A housing management inbox Gail Sykes Partner and Head of Social Housing Buckles Solicitors LLP
The non-successor • Entitlement to succeed? • One succession only, death of joint tenant counts as a succession • Secure and assured tenancy agreements pre and post 1 April 2012 • Quality and length of occupation – the burden is with the would-be successor • Automatic vesting v contractual rights • No succession? – serve NTQ on Personal Representatives of the late tenant and Public Trustee • Issue claim against Personal Representatives and the non-successor occupier (proportionality as a minimum comply with Part 3 of the Protocol) • Follow policy to avoid challenges • Post Housing and Planning Act – a “lesser successor” for LAs
Non-successors: recent case law Haringey LBC v Simawi [2018] • In 2001 Mr Samawi’s mother succeeded to a secure tenancy which had originally been granted in the sole name of her husband/Mr Simawi’s father • Mr Samawi’s mother died in 2013 – he applied to have the tenancy transferred to him stating that he had lived there for over 10 years • As there had already been a succession the Local Authority issued possession proceedings • Mr Samawi defended the proceedings claiming: • Haringey had failed to follow its own policy on non-statutory successions • The prohibition on second successions was discriminatory as someone whose parents had died – had his parents divorced and an order been made under the Matrimonial Causes Act 1973 or the Family Proceedings Act 1984, he would have been entitled to succeed
Haringey LBC v Simawi [2018] • Mr Simawi’s defence succeeded in so far as the Court found that the Local Authority had not followed its own policy • A hearing is to take place in relation to the second limb of the defence
Pavey v Hackney LBC [2017] • Case of non-succession • Service of NTQ on the Personal Representatives of the deceased and a copy of it to the Public Trustee required • Hackney served NTQ on PRs and then 17 months later on the Public Trustee, before issuing possession proceedings • Hackney relied on a saving clause in the NTQ in relation to the expiry date of the notice – the DJ found that the saving clause was triggered at the point of service on the public trustee • The tenancy terminated 28 days after service on the Public Trustee • Mr Pavey appealed
Pavey v Hackney LBC [2017] • Jan Luba sitting as a Circuit Judge on appeal (decision not binding but persuasive) • The Public Trustee was notional tenant of the property • The notice was void for uncertainty as the dates for termination of the tenancy differed in relation to that served on the PR’s and that served on the Public Trustee
A possession claim Considerations pre-action • Does the tenant have capacity in Court? • Is possession sought on mandatory grounds? Consider Possession Claim Protocol and review procedures. Does policy/the tenancy allow for use of mandatory grounds? • Contractual notice provisions • Is there a robust impact assessment in place – s149 Public Sector Equality Duty and Akerman-Livingstone v Aster Communities Ltd [2015] • Have all relevant policies and procedures been followed? If not, can the departure from them be justified?
Possession claim case law Ahern v Southern Housing Group Ltd [2017] • Mr Ahern occupied under a starter tenancy which had been extended as a result of serious ASB • He was an alcoholic • The ASB continued after the starter tenancy had been extended and Southern served a s21 notice • The district judge found that the s21 had been correctly served and made a possession order, although at the time, Mr Ahern had been on police bail with a condition not to return to his flat so that he could not be contacted • Mr Ahern appealed claiming that Southern had failed to follow their own policy in identifying his support needs and in relation to his vulnerability
Ahern v Southern Housing Group Ltd [2017] The Court of Appeal upheld the possession order: • Both parties had agreed that Southern was obliged to follow its own policies unless it could show a good reason not to • Southern had signposted Mr Ahern to access an alcohol treatment programme they were aware that this was not working and that he continued to drink. They were aware that mental health services were involved • The ASB was serious and included threats to kill, harassment and homophobic comments • Southern had considered the impact of a possession order on Mr Ahern • The landlord could not be obliged to continue to signpost to support where the tenant could not be traced • Policies need not be adhered to, word for word, and the approach should be purposive and pragmatic
Harris v Hounslow LBC [2017] • Termination of a secure tenancy under mandatory ASB grounds following the making of a closure order • The tenant’s solicitors requested an extension of time to request a review under s85ZA Housing Act 1985 which gives the tenant 7 days to request a review in writing • Hounslow did not respond to the request, but issued proceedings – before trial they did conduct a review but upheld the decision to seek eviction • Mr Harris appealed • Court of appeal found that the time for seeking a review was enshrined in s85ZA the authority had no power to extend it and no obligation to undertake a review if no request in writing within the 7 days had been made
The hoarder • Disability issues • Injunction v possession proceedings • The objective test – The Clutter Rating Index • “A picture speaks louder than words” • Fire safety • Suspended possession orders, injunction orders and enforceability
The hoarder: case study #1 • Elderly couple with diagnosed physical health issues – bungalow hoarded to 8/9 on Clutter Rating Scale and exits blocked • Fire service report obtained regarding fire risk • Interventions and offers of assistance logged and failed • Injunction obtained initially – breached, but enabled landlord to seek possession as a last resort • NOSP detailed all breaches and the condition of the property with reference to photos attached and Clutter Rating Scale – as did the claim form • Suspended possession order agreed prior to trial to include weekly access and improvements with reference to the Clutter Rating Scale
The hoarder: case study #2 • Elderly man in block of flats • Property hoarded to 9 on Clutter Rating Scale – electric cables daisy chained over combustible clutter • Tenant aggressive and uncooperative • Possession sought without trying injunction first due to fire risk to others and evidence that the tenant would not comply with an injunction • Outright possession obtained – Court found that the tenant was unlikely to comply with a suspended order and was unmanageable
The housing fraudster • Grounds 5 HA1985 and 17 HA1988 • False statement made knowingly or recklessly • By the tenant or someone at their instigation • The landlord was induced to grant the tenancy • Sub-letting • The thorny problem of evidence • Loss of security of tenure and breach of tenancy • s6 Social Housing Fraud Act 2013 regarding assured tenants
The housing fraudster: case study • Four sub-tenants found in a 1 bed flat during a routine check of the property • Housing officer obtained a written/signed statement and photographed the tenancy agreement at that time • Tenant (apparently wrongfully) evicted the sub-tenants as soon as a NOSP and NTQ served and moved back in – denied sub- letting • Outright possession order obtained – s6 SHFA pleaded and evidence of sub-let compelling
Terminating an AST using s21 • Pre-notice requirements under Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 – gas certificate and EPC certificate to be served before occupation/tenancy commencement and keep a record • Proportionality issues – impact assessment and Part 3 Possession claims protocol as a minimum • 2 clear months notice – allow for service • Watch for deposits! Intermediate rent etc.
Terminating an AST using s21: recent case law • Caridon Property Ltd v Monty Shooltz • Jan Luba QC sitting as a circuit judge in an appeal from the decision of a DJ to grant possession under s21 (not binding but persuasive) • Gas safety certificate not served before the tenancy started but served before the s21 notice • Found on appeal that a failure to serve the certificate pre-tenancy could not be remedied – the landlord could not rely on s21 • Defences received now reflect this
Questions ?
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