welfare Reform and Work Act 2016 This policy complies with the Housing and Communities Agency s Tenancy Standard and the Affordable Rent Framework. 27. Further reading. Street vs Mountford 1985 ( land law case that defined the essential characteristics of a tenancy as compared to a license) Author: Erik Nolander Approval date: 07 July 2015 Approved by: Policy owner: Accountable Director: Policy Review Group Neighbourhoods Director Neighbourhoods Director Tenancy policy v3.1 September 2017 Page 26
28. Appendix 1 - Tenancy Matrix Social Commercial Tenancy Types General Needs Temporary Supported Housing IMR Market Key Places/ Keyworkers Assured Shorthold Fixed Term AST FT AST YES YES YES YES YES YES YES Assured (nonshorthold) YES YES Secure YES YES Licence YES YES