Included in this Bulletin... Housing Act 2004, ASBOS, Housing Act 2004

As part of the ongoing campaign against anti-social behaviour a number of the provisions contained in the Housing Act 2004 are now in force.

Introductory Tenancies - Landlords now have the power to extend the trial period of Introductory Tenancies by up to six months. The landlord has to serve a notice of extension on the tenant at least eight weeks before the end of the tenancy. The period of the tenancy is extended if the tenant does not request a review of the decision or, if he does, and the review confirms the decision to extend the trial period.

The power to extend the trial period only applies to tenancies that commenced after s.179 came into force on 6 June 2005.

Suspension of the Right to Mutual Exchange - landlords can block applications for mutual exchange on grounds of anti-social behaviour. Under s.92 of the 1985 Act tenants of social landlords have the right to exchange homes by assigning their tenancies to one another. The landlord can only object on one of the grounds set out in Schedule 3. New Ground 2A allows landlords to object if court orders or applications for court orders have been made as a result of anti-social behaviour by either of the parties to the proposed assignment or someone living with them. The orders include: suspended possession orders on nuisance or ASB grounds; demotion orders; ASB injunctions and ASBOs.

Suspension of the Right to Buy - landlords can refuse to grant anti-social tenants the Right to Buy. In the past action against nuisance tenants has been frustrated by tenants who exercise the Right to Buy. Under the new s.121A the court can make an order suspending the Right to Buy because of anti-social behaviour. An order can be made if the court is satisfied that the tenant or someone living with him or visiting the property has engaged in or threatened to engage in anti-social behaviour and it is reasonable to make the order. The order suspends the Right to Buy for the duration of the order. The landlord’s obligation to complete a sale is suspended.

Disclosure of Information - The existing restraints on providing landlords with information about the anti-social behaviour of its tenants have been relaxed. Landlords can now ask for and expect to receive information from other agencies. S.194 of the Housing Act 2004 enables someone to provide relevant information about anti-social behaviour to a landlord of a secure tenant so that it can decide whether or not to consent to a mutual exchange or a Right to Buy to go ahead.

Right to Buy Information

Another new measure of the Housing Act 2004 now in force requires landlords to provide secure tenants with information to help them decide whether to exercise the Right to Buy. Such landlords have to supply “information to tenants on the responsibilities and consequences of being a home owner”. This goes somewhere towards redressing the balance and countering the persuasive claims by brokers and others about the unqualified benefits of buying your house. Too many tenants have been persuaded to take on mortgages that they can’t afford by brokers only too ready to charge them large commissions for the privilege.

Such a document had to be published within two months of s.189 coming into force as it did on 26 July 2005. So by the end of September landlords should have supplied each of its tenants with a copy of its document and now must give every new tenant a copy of the information at the start of a tenancy and every five years thereafter.

Protocol for Rent Arrears and Possession

The Civil Justice Council has published a draft of a pre-action protocol for possession claims based on rent arrears – find it at the Civil Justice Council webite.

While it was primarily designed for social landlords the private sector will also be expected to comply with the protocol. The aim is to encourage more contact between the parties and to make possession proceedings a last resort. The main points of the protocol:

• The landlord will contact the tenant as soon as arrears arise to discuss the cause of the problem, financial circumstances, entitlement to benefits and repayment of arrears
• The landlord and tenant will try to agree a reasonable and affordable sum for the tenant to pay off the arrears
• The tenant will be given regular copies of the rent statement and the landlord will assist with claims for housing benefit
• Proceedings should not be issued if the tenant can show eligibility for housing benefit and produce evidence that a claim has been made to the council and if the tenant pays other sums due not covered by housing benefit
• If the tenant keeps to the agreement to pay off the arrears then the landlord should not issue proceedings.

The ODPM has published a good practice guide to social landlords: Improving the Effectiveness of Rent Arrears Management. This is available at www.odpm.gov.uk.

Essentially the protocol sets out the good practice that many landlords are already following. Anyone involved in the frustrating task of recovering rent arrears will know how difficult it is to get a possession order even in the worst cases. The question is will tenants act any differently than they do now? The rather cynical answer is that they will still rely on the inertia of the system. Will courts be more ready to make anything more than a suspended possession order even if the landlord has jumped through the necessary hoops?

Problems with Housing Benefit

It is not unusual in possession proceedings for the tenant to ask for an adjournment because of problems with housing benefit. In general courts have been sympathetic to tenants recognising the failings of the benefit system. This was the situation in North British Housing Association v Mathews [2004] 1 EGLR. 3. The tenants said that their inability to pay the rent was caused by the unjustified failure of the council to pay them housing benefit. Possession was claimed on the mandatory Ground 8.

The Court of Appeal ruled that the practice of adjourning possession hearings to allow the tenant to resolve housing benefit problems was “impermissible”. It said that adjournments could only be made if particular circumstances applied; procedural reasons, for example listing problems or the absence of the judge; where there is a substantive defence or in exceptional circumstances – the court found that a failure of the housing benefit system was not exceptional.

Although this case was based on Ground 8 the same principles could reasonably be advanced when other grounds are being used. The court could go ahead and make a suspended order still giving the tenant the opportunity to sort out any claim for benefit.

But remember the draft protocol and the current guidance from the Housing Corporation to landlords to make every effort to establish effective relations with housing benefit departments and to make direct contact with them before taking enforcement action.

Possession Warrants and Housing Benefit

Once an eviction has taken place the court has no power to suspend or stay a possession order or extend time or allow time for payment by instalments. Further, the court has no power to suspend, stay or set aside a possession warrant. The only course for a tenant is to apply to set aside the possession order itself or to set aside the warrant on grounds that it has been obtained by fraud or abuse of process or oppression.

In Circle 33 Housing Trust v Ellis [2005] there was an appeal against a decision not to set aside a warrant after it had been executed. It was a term of the tenancy agreement that the landlord would make every effort to make direct contact with the housing benefit department before taking enforcement action. This reflects Housing Corporation guidance. The landlord made no effort to find out why housing benefit had ceased before going ahead with the warrant. On appeal from the district judge, he court held that this conduct amounted to oppression and set aside the warrant and reinstated the tenant. However, the Court of Appeal (23/9/2005) reversed this decision and upheld the original judgement. The judge had been wrong to take the view that the landlord was required to do more than it had done. The judge should also have addressed the question of what would have happened if the landlord had done what the judge thought that it should have done. The answer to both questions was nothing as both the housing benefits department and the landlord were dependant on the tenant providing certain information.

Oppression

Crutes recently acted for a landlord faced with an application alleging oppression on the part of the court staff. The tenant had obtained advice from the CAB who had prepared an application for her to suspend the possession warrant. She went to the court but when told that she would have to wait before being seen she left and did not go back even though there were a few more days until the warrant was to be executed. After the eviction took place the tenant took further advice from the local Law Centre.

In Hammersmith and Fulham LBC v Hill (1994) 27 HLR 368, the Court of Appeal held that there was a case of oppression where court staff had provided incorrect information to a tenant. She had gone in to the court office and been told that no warrant had been issued when in fact it had. The alleged oppression does not have to be committed by a party to the proceedings, as in this case, it can be on the part of a court clerk. In the case above there was no evidence of any conduct that could have amounted to oppression and the application was dismissed. Care should always be taken to ensure that tenants are dealt with fairly and properly and that they are given correct information particularly when their home is at risk.

Housing Management Advice Line

Crutes is offering a new service for landlords. For a fixed annual fee we will provide you with general advice on housing management issues. Instructions may be given orally over the telephone or alternatively, by email. We will deal with any request for advice as soon as possible and at the latest by the end of the next working day. If you wish, we will confirm our advice in writing by email.

The Advice Line covers action to enforce the tenancy agreement. For example, we can provide advice about the preparation of a Notice Seeking Possession, about the grounds for possession and evidence needed to support such a claim. Where you have already issued court proceedings, perhaps to recover rent arrears, we can provide advice about court procedures and give practical guidance. Other issues might include questions about the landlord’s obligations to carry out repairs, obtaining access to inspect gas appliances or abandoned goods. The range of issues covered by the Advice Line is very wide.

If you are interested in this new service please contact Paul Forster on 01228 552 631 or email Paul at paul.forster@crutes.co.uk, to discuss your needs. The annual fee will depend upon the scope of advice required and the size of your housing stock.

If you would like further information on our housing unit, or any other topics covered in this newsletter, please contact Paul on the contact details above.

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