Get documents about "Renting Homes 1 Status and Security
Document Sample
Renting Homes
1: Status and Security
A SUMMARY
Law Commission
Consultation Paper No 162
The Law Commission was set up by section 1 of the Law Commissions Act 1965 for
the purpose of promoting the reform of the law.
The Law Commissioners are:
The Right Honourable Lord Justice Carnwath CVO, Chairman
Professor Hugh Beale, QC
Mr Stuart Bridge
Professor Martin Partington
Judge Alan Wilkie, QC
The Secretary of the Law Commission is Mr Michael Sayers and its offices are at
Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.
The consultation paper, and this summary of it, are circulated for comment and
criticism only. The consultation paper was completed on 28 March 2002 It does not
represent the final views of the Law Commission.
The Law Commission would be grateful for comments on this consultation paper
before 12 July 2002. Comments may be sent:
By post to
Helen Carr
Law Commission
Conquest House
37-38 John Street
Theobalds Road
London
WC1N 2BQ
Tel: 020-7453-1290
Fax: 020-7453-1297
By e-mail to
housingandadmin@lawcommission.gsi.gov.uk
It would be helpful if, where possible, comments sent by post could also be sent on disk,
or by e-mail to the above address, in any commonly used format.
All responses to the Consultation Paper, and this summary, will be treated as
public documents, and may be made available to third parties, unless the
respondent specifically requests that a response be treated as confidential, in
whole or in part.
The text of this summary and of the full consultation paper is available on
the Internet at:
http://www.lawcom.gov.uk
RENTING HOMES
1: STATUS AND SECURITY
LAW COMMISSION CONSULTATION PAPER 162
A SUMMARY
Page
PART I: INTRODUCTION 1
PART II: THE EVOLUTION OF HOUSING LAW 4
PART III: H OUSING STATUS AND SECURITY OF TENURE : PROMOTING
SIMPLIFICATION 4
PART IV: THE APPROACH IN OTHER JURISDICTIONS 5
PART V: THE IMPACT OF HUMAN RIGHTS LAW 6
PART VI: THE CONSUMER APPROACH: FOCUSSING ON THE AGREEMENT 6
PART VII: THE TYPE I AGREEMENT: THE SECURITY REGIME 10
PART VIII: THE TYPE II AGREEMENT: THE SECURITY REGIME 11
PART IX: THE SCOPE OF THE SCHEME 12
PART X: TERMINATING AGREEMENTS 14
PART XI: USING THE NEW AGREEMENTS 17
PART XII: THE POWERS OF THE COURTS 19
PART XIII: A NTI SOCIAL BEHAVIOUR 21
PART XIV: MAPPING EXISTING AGREEMENTS ONTO THE NEW SCHEME 24
PART XV: S UMMARY OF PROVISIONAL PROPOSALS AND CONSULTATION
QUESTIONS (This part is reproduced in full from the consultation paper) 25
RENTING HOMES
1: STATUS AND SECURITY
A SUMMARY
This is a summary of the Law Commission’s Consultation Paper “Renting Homes:
1: Status and Security”. The Paper sets out our reasoning and proposals in full.
The purpose of this summary is to assist consultees in identifying which
provisional proposals they need to investigate further in the full Paper, and to allow
those who cannot read the whole paper to respond. If consultees are in any doubt
on any point in the summary, or wish to seek more information as to the reasoning
behind our proposals, they are invited to consult a copy of the full Consultation
Paper. Please see the inside front cover of this summary for details of the paper
and the consultation process.
Part XV of the Consultation Paper, which lists our provisional proposals and
consultation questions, is reproduced in full at the end of this summary. When
responding to particular proposals or invitations for views or information,
consultees are asked to refer to the numbers in Part XV. The references in square
brackets in this summary are to paragraphs in the full Consultation Paper and to
the questions set out in Part XV. References in round brackets are to other
paragraphs within the summary.
PART I: INTRODUCTION
Background
1. This project is the result of a variety of pressures. In his review of the Civil Justice
system, Lord Woolf complained that the very complexity of housing law
constituted a considerable barrier to access to justice. Housing associations have
been calling for a single form of social tenure. Landlord interest groups have been
developing ideas for new approaches to the regulation of the private rented sector .
A new party political consensus was reached when the Labour Government
announced it would retain the basic regulatory framework put in place by the
former Conservative Government. All these factors have helped to create the
conditions for a law reform project.[See CP paras 1.1 to 1.5]
2. This Consultation Paper is the first of two relating to this project. A further
Consultation Paper in the summer of 2002 will deal with rights to succession and
other matters relating to the transmission of tenancies and licenses, in particular
assignment and subletting. [See CP paras 1.9 to 1.11]
3. The rented sector of the housing market in England and Wales continues to be of
considerable importance. All recent Governments have seen a continuing need for
an active rented sector. Different parts of England and Wales have different
demands for housing. Any regulation of the landlord-occupier relationship must be
flexible enough to allow for the implementation of strategic plans to alleviate the
various pressures in local areas. [See CP paras 1.64 to 1.82]
1
Objective
4. This consultation paper focuses on the legal framework for regulating the provision
of homes by private landlords, local authorities, housing associations and other
social landlords, whether in the form of tenancies or licences. We use the word
“occupier” throughout the Paper to refer to both tenants and licensees.
5. Our primary objective is to create a framework that is simpler and more flexible
than current arrangements [see CP paras 1.14 to 1.16]. To achieve this
(1) the number of housing statuses and the differences between them must be
reduced;
(2) the scheme must cover as many agreements as is practicable; and
(3) a way must be found to map existing tenancies and licenses onto our new
framework so that, from the date any new legislation is effective, all
housing agreements are covered by the new scheme.
6. Our proposals will change much of the detail of the present law; that is why,
paradoxically, a Consultation Paper dedicated to simplification has to be rather
long.
Outcome
7. The intended outcome of the first stage of this work is a Report and Draft Bill
which we hope may form part of the legislative programme in 2003-2004.
8. We also hope it may be the first stage in the creation of a comprehensive housing
code. [See CP paras 1.12 to 1.13]
Principles
9. Four basic principles underpin our proposals.
(1) The state should continue to guarantee security of tenure in appropriate
circumstances.
(2) Repossession of homes should only follow due process.
(3) Housing law should adopt a more consumer perspective.
(4) Our proposals must reflect the impact of the European Convention of
Human Rights.[See CP paras 1.17 to 1.36]
The scheme in outline
10. Our proposals in outline are as follows.
(1) There should be two statutory housing statuses: a type I agreement
providing considerable security of tenure, and a type II agreement with
much less security [see CP para 3.78]. We anticipate that social landlords
would usually use the type I agreement, and private landlords the type II.
[See CP paras 3.80 to 3.81]
2
(2) These agreements should be based on a contract entered into by the
parties which sets out both landlords’ and occupiers’ rights and
obligations. [See CP para 3.82]
(3) All residential housing agreements should be put into a written agreement.
The vast bulk of residential agreements should fall within the scope of our
proposed scheme, with only limited exceptions. [See CP para 3.79]
(4) The written agreement will comprise three sections:
(a) “core terms” defining issues such as the property and the rent,
which must be completed by the landlord;
(b) “compulsory terms” including terms imposed by statute to reflect
obligations imposed in law to which the parties are required to
adhere and terms which define the circumstances entitling the
landlord to start possession proceedings;
(c) “default/negotiable terms” which set out a detailed statement of
the rights and obligations of the parties. [See CP para 1.39]
(5) A number of model agreements containing all the terms will be provided
(in a Schedule to Regulations). These will, by definition, be compliant
with the requirements of the Unfair Terms in Consumer Contract
Regulations. Their use will enable landlords and occupiers to avoid any
uncertainty that may arise from the concept of “fairness”. [See CP para
3.83]
(6) The use of detailed written agreements will replace the current situation
where contractual arrangements are frequently over-ridden by detailed
statutory rules. [See CP para 6.5]
(7) To obtain an order for possession, the landlord will need both to warn the
occupier in writing that possession proceedings are in contemplation, and
to obtain an order from the court before possession. [See CP paras 1.25
and 1.46]
(8) The scheme should be flexible enough to encourage appropriate
alternative modes of dispute resolution. These may be particularly helpful
in the context of nuisance and anti social behaviour. [See CP para 3.85]
(9) The scheme should not only apply to all new housing agreements, but
should also embrace existing tenancies and licenses as far as possible. [See
CP paras 3.86 to 3.88]
11. The Consultation Paper does not cover the following issues: disrepair, tenancy
deposits, the development of specialist courts, rent control and regulation, housing
benefit, sectors of the housing market subject to their own regulatory codes,
homelessness and the right to buy. For the avoidance of doubt, we assume that the
current right to buy provisions will be preserved. [See CP paras 1.83 to 1.94]
3
PART II: THE EVOLUTION OF HOUSING LAW
12. To make proposals for the future, we need to remember the lessons of history. The
principal points are as follows.
(1) The structure of the housing market has changed dramatically over the
past 150 years. Over two-thirds of the population now own their homes.
The social rented sector now provides two-thirds of rented
accommodation. The structure of the housing market is still very dynamic,
particularly with the reduction in the role of local authorities and the
increase in the role of housing associations as providers of rented homes.
[See CP paras 2.125 to 2.137]
(2) The past 150 years demonstrate that there are potential imbalances in the
relationship between landlords and occupiers which cannot be corrected
solely by the operation of market forces. There remains an important role
for Government in the regulation of that relationship.
(3) The repeated use of detailed statutory provisions to over-ride contractual
provisions in housing agreements, and the tendency of legislators to set
out large numbers of exceptions and special provisions for particular
situations, has resulted in a body of law of considerable complexity which
is largely inaccessible to the majority of landlords, occupiers and even their
advisers. [See CP paras 2.119 to 2.124]
(4) The past 30 years has seen a revolution, throughout the service economy,
in attitudes towards consumers, designed to protect them from unfair
trade practices and unfair contractual provisions. [See CP paras 2.138 to
2.141]
13. Our proposed framework must allow for flexibility in the development of rented
housing; it must ensure a fair balance between landlords and occupiers; it should
ensure that contracts mean what they say so that the parties to them know where
they stand.
PART III: HOUSING STATUS AND SECURITY OF TENURE: PROMOTING
SIMPLIFICATION
14. Current law recognises a large number of housing statuses including
(1) the “secure tenancy”;
(2) the “introductory tenancy”;
(3) the “assured tenancy”;
(4) the “assured shorthold tenancy”; and
(5) the “Rent Act protected tenancy”. [See CP paras 3.11 to 3.17]
15. Nonetheless, many other types of occupancy agreement are currently excluded
from the existing statutory regimes. These include:
(1) lettings for holidays;
4
(2) lettings to students;
(3) lettings to ministers of religion ;
(4) lettings by resident landlords;
(5) lettings of properties above or below certain rental levels;
(6) Crown tenancies;
(7) licensees;
(8) almshouse licenses;
(9) dwellings on land acquired for development; and
(10) accommodation provided for temporary purposes, such as housing for the
homeless and for asylum seekers. [See CP paras 3.22 to 3.28]
16. Other types of occupancy fall under different schemes entirely, such as business
lettings, agricultural tenancies, long leases, and mobile homes. [See CP para 3.21]
17. Different sets of grounds for possession attach to each of the three principal
schemes of protection (secure, assured and Rent Act). Some grounds are
mandatory (where the court must order possession if the ground alleged is
proved), some are discretionary (where the court may order possession where it
thinks it is reasonable to do so), and some depend on the availability of suitable
alternative accommodation [see CP paras 3.38 to 3.47]. They have differing
requirements as to notices to be given to occupiers before possession proceedings
can be brought, and drafting differences. [See CP paras 3.48 to 3.73]
18. The current position is extremely complex. The goal of the project is to simplify
this picture and to increase transparency and flexibility. The key criteria for
achieving this are: the adoption of two agreement types; inclusion of as many
agreements as possible; a “landlord neutral” approach (defining agreements
without reference to particular kinds of landlord); an emphasis on the contract;
due process; alternative dispute resolution; and the incorporation of existing
schemes into our new scheme.
PART IV: THE APPROACH IN OTHER JURISDICTIONS
19. Useful insights can be gained from consideration of those provisions of Scottish,
Australian, Canadian and New Zealand housing legislation which are most closely
related to the scope of this consultation paper.
20. Our comparative analysis of this legislation leads us to make the following
observations:
(1) Certain concerns, such as the eradication of anti social behaviour and the
need to minimise areas of conflict between landlord and tenant, are
universal.
(2) Although the Housing (Scotland) Act 2001 is limited to the social rented
sector, it contains models for solutions to particular problems within that
sector which are useful for our project, such as the procedure for the
5
recovery of abandoned premises and the statutory structuring of judicial
discretion.
(3) All the legislation we have considered has concentrated on providing
comprehensive provisions which are transparent and comprehensible to
the landlord and occupier. This is fundamental to a consumer approach to
housing law.
PART V: THE IMPACT OF HUMAN RIGHTS LAW
21. The Human Rights Act 1998 has had significant impact on housing law, in
particular through a series of cases that have raised important procedural issues.
22. The current state of the case law indicates that any possession procedure will be
seen as engaging Article 8(1) of the European Convention on Human Rights and
thus must be justified under Article 8(2).
23. This impacts most directly on any procedures taken by public authority landlords
which might lead to the automatic ordering of possession by a court. This has
greatly influenced our approach to tackling anti social behaviour which is dealt
with in Part XIII.
PART VI: THE CONSUMER APPROACH : FOCUSSING ON THE AGREEMENT
24. We propose that a consumer approach should be adopted to the regulation of the
residential landlord-occupier relationship.
A contract that is fair
25. At the heart of this approach there must be a contract. The contract should be fair
and transparent, within the meaning of the Unfair Terms in Consumer Contracts
Regulations UK 1999 (UTCCR). [See CP paras 6.27 to 6.35]
A contract that is written
26. The agreement between the lan dlord and occupier must be written [see CP paras
6.72 to 6.77; Part XV paras 11 to 12]. The advantages of the consumer approach
are:
(1) The terms of housing rental agreements would be fairly balanced, rather
than having unfairly balanced agreements overridden by statutory rules;
(2) A statement of the rights and duties of the parties would be located in a
single place (the written agreement) rather than being arbitrarily
distributed between statutes, the common law and the agreement;
(3) The grounds for possession would be built into the written agreement,
rather than arising from a purely statutory intervention outside the written
agreement;
(4) Landlords would understand that being a residential landlord is as much
about providing a service to customers as it is about temporarily granting
a right to occupy land. [See CP paras 6.1 to 6.13; Part XV paras 3 to 4]
6
The terms of the agreement
27. The agreement would, by law, be divided into three parts [see CP paras 6.89 to
6.121; Part XV paras 16 to 26]:
(1) Part A would consist of the “core” terms describing the essence of the
agreement (parties, property, rent and any fixed term).
(2) Part B would consist of “compulsory” terms required to be in the
agreement as a matter of law. They could not be departed from. This Part
would be in two sub-sections: the first would set out the circumstances in
which the landlord may be entitled to an order for possession. The second
would contain those terms implied by law, for example the landlord's
covenant to repair.
(3) Part C would consist of “default/negotiable terms”. A prescribed list of
matters which would be expected to be found in any standard housing
agreement would be set out in a statutory instrument. The statutory
instrument would also contain draft default terms relating to these
matters. Landlords and occupiers would be able to negotiate their own
terms on these matters if they wished. Alternatively they could simply
reproduce or adopt these default terms in their agreements. This process
would be facilitated by the provision of model agreements which will
incorporate the default terms.
If the agreement does not cover one or more of the listed items, the
relevant default term will apply. Similarly if a term has been agreed orally
but is not put into writing, the relevant default term would apply. If the
parties fail to create a written agreement at all, then the default terms
would apply in their entirety.
If the parties write their own terms, then those terms would have to be
“fair” for UTCCR purposes, otherwise they would be replaced by an
appropriate default term. The default terms would all be “fair”, because
the UTCCR in essence deem fair those terms required by statute [see CP
para 6.114]. This would effectively encourage landlords to use the default
terms.
28. For Part C to function as we propose, the requirements of fairness and
transparency in the UTCCR should be extended to cover “negotiated terms” as
well as “non-negotiated” terms (including individually produced terms as well as
standard pre-prepared contracts). [See CP paras 6.46 to 6.50; Part XV para 6]
29. The list of matters in Part C would be drawn up by the Secretary of State, in
consultation with the relevant industry representatives [see CP para 6.112]. The
consultation process should aim to produce terms which are fair, clear,
comprehensive, easy to use, and appropriately balanced between the interests of
landlords and occupiers. [See CP para 6.97; Part XV para 19]
30. The statutory instrument will also set out any requirements as to the form and
presentation of written agreements. The proposed model agreements will comply
with these requirements. [See CP para 6.94; Part XV para 17]
7
Model agreements
31. We think that there would be three model agreements [see CP para 6.91 to 6.93]:
(1) type I agreements (which we anticipate will be periodic agreements –
where the rent is paid on a regular basis, but there is no fixed term for the
agreements),
(2) periodic type II agreements, and
(3) fixed term type II agreements.
32. The model agreements incorporating these terms should be widely available, eg in
newsagents, libraries, post offices and in downloadable form on the internet. [See
CP para 6.131]
The landlords’ duties to provide a written agreement
33. The landlord must ensure that the terms in Parts A, B and C are all set out in full
in the written agreement, so that both parties have a single reference point as to
their rights and obligations. This may mean that occupiers are given a longer
document than they are now. However, we argue that occupiers should have access
to the true basis of one of the most important contracts they enter into. Even if
they do not read it all initially, they should at least be able to consult the relevant
section when a problem arises. [See CP paras 6.18 and 6.75; Part XV para 12]
34. We are consulting on whether landlords (or at least social landlords) should be
required to provide occupiers with a summary of the agreement. [See CP paras
6.99 to 6.100; Part XV para 20]
Sanctions
35. Failure by the landlord to put the agreement into writing would not invalidate the
contract. [See CP paras 6.63 to 6.71; Part XV paras 9 to 10]
36. We propose that if the landlord fails to provide a written agreement within the first
two weeks of the occupier taking possession, the landlord would become liable to
the occupier for an amount equivalent to one day’s rent for each day’s delay
(starting with the date of entry into occupation). There would be an upper limit of
two months’ rent. The occupier would be able to withhold rent as a means of
recovering this amount. [See CP paras 6.125 to 6.126; Part XV para 27]
37. This rent sanction would also apply wherever a written agreement was provided
but which missed out any of the terms required to be in Part A or B and where it
failed in Part C to cover an issue contained in the list of default terms. A mere
reference to the statutory provision containing the relevant term would not be
enough to satisfy this requirement for writing. [See CP paras 6.129 to 6.131]
38. The rent sanction would not apply where a term is included in the written
agreement but is subsequently found to be invalid for some reason, for example for
being unfair within the meaning of UTCCR. [See CP para 6.132]
39. We are consulting on whether there should also be a criminal sanction . It may be
required for cases where landlords still fail to provide a written agreement after two
months despite loss of rent. [See CP paras 6.127 to 6.128; Part XV para 28]
8
40. Occupiers would be able to go to court (or perhaps the Rent Assessment
Committee) to obtain an order to make the landlord commit the terms of any oral
agreement to writing accurately or to correct any inaccuracy. [See CP paras 6.54
to 6.55; Part XV para 8]
Evidence of payment of the rent
41. The current rules on rent books will be replaced by a compulsory term in the
agreement. This will require the landlord to provide a system of payment which is
documented, whether in a paper rent book or computer equivalent, in a way that
the occupier can verify entries (this will not apply where occupiers pay for example
by standing order or direct debit, so that they have proof of payment in their own
bank statements). In the absence of such a system there will be a statutory
presumption that the rent had been paid. [See CP paras 6.83 to 6.88; Part XV
paras 14 to 15]
Varying the agreement
42. A rent variation clause would be included in the agreement. [See CP paras 6.147
to 6.148; Part XV para 34]
43. A non-rent variation clause could also be included in the agreement. [See CP
paras 6.151 to 6.155; Part XV para 35]
44. Any variation will need to be put into writing. We are consulting on whether the
occupier should at that point have the right to require the landlord to provide a
fresh copy of the agreement, as amended. [See CP paras 6.156 to 6.158; Part XV
paras 36 to 37]
Ensuring respect for agreements
45. Since landlords under type II agreements will be able to seek possession simply by
giving a notice of their intention to the occupier, they might use this to avoid their
contractual obligations. We ask whether this problem, if serious, could be alleviated
by enabling occupiers to claim compensation after an eviction , on proof that the
eviction was in reaction to an assertion by them of their contractual or statutory
rights.
46. Alternatively we ask whether tackling such problem should be left to landlord
accreditation systems and other means of encouraging good practice. [See CP
paras 6.159 to 6.175; Part XV paras 38 to 39]
Alternative dispute resolution
47. The consumer approach encourages a new attitude to the resolution of housing
disputes. In contexts (other than the seeking of a possession order where the court
must be involved) such as neighbour disputes, or disputes about repairs, alternative
dispute resolution may have much to offer. During the last decade a number of
alternative means of resolving housing disputes have evolved, such as the
Independent Housing Ombudsman, the tenancy deposit scheme, the Office of Fair
Trading and local authority tenancy relations officers, and community mediation.
Considerable encouragement should be given to alternative means of resolving
housing disputes. Part C could include a default term relating to the use of
alternative dispute resolution. [See CP paras 6.176 to 6.185; Part XV paras 40 to
41]
9
PART VII: THE TYPE I AGREEMENT: THE SECURITY REGIME
What is the type I agreement?
48. The new type I agreement is the agreement with a high level of guaranteed security
of tenure. It will replace secure and assured tenancies. [See CP para 7.1]
49. We envisage that the type I agreement will be used primarily by social landlords,
but it will be available to any landlords who wished to let on a long-term basis,
whether social or private. [See CP paras 7.7 to 7.10; Part XV para 42]
50. We also envisage it will be used primarily on a periodic basis, as the additional
(contractual) security provided by fixed terms is superfluous to a status which is
already very secure. [See CP paras 7.12 to 7.16; Part XV para 43]
Discretionary grounds for possession
51. We consider in detail whether any of the mandatory grounds for possession that
currently attach to assured tenancies should apply to the type I agreement. We
conclude that they should not, as they are incompatible with the aims of the
provision of housing on a long-term basis.
52. The landlord will be entitled to possession orders on a discretionary basis only. In
other words, the court may grant the order for possession only if it considers it
reasonable to do so. We propose that the exercise of the court’s discretion should
be structured to achieve greater consistency of decision-taking. [See CP paras 7.18
to 7.56; Part XV paras 44 to 49]
53. These discretionary bases for possession are compliant with the European
Convention on Human Rights. [See CP paras 12.17 to 12.24]
Circumstances in which the landlord is entitled to possession
54. The terms of the agreement will set out the circumstances in which the landlord
would be entitled to seek an order of possession from the court. The circumstances
would be:
(1) Where the occupier has breached the agreement [see CP paras 7.60 to
7.66; Part XV para 50];
(2) Where there are social policy reasons, for example the occupier has driven
their spouse or partner from the home by domestic violence; or has
obtained an agreement on the basis of false information [see CP paras
7.67 to 7.76; Part XV paras 51 to 53]; and
(3) Where there are estate management circumstances. [See CP paras 7.77 to
7.83; Part XV paras 54 to 55]
55. In addition we are consulting on whether other “ghost” grounds for possession
should be included in the terms of the agreement. These arise where there is an
undertaking not to use the dwelling for human habitation, where a demolition or
closing order has been made, where special occupancy directions are in force, or
where the dwelling has been acquired by a local highway authority for
development. [See CP paras 7.87 to 7.95; Part XV paras 57 to 60]
10
PART VIII: THE TYPE II AGREEMENT: THE SECURITY REGIME
What is the type II agreement?
56. The type II agreement is a short-term agreement with minimal security of tenure,
which replaces the assured shorthold tenancy. It will be used primarily by private
landlords, though there will be circumstances where social landlords may use it
which we spell out in Part XI. [See CP para 8.2]
57. The type II agreement will be able to be created on both a periodic and fixed term
basis. [See CP paras 8.6 to 8.8; Part XV para 61]
58. The type II agreement would be the default agreement for private landlords. [See
CP para 8.9]
The powers of the court
59. In relation to the type II agreement, there will be circumstances where the court
must order possession (mandatory) and those where it will order possession only
where it thinks it is reasonable to do so (discretionary). [See CP paras 8.11 to 8.12
and 8.47 to 8.49; Part XV paras 62 and 72]
Retention of the six months’ moratorium?
60. Under the current law, landlords cannot obtain an order for possession of an
assured shorthold tenant on the “notice-only” basis (ie where there is no default
on the part of the tenant) within the first six months. We ask whether the six
months’ moratorium is of real value to occupiers or whether it does little more
than preserve an appearance of security. [See CP paras 8.15 to 8.29; Part XV paras
64 to 65]
61. We further ask whether the period of notice under the notice-only procedure
should be increased to three months from the current two months. [See CP paras
8.36 to 8.38; Part XV paras 68 to 69]
62. We note that abandoning the six months’ moratorium would make it easier to
bring within the scope of our scheme many short term agreements currently
excluded from protection. [See CP para 8.16]
Circumstances in which the landlord is entitled to possession
63. The terms of the type II agreement would set out the circumstances in which the
landlord would be entitled to seek an order of possession from the court. [See
Consultation Paper paras 8.30 to 8.31; Part XV para 66]
Circumstances attracting mandatory possession orders
64. The circumstances in which the court would be required to order possession
would be “notice-only” and “serious rent arrears”.
65. The “notice-only” term would provide that the landlord is entitled to get a
possession order simply on the basis that the correct notice of intention to seek the
order has been given and without the need to demonstrate any fault on the part of
the occupier.
11
66. The notice-only procedure would not be available during a fixed term type II. [See
Consultation Paper paras 8.33 to 8.34; Part XV para 67]
67. There would be an accelerated possession procedure (similar to that currently
available for assured shortholds) for use with the notice-only procedure in type II
agreements. [See CP paras 8.13 to 8.14; Part XV para 63]
68. The serious rent arrears term would provide that where the occupier has
accumulated two months’ rent arrears both at the date when the landlord issued
the notice of intention to take proceedings and which remain outstanding at the
date of the hearing, the landlord is entitled to a mandatory order for possession.
69. This mandatory possession order would be available during fixed term type II
agreements as well as for periodic type II agreements. [See CP paras 8.39 to 8.41;
Part XV para 70]
70. There would no provision for any other mandatory possession orders in type II
agreements. [See CP paras 8.42 to 8.46; Part XV para 71]
Circumstances attracting discretionary possession orders
71. Circumstances attracting discretionary possession would be included in type II
agreements, on the same basis as those for type I (see above para 54).
72. Apart from the estate management circumstances, the discretionary circumstances
would be available during the course of a fixed term type II agreement.
Use of break clauses
73. We are consulting on whether break clauses – either unconditional or conditional –
should be used in the context of fixed term type II agreements. [See CP paras 8.60
to 8.68; Part XV paras 76 to 78]
What should happen at the end of a fixed term agreement
74. We propose that, on the expiry of a fixed term agreement, if no other agreement
has been reached, a periodic agreement should automatically replace it unless the
parties decide to enter a further fixed term period. Should the landlord or occupier
seek to bring this new agreement to an end, it would be terminated on the same
basis as any other periodic agreement. [See CP paras 8.69 to 8.78; Part XV paras
79 to 83]
PART IX: THE SCOPE OF THE SCHEME
75. A key part of simplifying housing law is to make our scheme as wide as possible
though we accept there have to be some exclusions.
Other statutory schemes
76. Our proposals will not affect arrangements falling under other statutory schemes:
business tenancies; agricultural tenancies; mobiles homes and long leases. [See CP
paras 9.4 to 9.20; Part XV paras 84 to 88]
12
Retention of the lease-licence distinction?
77. We propose that the lease-licence distinction should not be used to determine
which agreements come within the scope of the new statutory scheme and those
that fall outside it. This does not mean that the lease-licence distinction would be
abolished. It would continue to be of relevance in the determination of proprietary
interests. [See CP paras 9.21 to 9.42; Part XV para 89]
78. Thus contractual residential licences would come within the scope of the new
statutory scheme, though non-contractual licences would not. This means that
contractual licensees of almshouses would be covered by our new scheme. [See CP
paras 9.98 to 9.100; Part XV para 107]
79. Contracts for the occupation of defined categories of residential care
accommodation and hospitals would be excluded from the scheme. [See CP paras
9.44 to 9.51; Part XV paras 90 to 92]
80. The new statutory scheme would explicitly include agreements for occupiers aged
under 18. [See CP paras 9.54 to 9.57; Part XV para 94]
Other definitional issues
81. Our statutory scheme would apply to all contracts for rent which confer the right
to occupy premises as a home. This will cover any contract whether periodic or for
a fixed term of less than 21 years. [See CP para 9.58]
82. The phrase “contract for rent” is designed to indicate that the agreement should
be clearly one recognised as a rental agreement, excluding long leases where a
substantial premium is paid with only a modest ground rent.
83. The term “rent” would include both monetary payments of rent, and other forms
of payment such as payments in kind. Use of the word “rent” would not imply that
the scheme only applied to tenancy agreements.
84. There would be no lower or upper limit on the amount of rent payable under the
agreement for it to be included in our scheme.
85. Agreements where no rent at all was payable would fall outside the scheme. This
would exclude those family and other arrangements which are clearly intended not
to create legal relations. [See CP paras 9.59 to 9.70; Part XV paras 95 to 99]
86. The scheme would apply to all agreements conferring the right to occupy premises
as a home. Thus it would not be limited to premises occupied by the occupier as
their only or principal home (though landlords would be free to include a
contractual term to that effect).
87. The requirement of the current law that there must be a separate dwelling will also
be abolished. Special provision will be made for resident landlords and members of
their family. [See CP paras 9.71 to 9.91; Part XV paras 100 to 104]
Other exclusions from the scheme
88. Irrespective of any decision on whether the six months’ moratorium is retained or
abolished, the following categories of agreement would be excluded from the
scheme:
13
(1) Holiday lets,
(2) Agreements made as a temporary expedient with a person who entered
the property as a trespasser; and
(3) Supported accommodation provided by social landlords. [See CP paras
9.94 to 9.107; Part XV paras 105 to 110]
89. If the six months moratorium is retained, the following would have to be excluded:
(1) all agreements by resident landlords,
(2) agreements by housing co-operatives,
(3) lettings to students by universities and local authorities,
(4) temporary accommodation for the homeless,
(5) other lettings for defined temporary purposes,
(6) accommodation for asylum seekers, and
(7) service occupancies. [See CP paras 9.109 to 9.132; Part XV paras 111 to
121]
90. If the six months’ moratorium is abolished, only the following would be excluded:
(1) agreements where the occupier shares accommodation with a resident
landlord or a member of the family and the accommodation is the only or
principal home of the resident landlord or a member of the family [see CP
paras 9.133 to 9.139; Part XV paras 122 to 123], and
(2) (possibly) accommodation provided for asylum seekers. [See CP paras
9.155 to 9.157; Part XV para 128]
91. The choice between the two depends on the decision about whether or not there
should be a six months’ moratorium. Consultees are asked to take this into
account when arriving at an answer to the question at paragraph 60 above.
Crown tenancies
92. We propose that crown tenancies should fall within the new scheme. [See CP paras
9.164 to 9.166; Part XV para 130]
PART X: TERMINATING AGREEMENTS
93. Modernisation is required for various aspects of the law relating to the termination
of housing agreements.
Due Process
94. The courts would continue to be the final arbiter of whether or not a person
should lose the right to occupy their home. A landlord would have to obtain an
order for possession before an occupier could be evicted, although a full hearing
may not always be necessary. [See CP paras 10.3 to 10.7; Part XV para 131]
14
Notice requirements
95. It is important that occupiers are properly notified in advance of possession
proceedings. There would be a compulsory term in the agreement requiring
landlords to give occupiers notices warning them of such proceedings, indicating
that their home may be lost and that they should seek advice quickly. Failure to
serve the notice would continue to be a defence to proceedings; however, there
would be provision for the court to ignore non-compliance with the notice
requirements where it is just and reasonable. [See CP paras 10.8 to 10.11; Part XV
paras 132 to 133]
Period of the notice
96. The minimum length of the notice period would depend on the circumstances in
which possession is sought.
(1) A landlord’s notice seeking possession for anti social behaviour would be
effective immediately.
(2) A landlord’s notice seeking possession for breach of the agreement would
be of two or four weeks’ length, depending on consultees’ views.
(3) The notice under the type II “notice-only” procedure would be three
months if there is to be no six months’ moratorium (paragraph 61). If
there is to be a moratorium, we ask for views.
(4) A landlord’s notice in any other circumstance would be of four weeks’ or
two months’ length, depending on consultees’ views. [See CP paras 10.12
to 10.20; Part XV paras 134 to 136]
97. The minimum periods of notice would be set down in the compulsory terms in
Part B of the agreement. The periods could be extended by the parties by
including a more generous term in Part C. There would be no references in the
agreement to the common law rules on notices to quit. [See CP paras 10.21 to
10.25; Part XV paras 137 to 138]
The date to be given in the notice
98. We are consulting on two alternatives on the date which should be given in
landlords’ notices.
(1) The date of proceedings. The notice would state the date before which
proceedings cannot be started (as is the current position).
(2) The date of eviction. The notice would state the date before which a
possession order cannot take effect. In this case occupiers would still be
warned of the impending issue of proceedings under the Civil Procedure
Rules. The minimum length of notice periods would have to be adjusted
upwards to reflect the greater period of time covered by the notice. [See
CP paras 10.31 to 10.37; Part XV para 142]
Validity of notices
99. A “use it or lose it” approach would ensure that landlords took action, once a
notice had been issued. A limit would be placed on the length of time a landlord
could allow to elapse after the date given in the notice before actually issuing
15
proceedings. We are suggesting three months. The notice could be required to
mention expressly the date on which the notice would expire. [See CP 10.27 to
10.30; Part XV paras 140 to 141]
Format
100. The statutory instrument prescribing the terms of the agreement would regulate
the format and operation of notices and the means of service upon the occupier.
The model agreement could incorporate a form of notice as a tear-off slip at the
back. The agreement could also allow for notice to be given in an equivalent form,
with the court having a discretion to accept any alternative.
101. Whilst failure to serve the notice at all would provide a defence to proceedings,
mere failure to use the required form would not form a defence but rather might
be the basis for an adjournment of the proceedings and/or a costs application by
the occupier, as appropriate.
102. A notice to the occupier would be in the same form, whether it was served
pursuant to a break clause during a fixed period, or during a periodic agreement.
[See CP paras 10.38 to 10.48; Part XV paras 143 to 146]
Termination by the occupier
103. Occupiers would be able to end a periodic agreement by giving the landlord at
least four weeks’ notice.
104. In the case of a fixed term type II agreement, if a break clause was agreed which
could be used by the occupier, he or she would similarly have to give four weeks’
notice of intention to use the break clause. The default terms in Part C of the
agreement would specify the format, content and operation of these notices.
105. If the occupier did not leave the home on the due date stated in the notice, the
agreement would still continue; however, the occupier would be liable to the
landlord in damages for any losses suffered by the landlord. Further, in the case of
a type II agreement, the occupier’s failure to leave would entitle the landlord to
take notice-only possession proceedings within the same period as if the landlord
had given the notice. In the case of a type I agreement, it would entitle the
landlord to take possession proceedings for breach of the agreement. [See CP
paras 10.49 to 10.52; Part XV para 147]
Repudiatory breach
106. The compulsory terms in Part B of the agreement would also refer to the
occupier’s right to treat the agreement as terminated immediately if the landlord
has committed a repudiatory breach of contract. The agreement could provide a
form of immediate notice for the occupier to signal their acceptance of the breach.
[See CP paras 10.58 to 10.61; Part XV para 150]
Surrender
107. In cases of express surrender (where the landlord and occupier agree to bring the
agreement to an end immediately without any need for notice) the requirement for
a deed would be replaced by a simple requirement for writing. Depending on
consultees’ views, there could perhaps be a prescribed warning on the face of the
16
surrender document warning the occupier about the loss of their security. [See CP
paras 10.62 to 10.64; Part XV para 151]
Abandonment
108. Landlords would be able to use a repossession procedure where the occupier has
abandoned the home, modelled on sections 17 to 19, Housing (Scotland) Act
2001. It would allow for a clear, simple process for repossession by the landlord
without threat of being sued for unlawful eviction and harassment, but with a
process for the occupier to apply to court to put right any mistakes. [See CP paras
10.65 to 10.69; Part XV para 152]
PART XI: USING THE NEW AGREEMENTS
Social landlords
109. We have defined our two types of agreement on the basis of the principle of
landlord neutrality. Nevertheless, the role of social landlords is mostly to provide
accommodation on a stable long-term basis, and to do so using public funding. We
think it may be necessary to impose some limitations on the freedom of choice of
social landlords.
110. We are consulting on whether social landlords should be subject to no statutory
requirement to use any particular agreement type, or to impose a statutory
requirement to use type I agreements subject to defined exceptions allowing the
use of type II agreements instead. [See CP paras 11.2 to 11.4]
111. Under the first option, while we would expect type I to be the most used, this
would not be a legal requirement. This would mark a radical change in the current
regulation of social landlords, even though we would expect they would choose,
drawn by commitment or funding, to let on type I agreements in the vast majority
cases. [See CP paras 11.5 to 11.6]
112. The second option would mean there would be a list of defined exceptions, when
they would be permitted to use type II agreements instead of type I. This option
would provide sufficient flexibility for social landlords to respond appropriately to
local conditions, while remaining consistent with the broad approach. It would
make the type I tenancy the “single social tenancy” for which many have argued.
[See CP paras 11.7 to 11.8.]
Exceptions justifying use of type II agreements by social landlords
113. If the six months’ moratorium were to be abolished, social landlords would be
entitled to use type II agreement for short term lettings to certain groups who are
currently excluded from security under the Housing Act 1985 [see CP paras 11.45
to 11.50; Part XV para 162]. These include:
(1) for service occupiers;
(2) (possibly) for asylum seekers;
(3) for homeless persons owed temporary rehousing duties;
(4) for certain other categories of temporary letting as currently set out in
paragraphs 3 and 5 to 7 of Schedule 1 to the Housing Act 1985; and
17
(5) probationary agreements to replace the current introductory tenancy.
A general probationary agreement
114. The current introductory tenancy regime provides local authorities with a means
of imposing a one year low-security probationary period on occupiers, before they
are promoted to high security secure tenancies. It has been limited in its
effectiveness by case law under the Human Rights Act 1998. Registered social
landlords have used assured shorthold tenancies as probationary tenancies in a
similar way. We believe all social landlords should have the same powers in this
respect. [See CP paras 11.16 to 11.22]
115. The type II agreement would be available as a general probationary agreement to
all social landlords (or, if there is to be a six months’ moratorium, a version of the
type II without the moratorium). They would have discretion to use such a
probationary type II agreements as local conditions require, adopting a general
policy of always using them, or of using them for only certain categories of
occupiers or even of making a decision on a case by case basis. [See CP 11.23 to
11.29; Part XV paras 155 to 156]
116. The probationary status should last for 12 (or perhaps 18) months. There should
be the possibility of promotion to a type I agreement earlier where the occupier’s
behaviour justified this. There should be limited scope for extending the period for
a further 6 months, but only if the landlord was of the opinion that the behaviour
of the occupier was such as to warrant such an extension. [See CP paras 11.30 to
11.36; Part XV paras 157 to 158]
117. The normal administrative law remedies would be available to prevent capricious
decision making where the landlord was a local authority or – depending on the
decision of the court in a particular case – a registered social landlord.
Alternatively the Housing Corporation might be given the power to approve, and
regulate, particular schemes for use of probationary agreements by registered
social landlords. [See CP paras 11.37 to 11.44; Part XV paras 159 to 161]
Other cases
118. Social landlords could also be allowed to use type II in other circumstances
requiring additional flexibility, such as when letting to key public sector workers or
other groups with particular localised accommodation needs.
119. They could also be allowed to let a proportion of their properties on a commercial
type II basis, for example to young employed people, to promote more diverse
communities or to provide an additional income stream for maintenance or
development purposes. [See CP paras 11.51 to 11.53; Part XV para 163]
120. If a social landlord failed to provide a written agreement or the written agreement
provided did not make it clear which agreement type is being granted, then the
agreement would be by default a type I agreement. [See CP paras 11.54 to 11.56;
Part XV para 164]
Private landlords
121. Private landlords would able to grant type I agreements if they chose, but would
not be required to do so. We anticipate that type II agreements will most
commonly be used in the private rented sector. Agreements granted by private
18
landlords would be type II unless the landlord states that the agreement is to be
type I. [See CP paras 11.57 to 11.68; Part XV paras 165 to 167]
Scope for developments in the market
122. The type II agreement would provide the standard minimum level of protection in
the private sector.
123. Where the market demanded, private landlords would be encouraged to enhance
by contract the levels of protection afforded by the type II agreement, by granting
type II fixed terms of up to 21 years, or by granting type I agreements. [See CP
paras 11.69 to 11.74]
PART XII: THE POWERS OF THE COURTS
124. Our new scheme complements the drive to modernise civil procedure found in the
new rules relating to possession proceedings which were introduced as Part 55 of
the Civil Procedure Rules in October 2001. [See CP paras 12.3 to 12.6]
Structured discretion
125. Both the new type I and type II agreements contain circumstances where the court
can order possession on a discretionary basis.
126. When dealing with applications to terminate on a discretionary basis, the court
would retain its discretion to adjourn proceedings, to stay, suspend or postpone
orders on appropriate conditions, and to discharge possession orders when
conditions are complied with. [See CP paras 12.7 to 12.10; Part XV para 168]
127. However, we propose that the exercise of discretion should be structured explicitly
in the legislation. A statutory list of factors the court would be required to take
into account would be provided. These would include:
(1) whether the eviction of the household concerned is proportional to the
benefit to be obtained by doing so;
(2) the effects of granting or not granting an order, not only on the tenant and
the tenant’s household but also on the landlord;
(3) the landlord’s interests;
(4) the interests of the landlord’s other tenants; and
(5) the interests of the general public. [See CP paras 12.11 to 12.28; Part XV
paras 169 to 170]
128. This structured discretion could also be made to apply to the full range of the
court’s powers to order suspension, adjournment and postponement of both
possession orders and warrants. Alternatively enforcement issues could be left to
the Lord Chancellor’s Department enforcement review process and the developing
case-law. [See CP paras 12.29 to 12.32; Part XV para 171]
129. In anti social behaviour cases (see Part XIII), this structuring would take the form
of requiring a possession order to be made unless a defined exception applies.
19
Suspended possession orders for rent arrears
130. Lord Woolf’s Report Access to Justice said that there are serious problems with the
current use of suspended possession orders for rent arrears (in cases on the
discretionary grounds for rent arrears, rather than the mandatory ground 8 of the
Housing Act 1988). We agree.
131. To avoid such problems, we are consulting on whether there should be a new
procedure:
(1) Stage 1 would involve an administrative procedure whereby the court
would issue a written warning to the tenant that continued failure to pay
rent or to pay off the arrears would be likely to lead to further proceedings.
(2) If the tenant continued to fail to pay the arrears, the landlord could seek a
possession order under stage 2, which would involve a substantive hearing
to determine both the arrears owed and whether possession should be
ordered. At this stage, the court could only dismiss the application, grant
the possession order or issue a renewed warning, but could not make a
suspended possession order.
132. This would have the advantage of ensuring that the hearing took place at the time
when the landlord was really serious about obtaining an order for possession. [See
CP paras 12.33 to 12.41; Part XV para 172]
Enforcement of possession orders
133. We are seeking views as to whether there are problems arising from the fact that
under the current law
(1) where there is an absolute possession order, the agreement terminates on
the date set out in the order; and
(2) where there is a suspended possession order (whether for rent arrears or
on another ground such as nuisance), the agreement terminates on the
breach of the order.
134. If there are problems arising from the current law, we think a possible solution
could be to make the agreement end on the date of execution of any possession
order; that is, when the occupier is actually evicted.
135. If the current position does not create problems except where there are breaches of
suspended possession orders for rent arrears, they could be cured by the two-stage
process replacing suspended possession orders for rent arrears outlined at
paragraph 133 above. [See CP paras 12.42 to 12.52; Part XV para 173]
Warrants for possession
136. Currently, problems arise where the entitlement to issue a bailiff’s warrant to
enforce possession is based on a breach of the terms of a suspended possession
order. Such warrants can be obtained without any notification to the tenant,
without a hearing, and without the landlord having to prove the breach or react to
the breach within any time-scale. Whilst the tenant can apply for a hearing to set
aside the warrant, or to suspend the warrant, there is currently no statutory
requirement for the tenant to be informed of these rights.
20
137. In the case of rent arrears, if the two-stage process outlined at paragraph 135 above
is adopted to replace suspended possession orders, this could solve these problems.
138. If not, and in other types of cases (such as nuisance), a hearing could be required
before the issue of a possession warrant on a suspended possession order.
139. Alternatively, such problems could be better tackled by new rules on court forms.
[See CP paras 12.53 to 12.58; Part XV paras 174 to 175]
PART XIII: ANTI SOCIAL BEHAVIOUR
The need to combat anti social behaviour
140. A small number of occupiers, or members of their households, behave in an anti
social way towards their neighbours. This is a matter of great concern, particularly
for the management of social housing.
141. Effective action against anti social behaviour requires both vigour and
proportionality, and may require restraint as well as forceful action. The primary
objective is not to remove the anti social occupier, but to change behaviour.
However if eviction does become necessary, then it is important that it is, as far as
possible, swift and certain. [See CP paras 13.1 to 13.9]
The current law
142. There has been a number of new powers created in recent years to deal with anti
social behaviour. These have been particularly made available to local authorities.
We think that all social landlords should have the same powers. [See CP 13.10 to
13.19; Part XV paras 176 to 177]
143. We do not consider that the same range of powers should be available to private
landlords. They are appropriately catered for by the ability to evict on the notice-
only basis in periodic type II agreements, to obtain injunctions (albeit without
powers of arrest) and to seek possession on a discretionary basis for breach of the
agreement. [See CP paras 13.20 to 13.22]
Creation of a duty to combat anti social behaviour
A general duty
144. We propose that local authorities should be subject to a generally worded public
law duty to combat anti social behaviour, which would not found a cause of action
for the tort of breach of statutory duty. [See CP paras 13.25 to13.26]
145. Registered social landlords would be covered by a duty couched in similar terms,
accompanied by a specific duty on the Housing Corporation to have regard to the
general duty in performing its regulatory functions. Other agencies such as the
Independent Housing Ombudsman would also no doubt take the existence of the
general duty into account.
146. If the human rights case-law develops so that registered social landlords are
recognise generally to be bodies exercising public functions the Secretary of State
could be given power to extend the duty to them. [See CP paras 13.27 to 13.32;
Part XV paras 178 to 180]
21
A contractual duty
147. We are consulting on whether social landlords should be required to include, in
their agreements, a term specifying that the landlord should take all reasonable
steps to ensure that the occupier was able to live in the premises free of anti social
behaviour by the occupants of other premises owned by the landlord. Breach of
such a term would provide the occupier with specific and individual remedies,
including a right to damages in the event of breach. [See CP paras 13.33 to 13.34;
Part XV para 181]
148. Express provision could be made for the members of the occupier’s household to
enforce such a term, as well as the occupier, by using the Contracts (Rights of
Third Parties) Act 1999 (subject to a further term not requiring their consent to
any agreed rescission or variation of the agreement). [See CP paras 13.35 to 13.36;
Part XV para 182]
Dealing with serious housing related anti social behaviour
149. We propose that there should be a single concept of serious housing-related anti
social behaviour to activate the various powers available. As a suggestion for
consultation, we suggest it should apply to an occupier or a person residing in or
visiting the home acting in a manner that caused or was likely to cause serious
harm, harassment, alarm or distress to others, where the behaviour is either linked
to the occupation of the home or occurs in the locality of the home. [See CP paras
13.38 to 13.40; Part XV paras 183 to 184]
Anti social behaviour and type II (probationary) agreements
150. Where an occupier under a probationary type II agreement behaves in such a
manner, we propose a new summary eviction procedure.
151. The first stage is that the landlord would seek a summary order for possession
from the county court. The court would only be required to satisfy itself that any
relevant notices had been complied with. After eviction, the occupier would be
entitled to apply to the court to consider the eviction. [See CP paras 13.41 to
13.44]
152. We propose two options for the detail of how the scheme would work.
153. The first is that there would be no statutory requirement for an internal review by
the social landlord, but the hearing after eviction would be a full hearing on the
merits of the case, determining both whether the occupier behaved as alleged and
whether eviction was reasonable (using the structured discretion). [See CP para
13.46]
154. The second is that there would be a full statutory internal review, similar to that in
the introductory tenancy scheme, before the eviction. The court hearing after the
eviction would be like a judicial review of the social landlord’s actions, rather than
a full hearing of the merits. [See CP para 13.47]
155. In both cases the court would be the county court.
156. If the court found the decision to evict was not reasonable or not lawful, it would
be able to order that the occupier who should not have been evicted should be re-
housed. It could also award compensatory damages
22
157. This summary eviction procedure is meant to be only be used as a last resort, or in
cases of extreme gravity. Landlords could be required to produce an account of
what other steps they had taken to deal with the anti social behaviour as part of the
court process. Failure to do so, or to do so adequately, might, in some cases, affect
the decision of the court, and could in addition be penalised in costs. [See CP
paras 13.57 to 13.60; Part XV paras 189 to 190]
Anti social behaviour and type I agreements
158. Landlords would be entitled to give accelerated notice in possession applications
for anti social behaviour in breach of the agreement, and would be given
possession where it is reasonable to do so.
159. To enhance consistency in judicial decision making on the question of the
reasonableness, there would be a statutory structuring of the discretion. Where
there is a breach of a term prohibiting anti social behaviour, the judge would be
required to exercise his or her discretion to order possession except in certain very
limited circumstances, for instance a trivial breach or a change in circumstances
making repetition highly unlikely. [See CP paras 13.69 to 13.73; Part XV para
193]
Powers of Arrest on Injunctions
160. A power of arrest would be available for injunctions obtained by social landlords to
restrain breaches of the compulsory term on anti social behaviour (in both type I
and type II agreements). Its use could be limited to cases of actual or threatened
violence, or extended to serious and persistent non-violent harassment, such as
racial abuse. [See CP paras 13.63 to 13.68; Part XV paras 191 to 192]
New remedies for breach of an injunction
161. If the county court finds as a fact that an occupier has breached an injunction
against anti social behaviour, then the court should be able to order eviction
(subject to reasonableness), without the need for free standing possession
proceedings. Remedies short of eviction would also be provided as an alternative,
namely demotion to a probationary agreement, and relocation elsewhere. [See CP
paras 13.75 to 13.76; Part XV para 194]
162. Where an occupier was demoted, they would be promoted back to a type I
agreement if the landlord chose to do so, or the court ordered it (on application by
the occupier after 6 months), or a period of two years had elapsed. [See CP paras
13.77 to 13.80; Part XV paras 195 to 196]
163. Relocation would either be accompanied by demotion or would be into supported
housing. It would be into premises provided by the same landlord, but not
necessarily in the same area. [See CP paras 13.81 to 13.83; Part XV para 197]
Anti social behaviour orders
164. With amendments currently being made in the Police Reform Bill, anti social
behaviour orders would become available to registered social landlords and from
county courts (where there were existing proceedings).
165. Under our proposals, county courts or magistrates’ courts making an anti social
behaviour order could certify that the behaviour warranting it included serious
23
housing-related anti social behaviour. Breach of such a certified order would entitle
the social landlord to apply to the county court for the same new remedies as for
breach of an injunction, or to the magistrates’ court for criminal sanctions.
Alternatively, there could be a general power for county courts to grant anti social
behaviour orders and consider breach proceedings. [See CP paras 13.84 to 13.90;
Part XV paras 198 to 199]
PART XIV: MAPPING EXISTING AGREEMENT ONTO THE NEW SCHEME
166. The objective of simplification of the current law will be greatly assisted if existing
agreements can be brought into the new scheme.
167. We propose that if local authorities and registered social landlords are required to
use type I agreements, then existing local authority secure tenancies and registered
social landlord fully assured tenancies could be converted into type I agreements.
168. If local authorities and registered social landlords can choose between type I and
type II agreements, then existing local authority tenancies would become type I
agreements. Registered social landlords could be required to choose whether to
give their tenants, either a type I agreement, or an enhanced type II agreement
which did not include the notice-only procedure but did include mandatory
possession for serious rent arrears. [See CP paras 14.3 to 14.14; Part XV paras
200 to 202]
169. Those tenants and licencees of local authorities and registered social landlords not
presently covered by one of the statutory schemes (excluding the Protection from
Eviction Act 1977) would either be converted into type II occupiers, or remain
outside the scheme, depending on consultees’ views on the scope of the new
scheme (see Part IX). [See CP paras 14.15 to 14.16; Part XV para 203]
170. Fully assured tenancies, other than those granted by registered social landlords,
would convert into enhanced type II agreements, as above. [See CP paras 14.17 to
14.18; Part XV para 204]
171. Assured shorthold tenancies would convert into type II agreements, with the
specific terms of the old tenancy (such as any fixed term) becoming terms of the
new agreement. [See CP paras 14.19 to 14.21; Part XV para 205]
172. Rent Act tenancies would be converted into type I agreements, with the fair rent
regime preserved in a separate legislative structure. [See CP paras 14.26 to 14.43;
Part XV paras 209 to 210]
173. When a current tenancy or license is converted into a new type I or II agreement,
we are consulting on how existing terms could best be incorporated into a new
written agreement. [See CP paras 14.22 to 14.25; Part XV paras 206 to 208]
174. Our new scheme should be introduced as a single exercise, rather than through a
staged programme. It would be accompanied by a major public information and
advice campaign. [See CP paras 14.44 to 14.48; Part XV para 211]
24
PART XV
SUMMARY OF PROVISIONAL PROPOSALS
AND CONSULTATION QUESTIONS
In this Part, we list our provisional proposals and conclusions, and set out the
other issues on which we seek consultee’s views. More generally, we invite
comment on any of the matters raised in this paper and any other suggestions that
consultees may wish to put forward. For the purposes of analysing the responses, it
would be helpful if, as far as possible, reference could be made to the numbers of
paragraphs in this part.
PART I: INTRODUCTION
Regulatory impact
1. We ask for information about the regulatory impact of our provisional proposals in
this paper. (CP paragraph 1.98)
PART V: THE IMPACT OF HUMAN RIGHTS LAW
Human rights and housing law: some conclusions
2. We invite views on whether it should be made clear by statute that registered social
landlords should be deemed to be public authorities for the purposes of the
Human Rights Act 1998, in relation to their not-for-profit housing activities. (CP
paragraph 5.77)
PART VI: THE CONSUMER APPROACH : FOCUSSING ON THE AGREEMENT
The need for a contract
3. We provisionally propose that the agreement between the landlord and the
occupier should be the place where their respective rights and obligations are
definitively set out. (CP paragraph 6.6; Summary paragraph 26)
4. We provisionally propose that our scheme should, subject to the discussion in Part
IX, apply to any contract for rent which confers a right to occupy premises as a
home. (CP paragraph 6.8)
The application of the law on unfair contract terms to housing agreements
5. We provisionally propose that all those who enter into contractual agreements
within the scope of our proposed scheme should be deemed to be suppliers and
consumers within the scope of the Regulations, and thus the requirements of
fairness and transparency should apply to all agreements covered by our new
scheme. (CP paragraph 6.45)
6. We provisionally propose that, in relation to agreements covered by our scheme,
the requirements of fairness and transparency should not be limited to non-
negotiated terms, and should cover negotiated terms as well. (CP paragraph 6.50;
Summary paragraph 28)
25
7. We provisionally propose that the definition of core terms should be left to
consumer legislation rather than being included in a Housing Act. (CP paragraph
6.53)
8. We invite views on whether a special jurisdiction should be created, for example in
the rent assessment committee, or the county court, to amend written agreements
that do not accurately reflect previous oral agreements. (CP paragraph 6.55)
The need for a written agreement
9. We provisionally propose that a housing agreement which is made orally or which
otherwise fails to comply with statutory requirements as to formality or registration
of leases shall nevertheless be treated as a valid agreement between the landlord
and the occupier and shall be subject to the regulation of our new scheme. (CP
paragraph 6.66; Summary paragraph 35)
10. We invite views on whether an oral agreement should become effective as soon as
the oral agreement was made; or only after there has been written
acknowledgement of the agreement in a letter; or by completion of the written
agreement prior to the occupier going into occupation; or, assuming that a written
agreement has not been provided, only after the occupier has entered into
possession. (CP paragraph 6.70)
11. We provisionally propose that all agreements covered by our new scheme should
be put into a written form. (CP paragraph 6.74; Summary paragraph 26)
12. We further provisionally propose that the duty to put the agreement into writing
should fall on the landlord; that the landlord should be required to provide a copy
for the occupier; and that in any court proceedings that might arise under the
agreement, the landlord should be required to produce a copy of the written
agreement. (CP paragraph 6.75; Summary paragraph 33)
13. We provisionally propose that the rules relating to the core terms in Part A of the
agreement should include specific requirements for providing occupiers with
information about the landlord’s identity (and those of any agents) and a place of
business as an address for service. (CP paragraph 6.82)
14. We provisionally propose there should be a new evidential rule, to be used in any
claims for arrears, that – in the absence of a system for recording rent payments –
there will be a statutory presumption that the rent has been paid. The presumption
would be rebuttable. (CP paragraph 6.85; Summary paragraph 41)
15. We provisionally propose that the current rules on rent books should be replaced
by a compulsory term in the agreement that, in the absence of the occupier having
a record of payments made, the landlord should provide a system of payment
which is documented, whether in a paper rent book or computer equivalent, and in
such a way that the occupier can verify entries. (CP paragraph 6.88; Summary
paragraph 41)
The terms of the agreement
16. We provisionally propose that the structure of the contract should be prescribed by
Act of Parliament. The details of the contents of each part of the contract should
be set out in delegated legislation. (CP paragraph 6.90)
26
17. We provisionally propose that the statutory instrument setting out the terms would
also set the requirements as to the format and presentation of the written
agreements. (CP paragraph 6.94; Summary paragraph 30)
18. We also provisionally propose that the regulations are drafted in such a way that
the terms of the agreement set out in the regulations can be translated, verbatim,
into the model agreement. (CP paragraph 6.95)
19. We provisionally propose that the Secretary of State should be obliged to consult
relevant interests in the housing industry to ensure that the model agreement
terms are fair and clear and that, so far as possible and practicable, terms should
be drafted in plain English. (CP paragraph 6.97; Summary paragraph 29)
20. We invite consultees’ views on whether it would be appropriate to require
landlords to provide occupiers with summaries of their agreements. (CP paragraph
6.100; Summary paragraph 34)
21. We provisionally propose that the core terms should be included in the written
agreement. (CP paragraph 6.102; Summary paragraph 27)
22. We invite views on whether other terms, for example the amount of any deposit,
should be included as a core term. (CP paragraph 6.103)
23. We provisionally propose that terms relating to security and other legally implied
terms should be compulsory terms, which will need to be included in the
agreement as fully written out terms, and not be subject to amendment. (CP
paragraph 6.110; Summary paragraph 27)
24. We provisionally propose that
(1) the regulations should prescribe a list of items relating to the parties’ rights
and obligations under the agreement which must be covered by a term in
the agreement and which will be set out in Part C of the agreement;
(2) that in relation to each item there will be a default term which takes effect
in default of an express term but can be overridden by an express term;
(3) that the agreement should set out the terms in full, not just by reference to
the regulations; and
(4) that the default terms will be applied either where the landlord has failed
to provide a written agreement, or where the agreement fails to address all
the prescribed matters. (CP paragraph 6.117; Summary paragraph 27)
25. We invite views on the issues which should properly be prescribed in Part C of the
agreement. (CP paragraph 6.118)
26. We provisionally propose that legislation should make clear that the appropriate
default term will apply where an express written term has been ruled unfair under
the Unfair Terms in Consumer Contracts Regulations 1999. (CP paragraph 6.121;
Summary paragraph 27)
27
Sanctions
27. We provisionally propose that where a landlord fails to provide a written agreement
within (say) the first two weeks of the occupier taking possession, the landlord
should be deemed to owe the occupier an amount equivalent to one day’s rent for
each day’s delay, starting with the date of entry into possession. There would be
specific provision for the occupier to be able to withhold rent as one way of
recovering this amount. The amount due would be calculated by the number of
days starting on the date on which the occupier entered into possession of the
dwelling under the terms of the agreement (not from two weeks later) and ending
on the date the written agreement was provided, subject to an upper limit of the
equivalent of (say) two months’ (or such other period as may be agreed) rent. (CP
paragraph 6.126; Summary paragraph 36)
28. We seek consultees’ views as to whether an ongoing sanction is required for cases
where landlords still fail to provide a written agreement, despite the loss of rent.
Do consultees feel that it would be useful and appropriate to create, in addition, a
continuing criminal offence of failure to provide a written agreement by the end of
the first two months of the agreement? (Paragraph 6.128; Summary paragraph 39)
29. We provisionally propose that the rent sanction should also apply wherever a
written agreement is provided but which omits any of the issues prescribed in Part
B and Part C of the agreement, but that this should not apply where all such terms
are included in a written agreement but one or more term is found to be invalid.
(CP paragraph 6.133; Summary paragraph 37)
30. We also provisionally propose that the written agreement should set out all the
terms in full. A mere reference to the statutory provisions containing the relevant
terms would not be enough to meet the writing requirement. (CP paragraph
6.134; Summary paragraph 37)
31. If there is to be a criminal sanction, we invite consultees’ views as to whether it
should be limited to cases of complete failure to provide a written agreement,
rather than including cases where an agreement is provided but is incomplete. (CP
paragraph 6.135; Summary paragraph 39)
32. We provisionally propose that provision of information about the landlord should
be treated as one of the matters on which written information must be provided, so
any failure will attract the rent sanction we provisionally propose. (CP paragraph
6.137)
33. We invite views as to whether the threat of potential criminal proceedings in such
circumstances might constitute a useful spur to compliance. (CP paragraph 6.139)
Variation of agreements
34. We provisionally propose that the list of matters prescribed for the default terms in
Part C of the agreement should make provision for a clause allowing rent to be
reviewable and revisable on an annual basis. (CP paragraph 6.148; Summary
paragraph 42)
35. We invite views as to a whether non-rent variation clause should be included in the
list of items prescribed for the default terms in Part C of the agreement or left
wholly to negotiation between the parties. (CP paragraph 6.155; Summary
paragraph 43)
28
36. We provisionally propose that, to be enforceable, any variation to the agreement
must be notified in writing by the landlord to the occupier. (CP paragraph 6.157;
Summary paragraph 44)
37. We further provisionally propose that, following notification of a variation, the
occupier should be entitled to require the landlord to supply a revised copy of the
agreement. (CP paragraph 6.158; Summary paragraph 44)
Ensuring respect for the contract
38. We seek the view of consultees on the following questions:
(1) Should the landlord’s desire to evict an occupier who has sought to assert
his contractual or statutory rights be the basis of a defence to possession
proceedings, as is common in the Commonwealth and the USA?
(2) Should a former occupier be able to use the landlord’s “improper motive”
as the basis of a claim for damages after the eviction?
(3) Where the landlord’s improper motive could be shown, should the court
have power to order reinstatement of the occupier in the premises,
notwithstanding the complications that might arise, particularly where
premises had been re-let? (CP paragraph 6.173; Summary paragraph 45)
39. In the alternative, we invite views on whether consultees believe that a better
approach would be to rely on promoting good practice. (CP paragraph 6.175;
Summary paragraph 46)
Alternative dispute resolution
40. We invite views on whether encouragement should be given to the appropriate use
of alternative dispute resolution in the resolution of disputes about housing
matters. (CP paragraph 6.184; Summary paragraph 47)
41. If the answer is yes, we also invite views on whether alternative dispute resolution
processes should be included in the issues to be covered by the default terms and
in relation to what types of dispute alternative dispute resolution might be
particularly relevant. (CP paragraph 6.185; Summary paragraph 47)
PART VII: THE TYPE I AGREEMENT: THE SECURITY REGIME
The type I agreement
42. We provisionally propose that there should be created a type I agreement,
providing long-term security of tenure. It should be defined adopting the landlord-
neutral approach. (CP paragraph 7.10; Summary paragraphs 48 to 49)
43. We invites views on the question whether type I agreements should only be able to
be created on a periodic basis. (CP paragraph 7.16; Summary paragraph 50)
Court orders for possession: discretionary or mandatory?
44. We provisionally propose that, subject to the discussion on serious rent arrears and
mortgage default, below, there should be no circumstances in which a court should
be mandatorily required to make an order for possession in relation to a type I
agreement. (CP paragraph 7.26; Summary paragraph 51)
29
45. We provisionally propose that it is not appropriate that the court should be
required to order possession without the exercise of its discretion, even where there
are serious arrears of rent, where a home is provided on the basis of a type I
agreement. (CP paragraph 7.44)
46. We invite views as to whether lenders have found themselves able to take eviction
proceedings themselves on ground 2. (CP paragraph 7.49)
47. We also invite views on whether lenders are in practice insisting on registered
social landlords using ground 2, whether any money has been lent on that basis
and whether it would cause problems if money was in future not lent to registered
social landlords because of abolition of a basis for possession akin to ground 2.
(CP paragraph 7.50)
48. We provisionally propose that it is not appropriate that the court should be
required to order possession without the exercise of its discretion where the
landlord has defaulted on a mortgage. (CP paragraph 7.52)
49. We further suggest that consideration should be given to a scheme to enable
lenders to enforce their security on the insolvency of a registered social landlord.
(CP paragraph 7.53)
Security of tenure: the terms in the agreement
50. We provisionally propose that breach of the agreement by the occupier should be
the first of the circumstances in which the landlord may take possession
proceedings. (CP paragraph 7.66; Summary paragraph 54)
51. We seek information on whether this ground is used in practice, whether it is seen
as useful and what drawbacks are associated with it. (CP paragraph 7.72)
52. We provisionally propose that there should be a provision in the agreement stating
that proceedings may be taken against an occupier whose violence has driven his or
her spouse or partner from the home. (CP paragraph 7.74; Summary paragraph
54)
53. We provisionally propose that the agreement should contain a provision which
enables landlords to seek repossession where they can prove that the agreement
was obtained on the basis of false information. (CP paragraph 7.76; Summary
paragraph 54)
54. We provisionally propose that the agreement should contain a provision which
would enable landlords to seek possession on estate management grounds where
this would be reasonable. (CP paragraph 7.81; Summary paragraph 54)
55. We seek views on whether the provision should be a broadly drafted term,
modelled on the suitable alternative accommodation ground; or whether it should
be more precisely defined, as in the secure tenancy scheme. (CP paragraph 7.82)
56. We provisionally propose that the agreement should contain a statement about the
powers of the court and the steps the occupier should take when threatened with
possession proceedings. (CP paragraph 7.86)
30
The “ghost” grounds of possession
57. We provisionally propose that Part C of the agreement (the default terms) should
contain a term prohibiting overcrowding, breach of which would be a basis for the
landlord taking proceedings for possession in the normal way. (CP paragraph 7.91;
Summary paragraph 55)
58. We provisionally propose that enforcement of housing orders and undertakings
should be undertaken directly by the authorities that made the orders or accepted
the undertakings, not by the landlord. (CP paragraph 7.92)
59. If consultees are against this provisional proposal, we ask whether the possibility of
action being brought against an occupier in any of these circumstances should be
stated in the agreement. (CP paragraph 7.93)
60. We invite views as to whether these are of enough significance in practice
(particularly to the relevant enforcement agencies) to be worth bringing into the
type I agreement scheme, along the lines suggested above. (CP paragraph 7.95)
PART VIII: THE II AGREEMENT: THE SECURITY REGIME
The type II agreement
61. We provisionally propose that there should be created a type II agreement,
modelled on the existing assured shorthold tenancy, which should be able to be
created on both a periodic and fixed term basis. (CP paragraph 8.8; Summary
paragraphs 56 to 57)
The court’s powers to order possession
62. We provisionally propose that, in relation to the type II agreement, there should be
circumstances in which the court would be mandatorily required to order
possession. (CP paragraph 8.12; Summary paragraph 59)
63. We provisionally propose that, on the assumption that our recommendation for a
notice-only basis for seeking possession is agreed (below paragraph 67), a landlord
employing it should be able to use an accelerated procedure, not involving a
hearing. (CP paragraph 8.14; Summary paragraph 67)
64. We invite views on the question: should the six months’ moratorium on a court
granting a possession order, currently a feature of the assured shorthold tenancy,
be a feature of the type II agreement? (Paragraph 8.27; Summary paragraph 60)
65. We would particularly welcome evidence about the benefit tenants currently derive
from the six months’ moratorium in the assured shorthold tenancy. (Paragraph
8.28; Summary paragraph 60)
Security of tenure: the terms in the agreement
66. We provisionally propose that the circumstances in which a landlord may seek an
order for possession of premises subject to a type II agreement should be set out in
the terms of the agreement. (CP paragraph 8.31; Summary paragraph 63)
67. We provisionally propose that the periodic type II agreement should provide that
the landlord may seek an order for possession from the court merely on the basis
31
of having issued an appropriate notice to the occupier. (CP paragraph 8.34;
Summary paragraph 65)
68. If the six months’ moratorium on granting possession is not to be a feature of the
type II agreement, we provisionally propose that the statutory minimum period of
notice required for seeking possession on the notice-only basis should be three
months, rather than the two months’ notice (generally) required in assured
shorthold tenancies. (CP paragraph 8.37; Summary paragraph 61)
69. We invite views on whether the period should be two or three months, if there is to
be a six months’ moratorium in the type II agreement. (CP paragraph 8.38;
Summary paragraph 61)
70. We provisionally propose that the type II agreement should contain a term which
provides that, where the occupier has accrued two months arrears of rent at the
date of the notice of intention to seek possession and at the date of the court
hearing, the landlord is entitled to seek an order for possession which the court is
required to make without the exercise of discretion. (CP paragraph 8.41; Summary
paragraph 68)
71. Subject to later consideration of ground 7, we provisionally propose that there
should be no other circumstances set out in the type II agreement which should
entitle the landlord to seek a mandatory order for possession. (CP paragraph 8.46;
Summary paragraph 70)
72. We provisionally propose that all the circumstances entitling the landlord to seek a
discretionary order for possession, available in the type I agreement, should also be
available to landlords in the periodic type II agreement. (CP paragraph 8.49;
Summary paragraph 71)
73. We provisionally propose that the terms of a fixed term type II agreement should
provide that, during the contractual period, the landlord is entitled to bring
proceedings for possession before the end of the fixed term if the circumstances we
have classified as occupier default or social policy arise. Such an order for
possession would only be made where the court thought it reasonable in the
exercise of its discretion. (CP paragraph 8.53; Summary paragraph 72)
74. For the avoidance of doubt, we provisionally propose that the procedures for
seeking possession in these circumstances should be those provided for within the
scheme we propose, and that the law and procedures relating to forfeiture of
tenancies should not apply. (CP paragraph 8.54)
75. We invite views on whether the landlord under a fixed term type II agreement
should be entitled to seek a discretionary order for possession in the circumstances
falling within the scope of estate management. (CP paragraph 8.59; Summary
paragraph 72)
Break clauses
76. We provisionally propose that terms analogous to break clauses in fixed term
commercial leases should be able to be included in fixed term housing agreements.
(CP paragraph 8.62; Summary paragraph 73)
32
77. We provisionally propose that while a landlord who seeks to take advantage of a
break clause must be required to obtain an order for possession from the court,
occupiers should not be required to obtain a court order, so long as they have
notified the landlord that they intend to take advantage of the break clause. (CP
paragraph 8.65)
78. We invite views on whether courts should be required to order possession where
the landlord seeks an order on the basis of an unconditional or conditional break
clause, or whether any order should only be made following the exercise of
discretion by the court. (CP paragraph 8.67)
Expiry of fixed term tenancies
79. We provisionally propose that, on the expiry of the period of a fixed term
agreement, a periodic agreement should automatically come into being, unless the
parties have agreed to enter a further fixed term agreement. (CP paragraph 8.71;
Summary paragraph 74)
80. We provisionally propose that where a periodic tenancy has been created by
operation of law, the landlord should be under a duty to provide the occupier with
a new version of the contract. (CP paragraph 8.75)
81. We provisionally propose that if the landlord fails to provide a revised version of
the agreement, the occupier shall have the right to require the landlord to provide
one. (CP paragraph 8.76)
82. We provisionally propose that the sanction of the loss of rent to the landlord
should not apply until after the occupier has notified the landlord in writing that
he or she requires a revised version of the agreement. The sanction would come
into effect 14 days from the date of the service of the notice requesting the copy of
the agreement on the landlord. (CP paragraph 8.77)
83. We provisionally propose that the terms of the original fixed term agreement
should themselves set out the effect of these proposals. (CP paragraph 8.78)
PART IX: THE SCOPE OF THE SCHEME
The relationship with other statutory schemes
84. We provisionally propose that our proposed statutory regime should exclude
business tenancies, including those tenancies where there is mixed residential and
business use where the business use is significant. (CP paragraph 9.11; Summary
paragraph 76)
85. We provisionally propose that licensed premises be excluded from our scheme even
when such premises include residential premises. (CP paragraph 9.13)
86. We provisionally propose that our proposals should not affect property subject to
the Agricultural Tenancies Act 1995 or the Agricultural Holdings Act 1986. (CP
paragraph 9.15; Summary paragraph 76)
87. We provisionally propose that agreements for renting homes that include
agricultural or other land not subject to the Agricultural Holdings Act 1986 or the
Agricultural Tenancies Act 1995 should come within the statutory scheme we
propose. (CP paragraph 9.17; Summary paragraph 76)
33
88. We provisionally propose that leases granted for a term certain exceeding 21 years
should be excluded from our proposed statutory scheme. (CP paragraph 9.20;
Summary paragraph 76)
Should the lease-licence distinction be retained as a test for determining
the scope of the scheme?
89. We provisionally propose that the scope of our statutory scheme should be
determined independently of the lease-licence distinction. (CP paragraph 9.42;
Summary paragraph 77)
90. We provisionally propose excluding from the ambit of our proposed statutory
scheme all residential provision which has to be registered under the Care
Standards Act 2000. (CP paragraph 9.47; Summary paragraph 79)
91. We provisionally propose excluding hospitals defined under National Health
Service Act 1977. (CP paragraph 9.49; Summary paragraph 79)
92. We provisionally propose excluding military barracks from our proposed scheme of
statutory regulation. (CP paragraph 9.51)
93. We provisionally propose that, where there are exceptional reasons for so doing,
defined categories of agreement may be excluded from the scheme by the
Secretary of State by incorporation in list of exclusions in a statutory instrument.
(CP paragraph 9.53)
94. We provisionally propose that our proposed statutory scheme should explicitly
include contracts for renting to those under 18 years of age. (CP paragraph 9.57;
Summary paragraph 80)
Other definitional issues affecting the scope of the scheme
95. We provisionally propose that our scheme apply to contracts which contain a
requirement for the payment of “rent”. (CP paragraph 9.62; Summary paragraph
81)
96. We invite views on whether it is necessary to provide a definition of rent. (CP
paragraph 9.63)
97. We provisionally propose that there should be no lower limit on the amount of rent
payable under the contract for it to be included in our proposed statutory scheme.
(CP paragraph 9.66; Summary paragraph 84)
98. We provisionally propose that there should be no upper limit on the amount of
rent payable under the contract. (CP paragraph 9.68; Summary paragraph 84)
99. We provisionally propose that agreements at no rent would fall outside our
proposed scheme. (CP paragraph 9.70; Summary paragraph 85)
100. We provisionally propose that the word “home” be used in preference to the word
“dwelling”. (CP paragraph 9.74)
101. We provisionally recommend that the scheme should cover any agreement that
confers a right to occupy premises as a home. (CP paragraph 9.78)
34
102. We provisionally propose that the scheme should not be limited to the occupier’s
“only or principal” home. (CP paragraph 9.82; Summary paragraph 86)
103. We provisionally propose that there should be no specific additional requirement
that the home be separate from that of others (leaving aside the special case of a
resident landlord). (CP paragraph 9.89; Summary paragraph 87)
104. We provisionally propose that the definition of the agreements covered by our
proposed scheme should not include specific reference to occupation by an
individual. (CP paragraph 9.91)
Statutorily excluded categories of agreement
105. We propose that holiday lets should be excluded both from our proposed statutory
scheme and from the Protection from Eviction Act 1977. (CP paragraph 9.95;
Summary paragraph 88)
106. We provisionally propose that agreements granted as a temporary expedient to a
person who entered the premises as a trespasser should be excluded both from our
proposed statutory scheme and from the Protection from Eviction Act 1977. (CP
paragraph 9.97; Summary paragraph 88)
107. We provisionally propose that the residents of almshouses should not be excluded
from our proposed statutory scheme. (CP paragraph 9.100; Summary paragraph
78)
108. We provisionally propose that all projects providing an appropriate level of
supported accommodation to vulnerable groups should be excluded our scheme
and from the Protection from Eviction Act 1977. (CP paragraph 9.103; Summary
paragraph 88)
109. We further provisionally propose that the definition of “hostel” in the Protection
from Eviction Act 1977 should be modernised to reflect the current practice of
providing supported provision with an increasing use of self contained
accommodation. (CP paragraph 9.104)
110. We invite views on whether the Secretary of State should have the power to
maintain a list of projects which he or she considered met the criteria. The
inclusion of a project on the list would be definitive of the status of the project as
excluded as supported accommodation. (CP paragraph 9.106)
111. If there is a moratorium, we provisionally propose that occupiers of resident
landlords be excluded from our proposed scheme. (CP paragraph 9.110; Summary
paragraph 89)
112. If there is a moratorium, we provisionally propose that the current exclusion of
occupiers who share accommodation with resident landlords from the Protection
from Eviction Act 1977 should be maintained. (CP paragraph 9.112)
113. If there is a moratorium, we would provisionally propose that those to whom a
right of occupation has been granted by a fully mutual housing association should
be excluded from our proposed scheme. (CP paragraph 9.114; Summary
paragraph 89)
35
114. If there is a moratorium, we provisionally propose that agreements by educational
institutions to students should be excluded from the scope of our statutory
scheme. (CP paragraph 9.117; Summary paragraph 89)
115. For the avoidance of doubt we provisionally propose that students who rent from
educational institutions or local authorities should be included within the
provisions of the Protection from Eviction Act 1977. (CP paragraph 9.119)
116. If there is a moratorium, we provisionally propose that accommodation provided
on a temporary basis for homeless persons be excluded from the scope of our
proposed scheme, but continue to be protected by the Protection from Eviction
Act 1977. (CP paragraph 9.121; Summary paragraph 89)
117. If there is a moratorium, we provisionally propose that the agreements for the
temporary purposes currently excluded from the secure tenancy regime should be
excluded from the scope of our proposed scheme but should be included within
the Protection from Eviction Act 1977. (CP paragraph 9.124; Summary paragraph
89)
118. If there is a moratorium, we provisionally propose that accommodation provided
for asylum seekers should fall outside our proposed statutory scheme. (CP
paragraph 9.126; Summary paragraph 89)
119. We invite views on whether asylum seekers should no longer be excluded from the
Protection from Eviction Act 1977. (CP paragraph 9.128)
120. If there is a moratorium, we provisionally propose that service occupiers who are
required to occupy the premises for the better performance of their duties be
excluded from the scope of our proposed scheme. (CP paragraph 9.130; Summary
paragraph 89)
121. We provisionally propose that all service occupancies should be protected by the
Protection from Eviction Act 1977. (CP paragraph 9.132)
122. If there is no moratorium, we provisionally propose that an agreement should be
excluded from our scheme and from the Protection from Eviction Act 1977 where
the landlord shares accommodation with the occupier and occupies the property as
his only or principal home; or a member of the landlord’s family shares
accommodation with the occupier and occupies the premises as his only or
principal home. (CP paragraph 9.138; Summary paragraph 90)
123. If there is no moratorium, we further provisionally propose that all other
agreements made by resident landlords should fall within the scope of our
proposed scheme (as type II agreements). (CP paragraph 9.139)
124. If there is no moratorium, we provisionally propose that the occupiers of fully
mutual housing associations (housing co-operatives) should no longer be excluded
from statutory regulation. (CP paragraph 9.141)
125. If there is no moratorium, we provisionally propose that lettings by educational
institutions or by local authorities to students should come within scope of the
type II agreement. (CP paragraph 9.145)
36
126. If there is no moratorium, we provisionally propose that accommodation provided
on a temporary basis for those to whom duties are owed under Part VII of the
Housing Act 1996 should be provided on the basis of a type II agreement. (CP
paragraph 9.151)
127. If there is no moratorium, we provisionally propose that lettings for the for the
temporary purposes currently excluded from the secure tenancy regime should be
made as type II agreements. (CP paragraph 9.154)
128. If there is no moratorium, we invite views on whether accommodation provided for
asylum seekers should be on the basis of type II agreements. (CP paragraph 9.157)
129. If there is no moratorium, we provisionally propose that service occupancies
should come within the scope of our scheme as type II agreements. (CP paragraph
9.161)
Crown tenancies
130. We provisionally propose that Crown tenancies should no longer be excluded from
statutory regulation. (CP paragraph 9.166; Summary paragraph 92)
PART X: TERMINATING AGREEMENTS
Due process – the notice requirements
131. We provisionally propose that a landlord should be required to obtain a court
order for possession against any occupier covered by our proposed scheme. (CP
paragraph 10.7; Summary paragraph 94)
132. We provisionally propose that landlords should be required to issue a notice
warning occupiers of their intention to bring possession proceedings and that this
should be a compulsory term in the contract. (CP paragraph 10.10; Summary
paragraph 95)
133. We provisionally propose that failure to serve the notice should constitute a
defence to possession proceedings. However, there should be power for the courts
to ignore non-compliance with the notice requirements where that would just and
equitable. (CP paragraph 10.11; Summary paragraph 95)
134. We provisionally propose that a landlord’s notice of intention to take proceedings
on the basis of anti social behaviour should be able to be effective immediately.
(CP paragraph 10.14; Summary paragraph 96)
135. We invite views as to whether the notice period where the landlord intends to seek
possession on the ground that the occupier has broken the agreement should be
two weeks or four weeks. (CP paragraph 10.16; Summary paragraph 96)
136. We invite views on whether the period of notice in circumstances other than
breach of the agreement by the tenant or the notice-only basis for possession for
type II agreements should be four weeks or two months. (CP paragraph 10.18;
Summary paragraph 96)
137. We provisionally propose that the periods of notice be defined by statute, and the
effect of these rules be incorporated in Part B of the agreement, subject to
enhancements in Part C. (CP paragraph 10.24; Summary paragraph 97)
37
138. We further provisionally propose that notices should be able to begin and end on
any day, and not be required to end on the last day of a period of a agreement. (CP
paragraph 10.25)
139. We provisionally propose that notices should be able to be served on the occupier
at the property rented as the address for service given in part A of the contract.
(CP paragraph 10.26)
140. We provisionally propose that a limit should be put on the length of time a
landlord can allow to elapse after the date given in the notice before issuing
proceedings, and suggest that the period should be three months. (CP paragraph
10.29; Summary paragraph 99)
141. We provisionally propose that a landlord’s notice should include the date on which
the notice becomes ineffective. (CP paragraph 10.30)
142. We invites views on whether the date to be given in landlords’ notices should be
the date before which proceedings cannot be started – as is currently the more
common case; or the date before which a possession order cannot take effect. (CP
paragraph 10.37; Summary paragraph 98)
143. We provisionally propose that notices should contain prescribed information, in
plain English, and that the details should be contained in a term in the agreement.
A sample notice should appear in a Schedule to the model agreement. (CP
paragraph 10.44; Summary paragraph 100)
144. We invite views whether a copy of the original agreement should be attached to
any landlord’s notice. (CP paragraph 10.45)
145. We invite views as to the contents of notices relating to both type I and type II
agreements and whether a single form of notice for both agreement types can be
developed. (CP paragraph 10.46)
146. We provisionally propose that any failure to comply with notice requirements
should not form a defence to proceedings, so that the whole process has to be
started again, but rather could become the basis for an adjournment and/or costs
application as appropriate. (CP paragraph 10.47; Summary paragraph 101)
Termination by the occupier
147. We provisionally propose that the length of notice to be given by a occupier should
continue to be four weeks and that the default terms should contain a provision
relating to the occupier’s notice to quit. (CP paragraph 10.51; Summary paragraph
103)
148. We provisionally propose that the length of notice to be given by an occupier to
exercise a break clause should be four weeks’ and that the default terms should
contain a provision relating to the occupier’s notice. (CP paragraph 10.55;
Summary paragraph 104)
149. We further provisionally propose that in the case of both a occupier’s notice to quit
and a occupier’s notice to exercise a break clause, the landlord should have the
right to take proceedings against the occupier if he or she has not left the premises
by the date stated in the notice. Pending the final departure of the occupier, the
38
agreement should be deemed to continue, subject to the occupier’s liability in
damages for any losses suffered by the landlord. (CP paragraph 10.57; Summary
paragraph 105)
150. We provisionally propose that the compulsory terms of the contract should refer to
the occupier’s right to treat the agreement as terminated immediately if the
landlord has committed a repudiatory breach of contract. (CP paragraph 10.61;
Summary paragraph 106)
151. We provisionally propose that, in relation to the termination of fixed term
agreements covered by our regime, the requirement for a deed for express
surrender should be replaced by a requirement for writing. (CP paragraph 10.64;
Summary paragraph 107)
Abandonment
152. We provisionally propose that a procedure modelled on sections 17-19 Housing
(Scotland) Act 2001 should be created, allowing a clear simple procedure for
repossession in abandonment cases with a procedure for the occupier to apply to
court to put right any mistakes. (CP paragraph 10.69; Summary paragraph 108)
PART XI: USING THE NEW AGREEMENTS
Social landlords
153. We provisionally reject two of the four options available: option 2, to require local
authorities generally to use the type I agreement, subject to specified exceptions,
but to give other social landlords a free choice between using type I or type II
agreements; and option 4, to require all social landlords, including purely private
charities, generally to use type I agreements, subject to the specified exceptions.
(CP paragraph 11.13)
154. We invite views as to which of the following two options would be preferred:
(1) allowing all social landlords, including local authorities, free choice
between using the type I or the type II agreement (option (1)); or
(2) imposing a statutory requirement on all local authorities and registered
social landlords to use type I agreements, subject to a range of exceptions
(option (3)). (CP paragraph 11.14; Summary paragraphs 110 to 112)
Exceptions
155. We provisionally propose that a general probationary agreement be available to
local authorities and registered social landlords. (CP paragraph 11.26; Summary
paragraph 114)
156. If local authorities and registered social landlords are required to use type I
agreements, subject to specific exceptions allowing them to use type II agreements
(option (3)), or if there is general freedom of choice (option 1), but the six months’
moratorium is retained, we provisionally propose that
(1) local authorities and registered social landlords should be able to let to a
new occupier on a probationary agreement for up to 12 months (in the
first instance); and
39
(2) if there is no six months’ moratorium, the type II agreement would be
suitable as the general probationary agreement, but that if there is a
moratorium, local authorities and registered landlords should be able to
use a variant of the type II agreement that did not include the moratorium,
for the purpose of creating a probationary agreement. (CP paragraph
11.28; Summary paragraphs 115 to 116)
157. We provisionally propose that, after 12 months on a probationary type II
agreement, a landlord could extend the probationary period for a further 6
months, but only if it is of the opinion that the behaviour of the tenant was such as
to warrant such an extension. (CP paragraph 11.35; Summary paragraph 116)
158. We invite views on the periods suggested here. Would an 18 month period for the
initial probationary agreement be more appropriate, with a six month extended
period? (Paragraph 11.36)
159. We invite views on whether the Housing Corporation should be given powers to
approve probationary agreement schemes for use by registered social landlords.
(CP paragraph 11.39; Summary paragraph 117)
160. We provisionally propose that challenges to a landlord’s decisions under a
probationary agreement scheme should be to the county court, not the
Administrative Court. (CP paragraph 11.43)
161. We further recommend that the powers of the county court should be framed
sufficiently flexibly to allow it to develop whatever level of intensity of review by
the landlord is required under human rights law. (CP paragraph 11.44)
162. If there is no six months’ moratorium, we provisionally proposed that social
landlords should be permitted to let on type II agreements:
(1) to service occupiers,
(2) to asylum seekers,
(3) to homeless persons to whom the local authority owes duties under Part
VII to the Housing Act 1996, and
(4) in circumstances where the social landlord is letting on a temporary basis
as currently set out in paragraphs 3 and 5 to 7 of Schedule 1 of the
Housing Act 1985. (CP paragraph 11.47; Summary paragraph 113)
163. We invite views on the other circumstances in which social landlords should be
entitled to use type II agreements. (CP paragraph 11.53)
164. We provisionally propose that in the absence of a clear written agreement
specifying the agreement type social landlords will be presumed to let on type I
agreements. (CP paragraph 11.56)
Private landlords
165. We provisionally propose that any restrictions on which types of agreement can be
used by private landlords should, at least for the time being, be contained in
statutory provisions. (CP paragraph 11.61)
40
166. We provisionally propose that private landlords should able to grant type I
agreements if they choose, but should not be required to do so. (CP paragraph
11.64; Summary paragraph 121)
167. We provisionally propose that agreements granted by private landlords should be
type II unless the landlord states that it is to be type I. (CP paragraph 11.67;
Summary paragraph 121)
PART XII: THE POWERS OF THE COURTS
The exercise of discretion
168. We provisionally propose that the court should have an extended discretion, when
dealing with applications for possession orders on a discretionary basis. This
discretion would allow the court to adjourn proceedings, to stay, suspend or
postpone orders on appropriate conditions, and to discharge possession orders
when conditions are complied with. (CP paragraph 12.10; Summary paragraph
126)
169. We provisionally propose that our new regime should include a framework to
structure the exercise of discretion in cases based on reasonableness grounds. It
should explicitly require the court to consider whether the eviction of the
household concerned is proportional to the benefit to be obtained by not doing so.
It should explicitly refer to the effects of granting or not granting an order, not
only on the occupier and the occupier’s household but also on the landlord, the
landlord’s interests, the landlord’s other occupiers, and the general public. Where
possession of a fixed term tenancy is for decision, the length of the term remaining
should also be considered. (CP paragraph 12.27; Summary paragraph 127)
170. We invite views on other factors that might be included in the structured
discretion. (CP paragraph 12.28)
171. We invite views on whether the new structured discretion should apply to the full
range of the court’s extended discretion on suspension, adjournment and
postponement of both orders and warrants or whether enforcement issues should
be left to the Lord Chancellor’s Department enforcement review process and the
developing case-law. (CP paragraph 12.32; Summary paragraph 128)
Rent arrears and suspended possession orders
172. We invite consultees to comment on the following options and any practical
problems they might cause.
(1) Should new housing legislation make the attempt, along the lines
suggested by the Woolf Report, to limit the use of suspended possession
orders in rent arrears cases?
(2) Should the first stage be limited to a court issuing a warning to the
occupier instead of making a final judgement on the arrears owed, with
liability for the arrears being left to be determined to the stage where the
landlord wants an absolute possession order?
(3) Should suspended possession orders for rent arrears be abolished, forcing
parties and the court to focus on eviction? (paragraph 12.41; Summary
paragraphs 130 to 132)
41
Enforcement
173. We invite views on the following questions:
(1) Does the current position, that agreements terminate on breach of a
suspended possession order, lead to significant problems in practice?
Should the present position be replicated in reform of the law? Our
provisional view is that it should not.
(2) Would there be more benefit than harm in a rule that an agreement is
ended not by the coming into force of the possession order but by its
execution?
(3) Would it instead be preferable to tackle any problems by reducing reliance
on suspended possession orders in arrears cases as recommended in the
Woolf Report? (Paragraph 12.52; Summary paragraphs 133 to 135)
174. We invite views as to the practicality of requiring a hearing before the issue of a
possession warrant after a suspended possession order has been made on rent or
other discretionary ground cases. (CP paragraph 12.57; Summary paragraphs 136
to 138)
175. Alternatively we invite views whether any related problems would be best tackled
by rules on court forms and/or by adopting the Woolf Report recommendations on
rent arrears cases. (CP paragraph 12.58; Summary paragraph 139)
PART XIII: ANTI SOCIAL BEHAVIOUR
Which landlords?
176. We provisionally propose that, so far as possible, local authorities and registered
social landlords should have the same powers and duties, as landlords, in respect of
anti social behaviour. (CP paragraph 13.18)
177. We invite views on whether unregistered housing associations should have similar
powers and duties. (CP paragraph 13.19)
A general duty to deal with antisocial behaviour
178. We provisionally propose that a general duty should be imposed on local
authorities to take action against anti social behaviour. (CP paragraph 13.30;
Summary paragraph 144)
179. We further provisionally propose that a similarly worded duty be placed on
registered social landlords, expressed as not to take effect in tort, which the
Housing Corporation would be obliged to take into account in the performance of
its regulatory functions. (CP paragraph 13.31; Summary paragraph 145)
180. We invite views on whether, as an alternative to the proposal in the preceding
paragraph, the Secretary of State should be empowered to extend the duty on local
authorities to registered social landlords, if he considers that they have come to be
recognised as exercising functions of a public nature. (CP paragraph 13.32;
Summary paragraph 146)
181. We invite views as to whether there should be a requirement on social landlords to
include in their agreements a term specifying that the landlord should take all
42
reasonable steps to ensure that the occupier is able to occupy the home free of anti
social behaviour by the occupants of other premises owned by the landlord. (CP
paragraph 13.34; Summary paragraph 147)
182. If consultees support the inclusion of a specific term in the agreement, we invite
views on whether or not it should be expressed to be for the benefit of other
members of the occupier’s household for the purposes of the Contracts (Rights of
Third Parties) Act 1999 (subject to a further term not requiring their consent to
any agreed rescission or variation). (CP paragraph 13.36; Summary paragraph
148)
Dealing with serious anti social behaviour
183. We provisionally propose that it would be advantageous if there were a single
concept of housing-related anti social behaviour which would apply to new
procedures for dealing with the matter. (CP paragraph 13.39; Summary paragraph
149)
184. We provisionally propose that serious housing-related anti social behaviour should
be defined as “behaviour where the occupier or a person residing in or visiting the
home has acted in a manner that caused or was likely to cause serious harm,
harassment, alarm or distress to others where the behaviour is either linked to the
occupation of the home and/or occurs in the locality of the home.” (Paragraph
13.40; Summary paragraph 149)
185. We provisionally propose that a new summary eviction procedure be created. It
would be available to a local authority or registered social landlord believes that an
occupier under a type II (probationary) agreement has been responsible for serious
housing-related anti social behaviour. The occupier could subsequently challenge
the reasonableness of the decision (option A) or the lawfulness of the decision
(option B). (CP paragraph 13.55; Summary paragraphs 150 to 152)
186. The features of Option A would be as follows.
(1) The landlord would apply to the county court for a formal order for
possession, on the ground that the occupier had breached the term of the
agreement prohibiting anti social behaviour. The procedure for obtaining
the order would be a paper only one, the court being required only to
satisfy itself that any relevant notices had been complied with. There
would be no procedure for adjournment.
(2) After eviction, the occupier would be entitled to apply to the court to
consider the eviction. The court would determine whether the occupier
had indeed breached the term prohibiting anti social behaviour, and, if he
or she had, would go on to consider whether it was reasonable in all the
circumstances to have evicted the occupier.
(3) If the court found that the occupier had not breached the term, or that he
or she had done so but that nevertheless the eviction was unreasonable,
then the occupier would be entitled to
(a) be re-housed by the landlord in similar accommodation in the
same general area, and /or
43
(b) compensatory damages. (Summary paragraph 153)
187. The features of Option B would as follows.
(1) There would be a statutory internal review procedure, similar to that for
introductory tenancies, requiring notice to be given to the occupier of the
decision, with reasons, followed by, at the request of the occupier, a
further review by a senior officer which included a right to an oral hearing,
representation and examination of witnesses.
(2) On completion of the review process, and on the assumption that the
occupier had failed to reverse the landlord’s decision, the landlord would
obtain a summary possession order from the court.
(3) The occupier would be entitled after eviction to apply to the county court
to judicially review the decision to evict, the degree of judicial review being
such as was necessary to make the procedure as a whole complaint with
Article 6.
(4) The reviewing county court would have the power to quash the order,
substitute another order and/or make a declaration in relation to the case,
and, at its discretion, order re-housing and/or damages as in option A.
(Summary paragraph 154)
188. We invite views on whether option A or option B is to be preferred. (CP paragraph
13.56)
189. We invite views on whether local authorities and registered social landlords should
be required to produce to the court a document setting out either what alternative
steps have been taken to deal with the anti social behaviour, or, if none have been,
why it was appropriate in the particular case to proceed without taking such steps.
(CP paragraph 13.59; Summary paragraph 157)
190. We also invite views as to whether failure by a landlord to provide the document or
failure to do so adequately should be a matter that the court is entitled to take into
account in coming to its decision, and could in addition be penalised in costs. (CP
paragraph 13.60; Summary paragraph 157)
191. We provisionally propose that the existing power of arrest in Housing Act 1996,
section 153 should be replaced with a power for the court to add a power of arrest
to any injunction for a social landlord to prevent a breach of a nuisance term
which amounted to serious housing related anti social behaviour. (CP paragraph
13.65; Summary paragraph 160)
192. We invite views on whether the power of arrest should be available in respect of
(1) only behaviour involving violence or the threat of violence;
(2) behaviour involving violence or the threat of violence, or which would
result in serious harm to another; or
(3) all breaches amounting to serious housing related anti social behaviour.
(CP paragraph 13.67; Summary paragraph 160)
44
193. We provisionally propose that where there is a breach of the compulsory anti social
behaviour term the judge would be required to exercise his or her discretion to
order possession unless certain circumstances obtain. Those circumstances would
be very limited, for instance that the breach was trivial or that circumstances had
changed such that it was highly unlikely that the behaviour would be repeated (for
instance where the person who was responsible for it had left the household). (CP
paragraph 13.71; Summary paragraph 159)
194. We provisionally propose that where the county court finds that an occupier has
breached an injunction restraining breach of the term of the agreement prohibiting
anti social behaviour, the court should have the power, on the application of the
local authority or registered social landlord, to order that the occupier be
(1) demoted to a type II (probationary) agreement, to which the summary
eviction procedure could then apply;
(2) relocated elsewhere; and either demoted as in (1) above or offered
supported housing; or
(3) immediately evicted, if it is reasonable to do so. (CP paragraph 13.76;
Summary paragraph 161)
195. We provisionally propose that, where an occupier is demoted under one of the
orders referred to in paragraph 194(1) or (2) above, the occupier would be
promoted back to a type I agreement if:
(1) the landlord chooses to do so;
(2) the court so orders, on the application of the occupier after a certain time
has elapsed; or
(3) a certain period of time elapses. (CP paragraph 13.79; Summary
paragraph 162)
196. We invite views on the appropriate periods in paragraphs (2) and (3) above, but
provisionally suggest six months for the former and two years for the latter. (CP
paragraph 13.80)
197. We provisionally propose that, where an occupier is relocated under the order
referred to in paragraph 194 (2), the alternative accommodation should be suitable
as defined in sections 206 and 210 of the Housing Act 1996, that is the landlord
must have regard to the law governing unfitness, overcrowding and houses in
multiple occupation, and the accommodation should also be affordable by the
occupier and not put the occupier at risk of physical violence or racial harassment.
The landlord should not be restricted as to its location. (CP paragraph 13.83)
198. We provisionally propose that where the anti social behaviour orders can be
certified as including a finding that the conduct of the occupier included behaviour
within our concept of serious housing-related anti social behaviour (paragraph 183
above) then a local authority or registered social landlord would be able to choose
to take breach proceedings in the county court, which would be able make an
order to transfer, demote or (subject to reasonableness) evict the occupier, once
breach is established. The court would then be empowered to commit the occupier
45
to the magistrates’ court or the Crown Court for sentence for breach of the order.
(CP paragraph 13.88)
199. As an alternative to the provisional proposal above, we provisionally propose that
the county court should be given jurisdiction to make housing related anti social
behaviour orders. (CP paragraph 13.90; Summary paragraph 165)
PART XIV: MAPPING EXISTING AGREEMENTS ONTO THE NEW REGIME
Secure tenancies and fully assured tenancies let by registered social
landlords
200. We would be grateful for information particularly from registered social landlords
about the proportion of fully assured tenancies to which ground 8 in reality applies,
because its use is not pre-empted by either an agreement or a policy not to use it.
(CP paragraph 14.5)
201. We provisionally propose that, if the option to require local authorities and
registered social landlords generally to use type I agreements is adopted, then
existing local authority secure tenancies and registered social landlord fully assured
tenancies should be converted into type I agreements. (CP paragraph 14.9;
Summary paragraph 167)
202. We provisionally propose that, if the option to allow local authorities and registered
social landlords a free choice between type I and type II agreements is adopted,
(1) existing local authority tenan cies should become type I agreements; and
(2) registered social landlords should be required to choose whether to give
their occupiers, as a minimum, an enhanced type II agreement which does
not contain provision for the landlord to gain possession on a notice-only
basis, or a type I agreement. (CP paragraph 14.14; Summary paragraph
168)
Other local authority and registered social landlord tenants
203. We provisionally propose that tenancies and licences granted by local authorities
and registered social landlords which are not presently covered by one of the
statutory schemes (excluding the Protection from Eviction Act 1977) should be
converted into type II tenancies, or remain outside the scheme, according to their
treatment in Part IX above. (CP paragraph 14.16; Summary paragraph 169)
Private fully assured tenancies
204. We provisionally propose that fully assured tenancies, other than those granted by
registered social landlords, should convert into enhanced type II agreements,
which do not contain provision for the landlord to gain possession on the notice-
only ground. (CP paragraph 14.18; Summary paragraph 170)
Assured shorthold tenancies
205. We provisionally propose that assured shorthold tenancies should convert into type
II agreements, the specific terms of the old tenancy becoming terms of the new
agreement. (CP paragraph 14.21; Summary paragraph 171)
46
Safeguarding the terms of the old tenancy
206. We ask for views on whether there should be an addition to the general
requirement for writing in relation to converted tenancies, such that the written
agreement should have appended to it the written agreement constituting the old
tenancy, if there was one. (CP paragraph 14.23; Summary paragraph 173)
207. In the alternative, we ask for view on whether the obligation should be for the
landlord to provide the core and compulsory terms under the new scheme,
together with a copy of the old agreement, with a statutory provision that the terms
of the old agreement should apply to all matters not covered by the core and
compulsory terms. (CP paragraph 14.24; Summary paragraph 173)
208. In either case, should the sanctions for failure by the landlord to provide a copy to
the tenant apply in relation to the old agreement? (Paragraph 14.25; Summary
paragraph 173)
Rent Act protected tenancies
209. We ask for information as to the continued existence of protected shorthold
tenancies. (CP paragraph 14.36)
210. We provisionally propose that, subject to the preservation of the fair rent system, it
would be desirable to convert Rent Act protected tenancies into type I agreements.
(CP paragraph 14.43; Summary paragraph 172)
The transition to the new scheme
211. We provisionally propose that the scheme be introduced as a single exercise, rather
than through a staged programme of change. (CP paragraph 14.48; Summary
paragraph 174)
47
Related docs
