Lunch and Learn 2013 – A Year of Changes CIH June 2013 Gail Sykes, Partner Tel: 01733 888794 Email: gail.sykes@buckles-law.co.uk www.buckles-law.co.uk
Succession and Mutual Exchange following the Localism Act
Mutual exchanges • Traditionally achieved by reciprocal deeds of assignment • S158 Localism Act provides for surrender and re-grant of tenancies where one pre 1 April 2012 secure or assured tenant is exchanging with a fixed term tenant • Exceptions include pre 1 April 2012 secure or assured tenants exchanging with those fixed term tenants occupying at an affordable or intermediate rent
Mutual exchanges Schedule 14 of the Localism Act 2011 provides grounds for refusal of surrender and re-grant these include: • Rent arrears • Breach of tenancy • A possession order obtained or proceedings begun • Under-occupation
Mutual exchanges May result in: • Loss of security of tenure • Loss of social rent • Reduced succession rights Or (for those playing a tactical game) • Greater security of tenure or a larger fixed term • Better succession rights • Social rent
Mutual exchanges How would you proceed with? • An exchange between one assured tenant of a housing association (tenancy commenced 5 May 2012) and a secure tenant (tenancy commenced 3 June 2002) • A secure tenant (tenancy commenced 3 December 2006) and a fixed term tenant at an affordable rent (tenancy commenced 10 October 2012) • An assured tenant (tenancy commenced 3 March 2003) and a flexible tenant (tenancy commenced 01 February 2013) • A secure tenant (tenancy commenced 7 November 2012) and a flexible tenant (tenancy commenced 4 September 2012)
Former tenancy arrears • Making payment of former arrears a condition of a new tenancy • In theory enforceable as Ground 1 (secure)/Ground 12 (assured) breach of term of tenancy • Concerns over how courts will actually deal with this when lenient with tenant arrears with suspensions and chances given anyway!
Succession Local authority – secure tenancy Pre 1 April 2012 agreements • Succession to spouse/civil partner etc. living with the tenant at the date of death • Succession to wide group of family members defined in s113 Housing Act 1985 (provided they occupied as principal or only home for at least 12 months prior to the tenant’s death)
Succession Post 1 April 2012 Local Authority agreements • Succession to spouse/civil partner etc. unchanged • Succession to family members only if provided in the tenancy agreement
Succession Housing Associations – assured tenancy Pre 1 April 2012 agreements • Succession to spouse/civil partner etc. living with tenant at the date of death • Contractual succession to any wider group defined in the agreement and in occupation as principal or only home at least 12 months prior to the tenants’ death (tenancy does not automatically vest in successor)
Succession Housing Association-Post 1 April 2012 Agreements • Succession to spouse/civil partner etc. unchanged • Where the agreement provides for a wider group of successors the tenancy will automatically vest – no need for a new agreement)
Cases where succession is contested • The burden of proof is on the would-be successor Key cases: • Islington London Borough Council v Freeman [2009] • City of Westminster v Peart [1999] • Southern Housing Group v Nutting [2005]
Succession and under- occupancy Ground 16/Ground 15A • The court must take into account the age of the successor, the period during which they were in occupation and any financial support provided to the tenant • The date the court will consider under- occupation/suitable alternative accommodation is the date of the hearing • The Newport v Charles [2008] trap has been remedied
The Draft Anti- Social Behaviour Crime and Policing Bill
The Draft Anti-Social Behaviour Crime and Policing Bill • Published 13 December 2012 • Has been considered by the Home Affairs Select Committee – which reported on 15 February 2013 • Further amendments likely before consideration by Parliament 2013/2014 • Commencement 2015?
The Draft Anti-Social Behaviour Crime and Policing Bill - mandatory possession • NOSP 28 days notice to be served within a year if conviction/breach • Five conditions for possession • Review procedure will be required – (proportionality challenges likely)
The Draft Anti-Social Behaviour Crime and Policing Bill - mandatory possession 1. Conviction of serious offence 2. Breach of injunction 3. Breach of criminal behaviour order 4. Closure order 5. Breach of noise abatement notice
The Draft Anti-Social Behaviour Crime and Policing Bill - mandatory possession • Inter-agency communication – convictions • Injunctions – breach must have been proved to the court • More incentive to defend committal proceedings for breach of injunction or to deny serious offences • Judges likely to scrutinise injunction terms very carefully • Undertakings less attractive to housing providers but more attractive to Judges
The Draft Anti-Social Behaviour Bill Crime and Policing Bill- new discretionary ground for possession • The tenant, or a person residing in the dwellinghouse (in England) has been convicted of an offence which took place in a riot in the UK • A discretionary ground so that the judicial approach to possession will be interesting
Injunctions to Prevent Nuisance and Annoyance (IPNA’s) The test: • Conduct capable of causing a nuisance and annoyance; and • It is just and equitable to grant the injunction • Without notice injunctions, powers of arrest and exclusion orders still available
Injunctions to Prevent Nuisance and Annoyance (IPNA’s) • Available against those over 10 (Youth Court jurisdiction) • Available to a wider number of agencies (Police, Environmental Health) • Scope may be limited with a proportionality test or the need to show that conduct was intentional or reckless • An attempt to define housing management functions
Case Law Update
Recent ASB Case Law Southend Borough Council v Armour [2012] • Termination of introductory tenancy • No further ASB between service of notice and trial • Should the period of good behaviour be taken into account? • Delays (at least in part caused by the defendant’s legal team)
Recent ASB Case Law Stafford v Camden LBC [2012] • Considered whether LA must serve a fresh section 128 notice when previous notice relied upon to issue proceedings • Review panel suggested alternative to possession • CA held landlord must give unequivocal confirmation of original decision • Be aware of danger of giving "second chance"
Recent ASB Case Law Wandsworth LBC v Maggott [2013] • ASB not found to be “in the locality ” of Mr Maggott’s home • The landlord could not rely upon tenants’ ASB covenants which were too wide • If the Judge was wrong – it was not reasonable to make an order anyway!
Court’s discretion to suspend possession order… Birmingham City Council v Ashton [2012] CA • Sentenced for affray and possession of weapon – abusive, threatening and brandishing samurai sword • Trial judge suspended possession order on terms • Appealed to CA • CA held onus on T to provide cogent evidence that ASB would not recur
Inconsistent evidence at trial Brent LBC v Tudor [2013] EWCA Civ 157 • Claim for possession under Ground 16 • Inconsistent evidence from witnesses • At first instance possession claim dismissed • L appealed to CA on basis judgment was not clearly structured • CA said no duty on judge to deal with every argument put forward by Counsel
Breach of Article 8 in denying succession… Affinity Sutton v Cooper [2012] • Tenancy agreement required written notice of claim to succeed from would-be successor within 6 months of death • Landlord aware of son wanting to succeed but did not request written notice. After 6 months issued NTQ and possession proceedings • Claim dismissed – waived right to insist on written notice
More Nuisance Behaviour! Fareham Borough Council v Miller [March 2013] • Non-secure tenancy • Service of notice to quit followed by a decision to give Mr Miller “another chance” • Continued ASB • Notice to quit had not been waived and Article 8 ECHR not engaged
“Tenant Improvements” Hannon v Hillingdon Homes [2012] • Defective Premises Act 1972 claim by injured sub-contractor • The responsibility for a barrister removed by the tenants • Constructive notice!
Squatters! • New offence from 1 September 2012 under LASPOA 2012 • A person is in a residential building as a squatter and entered it as such • Person knows or ought to have know they were trespassing • The person is living in the building or intends to live there for a period • For the majority of unauthorised occupiers – no change!
Any questions? ?
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