Lunch and Learn 2013 A Year of Changes CIH June 2013 Gail Sykes, - - PowerPoint PPT Presentation

Lunch and Learn 2013 – A Year of Changes

CIH June 2013

Gail Sykes, Partner

Tel: 01733 888794 Email: gail.sykes@buckles-law.co.uk www.buckles-law.co.uk

Succession and Mutual Exchange following the Localism Act

Mutual exchanges

• Traditionally achieved by reciprocal deeds of

assignment

• S158 Localism Act provides for surrender

and re-grant of tenancies where one pre 1 April 2012 secure or assured tenant is exchanging with a fixed term tenant

• Exceptions include pre 1 April 2012 secure or

assured tenants exchanging with those fixed term tenants occupying at an affordable or intermediate rent

Mutual exchanges

Schedule 14 of the Localism Act 2011 provides grounds for refusal of surrender and re-grant these include:

• Rent arrears
• Breach of tenancy
• A possession order obtained or

proceedings begun

• Under-occupation

Mutual exchanges

May result in:

• Loss of security of tenure
• Loss of social rent
• Reduced succession rights

Or (for those playing a tactical game)

• Greater security of tenure or a larger fixed

term

• Better succession rights
• Social rent

Mutual exchanges

How would you proceed with?

• An exchange between one assured tenant of a housing

association (tenancy commenced 5 May 2012) and a secure tenant (tenancy commenced 3 June 2002)

• A secure tenant (tenancy commenced 3 December

2006) and a fixed term tenant at an affordable rent (tenancy commenced 10 October 2012)

• An assured tenant (tenancy commenced 3 March

2003) and a flexible tenant (tenancy commenced 01 February 2013)

• A secure tenant (tenancy commenced 7 November

2012) and a flexible tenant (tenancy commenced 4 September 2012)

Former tenancy arrears

• Making payment of former arrears a

condition of a new tenancy

• In

theory enforceable as Ground 1 (secure)/Ground 12 (assured) breach of term of tenancy

• Concerns over how courts will actually deal

with this when lenient with tenant arrears with suspensions and chances given anyway!

Succession

Local authority – secure tenancy Pre 1 April 2012 agreements

• Succession to spouse/civil partner etc. living

with the tenant at the date of death

• Succession to wide group of family members

defined in s113 Housing Act 1985 (provided they occupied as principal or only home for at least 12 months prior to the tenant’s death)

Succession

Post 1 April 2012 Local Authority agreements

• Succession

to spouse/civil partner etc. unchanged

• Succession to family members only if

provided in the tenancy agreement

Succession

Housing Associations – assured tenancy Pre 1 April 2012 agreements

• Succession to spouse/civil partner etc. living

with tenant at the date of death

• Contractual succession to any wider group

defined in the agreement and in occupation as principal or only home at least 12 months prior to the tenants’ death (tenancy does not automatically vest in successor)

Succession

Housing Association-Post 1 April 2012 Agreements

• Succession to spouse/civil partner etc.

unchanged

• Where the agreement provides for a wider

group of successors the tenancy will automatically vest – no need for a new agreement)

Cases where succession is contested

• The burden of proof is on the would-be

successor Key cases:

• Islington London Borough Council v Freeman

[2009]

• City of Westminster v Peart [1999]
• Southern Housing Group v Nutting [2005]

Succession and under-

• ccupancy

Ground 16/Ground 15A

• The court must take into account the age of

the successor, the period during which they were in occupation and any financial support provided to the tenant

• The date the court will consider under-
• ccupation/suitable alternative

accommodation is the date of the hearing

• The Newport v Charles [2008] trap has

been remedied

The Draft Anti- Social Behaviour Crime and Policing Bill

The Draft Anti-Social Behaviour Crime and Policing Bill

• Published 13 December 2012
• Has been considered by the Home Affairs

Select Committee – which reported on 15 February 2013

• Further amendments likely before

consideration by Parliament 2013/2014

• Commencement 2015?

The Draft Anti-Social Behaviour Crime and Policing Bill - mandatory possession

• NOSP 28 days notice to be served within a

year if conviction/breach

• Five conditions for possession
• Review procedure will be required –

(proportionality challenges likely)

• 1. Conviction of serious offence
• 2. Breach of injunction
• 3. Breach of criminal behaviour order
• 4. Closure order
• 5. Breach of noise abatement notice

The Draft Anti-Social Behaviour Crime and Policing Bill - mandatory possession

• Inter-agency communication – convictions
• Injunctions – breach must have been proved

to the court

• More incentive to defend committal

proceedings for breach of injunction or to deny serious offences

• Judges likely to scrutinise injunction terms

very carefully

• Undertakings less attractive to housing

providers but more attractive to Judges

The Draft Anti-Social Behaviour Crime and Policing Bill - mandatory possession

The Draft Anti-Social Behaviour Bill Crime and Policing Bill- new discretionary ground for possession

• The tenant, or a person residing in the

dwellinghouse (in England) has been convicted of an offence which took place in a riot in the UK

• A discretionary ground so that the judicial

approach to possession will be interesting

Injunctions to Prevent Nuisance and Annoyance (IPNA’s)

The test:

• Conduct capable of causing a nuisance and

annoyance; and

• It is just and equitable to grant the injunction
• Without notice injunctions, powers of arrest

and exclusion orders still available

Injunctions to Prevent Nuisance and Annoyance (IPNA’s)

• Available against those over 10 (Youth Court

jurisdiction)

• Available to a wider number of agencies

(Police, Environmental Health)

• Scope may be limited with a proportionality

test or the need to show that conduct was intentional or reckless

• An attempt to define housing management

functions

Case Law Update

Recent ASB Case Law

Southend Borough Council v Armour [2012]

• Termination of introductory tenancy
• No further ASB between service of notice and

trial

• Should the period of good behaviour be taken

into account?

• Delays (at least in part caused by the

defendant’s legal team)

Recent ASB Case Law

Stafford v Camden LBC [2012]

• Considered whether LA must serve a fresh

section 128 notice when previous notice relied upon to issue proceedings

• Review panel suggested alternative to

possession

• CA held landlord must give unequivocal

confirmation of original decision

• Be aware of danger of giving "second

chance"

Recent ASB Case Law

Wandsworth LBC v Maggott [2013]

• ASB not found to be “in the locality” of Mr

Maggott’s home

• The landlord could not rely upon tenants’

ASB covenants which were too wide

• If the Judge was wrong – it was not

reasonable to make an order anyway!

Court’s discretion to suspend possession

• rder…

Birmingham City Council v Ashton [2012] CA

• Sentenced for affray and possession of weapon –

abusive, threatening and brandishing samurai sword

• Trial judge suspended possession order on terms
• Appealed to CA
• CA held onus on T to provide cogent evidence

that ASB would not recur

Inconsistent evidence at trial

Brent LBC v Tudor [2013] EWCA Civ 157

• Claim for possession under Ground 16
• Inconsistent evidence from witnesses
• At first instance possession claim dismissed
• L appealed to CA on basis judgment was not

clearly structured

• CA said no duty on judge to deal with every

argument put forward by Counsel

Breach of Article 8 in denying succession… Affinity Sutton v Cooper [2012]

• Tenancy agreement required written notice
• f claim to succeed from would-be successor

within 6 months of death

• Landlord aware of son wanting to succeed

but did not request written notice. After 6 months issued NTQ and possession proceedings

• Claim dismissed – waived right to insist on

written notice

More Nuisance Behaviour!

Fareham Borough Council v Miller [March 2013]

• Non-secure tenancy
• Service of notice to quit followed by a

decision to give Mr Miller “another chance”

• Continued ASB
• Notice to quit had not been waived and Article

8 ECHR not engaged

“Tenant Improvements”

Hannon v Hillingdon Homes [2012]

• Defective Premises Act 1972 claim by injured

sub-contractor

• The responsibility for a barrister removed by

the tenants

• Constructive notice!

Squatters!

• New offence from 1 September 2012 under

LASPOA 2012

• A person is in a residential building as a

squatter and entered it as such

• Person knows or ought to have know they

were trespassing

• The person is living in the building or intends

to live there for a period

• For the majority of unauthorised occupiers – no

change!

Any questions?

?

Lunch and Learn 2013 – A Year of Changes

June 2013

Buckles Solicitors LLP | Grant House | 101 Bourges Boulevard | Peterborough | PE1 1NG | Telephone: 01733 888888 Buckles Solicitors LLP | 3 St Mary's Hill | Stamford | Lincs | PE9 2DW | Telephone: 01780 484570 www.buckles-law.co.uk enquiries@buckles-law.co.uk

Buckles Solicitors LLP is authorised and regulated by the Solicitors Regulation Authority Registered in England No OC311739.