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 consultees 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 theresponses, 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
15.1
We ask for information about the regulatory impact of our
provisional proposals in this paper. (paragraph 1.98)
Part V: The
impact of human rights law
Human rights and housing law: some conclusions
15.2
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. (Paragraph 5.77)
Part VI: The
consumer approach: focussing on the agreement
The need for a contract
15.3
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. (Paragraph 6.6)
15.4
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. (Paragraph 6.8)
The application of the law on unfair contract terms to housing agreements
15.5
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. (Paragraph 6.45)
15.6
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.
(Paragraph 6.50)
15.7
We provisionally propose that the definition of core terms
should be left to consumer legislation rather than being included in a Housing
Act. (Paragraph 6.53)
15.8
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. (Paragraph 6.55)
The need for a written agreement
15.9
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. (Paragraph 6.66)
15.10
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. (Paragraph 6.70)
15.11
We provisionally propose that all agreements covered by our new
scheme should be put into a written form. (Paragraph 6.74)
15.12
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. (Paragraph 6.75)
15.13
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. (Paragraph
6.82)
15.14
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. (Paragraph 6.85)
15.15
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. (Paragraph
6.88)
The terms of the agreement
15.16
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. (Paragraph
6.90)
15.17
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. (Paragraph 6.94)
15.18
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. (Paragraph 6.95)
15.19
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. (Paragraph 6.97)
15.20
We invite consultees’ views on whether it would be appropriate
to require landlords to provide occupiers with summaries of their agreements.
(Paragraph 6.100)
15.21
We provisionally propose that the core terms should be
included in the written agreement. (Paragraph 6.102)
15.22
We invite views on whether other terms, for example the amount
of any deposit, should be included as a core term. (Paragraph 6.103)
15.23
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. (Paragraph 6.110)
15.24
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. (Paragraph 6.117)
15.25
We invite views on the issues which should properly be
prescribed in Part C of the agreement. (Paragraph 6.118)
15.26
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. (Paragraph 6.121)
Sanctions
15.27
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. (Paragraph 6.126)
15.28
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)
15.29
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. (Paragraph 6.133)
15.30
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. (Paragraph 6.134)
15.31
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. (Paragraph 6.135)
15.32
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. (Paragraph 6.137)
15.33
We invite views as to whether the threat of potential criminal
proceedings in such circumstances might constitute a useful spur to compliance.
(Paragraph 6.139)
Variation of agreements
15.34
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.
(Paragraph 6.148)
15.35
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.
(Paragraph 6.155)
15.36
We provisionally propose that, to be enforceable, any
variation to the agreement must be notified in writing by the landlord to the
occupier. (Paragraph 6.157)
15.37
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. (Paragraph 6.158)
Ensuring respect for the contract
15.38
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? (Paragraph 6.173)
15.39
In the alternative, we invite views on whether consultees
believe that a better approach would be to rely on promoting good practice.
(Paragraph 6.175)
Alternative dispute resolution
15.40
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. (Paragraph
6.184)
15.41
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. (Paragraph 6.185)
Part VII: The
type I agreement: the security regime
The type I agreement
15.42
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. (Paragraph 7.10)
15.43
We invites views on the question whether type I agreements
should only be able to be created on a periodic basis. (Paragraph 7.16)
Court orders for possession: discretionary or mandatory?
15.44
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. (Paragraph 7.26)
15.45
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 atype Iagreement. (Paragraph 7.44)
15.46
We
invite views
as to whether lenders have found themselves able to take eviction proceedings
themselves on ground 2. (Paragraph 7.49)
15.47
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. (Paragraph 7.50)
15.48
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. (Paragraph 7.52)
15.49
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. (Paragraph 7.53)
Security of tenure: the terms in the agreement
15.50
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. (Paragraph 7.66)
15.51
We
seek
information on whether this ground is used in practice, whether it is seen as
useful and what drawbacks are associated with it.(Paragraph 7.72)
15.52
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. (Paragraph
7.74)
15.53
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. (Paragraph 7.76)
15.54
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. (Paragraph 7.81)
15.55
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.
(Paragraph 7.82)
15.56
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. (Paragraph 7.86)
The “ghost” grounds of possession
15.57
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. (Paragraph 7.91)
15.58
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. (Paragraph 7.92)
15.59
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. (Paragraph 7.93)
15.60
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. (Paragraph
7.95)
Part VIII: The
II agreement: the security regime
The type II agreement
15.61
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. (Paragraph 8.8)
The court’s powers to order possession
15.62
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. (Paragraph 8.12)
15.63
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. (Paragraph 8.14)
15.64
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)
15.1
We would particularly welcome evidence about the
benefit tenants currently derive from the six months’ moratorium in the assured
shorthold tenancy.
15.1
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15.65
xxx (Paragraph 8.28)
Security of tenure: the terms in the agreement
15.66
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. (Paragraph 8.31)
15.67
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 of having issued an appropriate notice to the
occupier. (Paragraph 8.34)
15.68
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. (Paragraph 8.37)
15.69
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.
(paragraph 8.38)
15.70
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. (Paragraph 8.41)
15.71
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. (Paragraph 8.46)
15.72
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. (Paragraph 8.49)
15.73
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. (Paragraph 8.53)
15.74
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. (Paragraph 8.54)
15.75
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.
(Paragraph 8.59)
Break clauses
15.76
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. (Paragraph 8.62)
15.77
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. (Paragraph 8.65)
15.78
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. (Paragraph 8.67)
Expiry of fixed term tenancies
15.79
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.
(Paragraph 8.71)
15.80
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. (Paragraph 8.75)
15.81
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. (Paragraph 8.76)
15.82
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. (Paragraph 8.77)
15.83
We provisionally propose that the terms of the original fixed
term agreement should themselves set out the effect of these proposals.
(Paragraph 8.78)
Part IX: The
scope of the scheme
The relationship with other statutory schemes
15.84
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.
(Paragraph 9.11)
15.85
We provisionally propose that licensed premises be excluded
from our scheme even when such premises include residential premises.
(Paragraph 9.13)
15.86
We provisionally propose that our proposals should not affect
property subject to the Agricultural Tenancies Act 1995 or the Agricultural
Holdings Act 1986. (Paragraph 9.15)
15.87
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. (Paragraph 9.17)
15.88
We provisionally propose that leases granted for a term
certain exceeding 21 years should be excluded from our proposed statutory
scheme. (Paragraph 9.20)
Should the lease-licence distinction be retained as a test for determining
the scope of the scheme?
15.89
We provisionally propose that the scope of our statutory
scheme should be determined independently of the lease-licence distinction.
(Paragraph 9.42)
15.90
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. (Paragraph 9.47)
15.91
We provisionally propose excluding hospitals defined under
National Health Service Act 1977. (Paragraph 9.49)
15.92
We provisionally propose excluding military barracks from our
proposed scheme of statutory regulation. (Paragraph 9.51)
15.93
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. (Paragraph 9.53)
15.94
We provisionally propose that our proposed statutory scheme
should explicitly include contracts for renting to those under 18 years of age.
(Paragraph 9.57)
Other definitional issues affecting the scope of the scheme
15.95
We provisionally propose that our scheme apply to contracts
which contain a requirement for the payment of “rent”. (Paragraph 9.62)
15.96
We invite views on whether it is necessary to provide a
definition of rent. (Paragraph 9.63)
15.97
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. (Paragraph 9.66)
15.98
We provisionally propose that there should be no upper limit
on the amount of rent payable under the contract. (Paragraph 9.68)
15.99
We provisionally propose that agreements at no rent would fall
outside our proposed scheme. (Paragraph 9.70)
15.100
We provisionally propose that the word “home” be used in
preference to the word “dwelling”. (Paragraph 9.74)
15.101
We provisionally recommend that the scheme should cover any
agreement that confers a right to occupy premises as a home. (Paragraph 9.78)
15.102
We provisionally propose that the scheme should not be limited
to the occupier’s “only or principal” home. (Paragraph 9.82)
15.103
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). (Paragraph 9.89)
15.104
We provisionally propose that the definition of the agreements
covered by our proposed scheme should not include specific reference to
occupation by an individual. (Paragraph 9.91)
Statutorily excluded categories of agreement
15.105
We propose that holiday lets should be excluded both from our proposed
statutory scheme and from the Protection from Eviction Act 1977.
(Paragraph 9.95)
15.106
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.
(Paragraph 9.97)
15.107
We provisionally propose that the residents of almshouses
should not be excluded from our proposed statutory scheme. (Paragraph 9.100)
15.108
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. (Paragraph
9.103)
15.109
We further provisionally propose that the definition of
“hostel” inthe
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.
(Paragraph 9.104)
15.110
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. (Paragraph 9.106)
15.111
If there is a moratorium, we provisionally propose that
occupiers of resident landlords be excluded from our proposed scheme.
(Paragraph 9.110)
15.112
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. (Paragraph
9.112)
15.113
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. (Paragraph 9.114)
15.114
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. (Paragraph 9.117)
15.115
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.
(Paragraph 9.119)
15.116
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. (Paragraph 9.121)
15.117
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. (Paragraph
9.124)
15.118
If there is a moratorium, we provisionally propose that
accommodation provided for asylum seekers should fall outside our proposed
statutory scheme. (Paragraph 9.126)
15.119
We invite views on whether asylum seekers should no longer be
excluded from the Protection from Eviction Act 1977. (Paragraph 9.128)
15.120
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.
(Paragraph 9.130)
15.121
We provisionally propose that all service occupancies should
be protected by the Protection from Eviction Act 1977. (Paragraph 9.132)
15.122
If there is no moratorium, we provisionally propose that anagreement 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. (Paragraph 9.138)
15.123
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). (Paragraph 9.139)
15.124
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. (Paragraph
9.141)
15.125
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. (Paragraph 9.145)
15.126
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. (Paragraph 9.151)
15.127
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. (Paragraph 9.154)
15.128
If there is no moratorium, we invite views on whether accommodation
provided for asylum seekers should be on the basis of type II agreements.
(Paragraph 9.157)
15.129
If there is no moratorium, we provisionally propose that service occupancies should come
within the scope of our scheme as type II agreements. (Paragraph 9.161)
Crown tenancies
15.130
We provisionally propose that Crown tenancies should no longer
be excluded from statutory regulation. (Paragraph 9.166)
Part X:
Terminating Agreements
Due process – the notice requirements
15.131
We provisionally propose that a landlord should be required to
obtain a court order for possession against any occupier covered by our
proposed scheme. (Paragraph 10.7)
15.132
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.
(Paragraph 10.10)
15.133
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. (Paragraph 10.11)
15.134
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. (Paragraph 10.14)
15.135
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. (Paragraph 10.16)
15.136
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. (Paragraph 10.18)
15.137
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. (Paragraph 10.24)
15.138
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. (Paragraph 10.25)
15.139
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. (Paragraph 10.26)
15.140
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. (Paragraph 10.29)
15.141
We provisionally propose that a landlord’s notice should
include the date on which the notice becomes ineffective. (Paragraph 10.30)
15.142
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. (Paragraph 10.37)
15.143
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. (Paragraph 10.44)
15.144
We invite views whether a copy of the original agreement
should be attached to any landlord’s notice. (Paragraph 10.45)
15.145
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. (Paragraph 10.46)
15.146
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. (Paragraph 10.47)
Termination by the occupier
15.147
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.
(Paragraph 10.51)
15.148
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.
(Paragraph 10.55)
15.149
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 agreement should be deemed to
continue, subject to the occupier’s liability in damages for any losses
suffered by the landlord. (Paragraph 10.57)
15.150
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. (Paragraph 10.61)
15.151
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. (Paragraph
10.64)
Abandonment
15.152
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. (Paragraph 10.69)
Part XI: Using
the new agreements
Social landlords
15.153
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. (Paragraph 11.13)
15.154
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)). (Paragraph 11.14)
Exceptions
15.155
We provisionally propose that a general probationary agreement
be available to local authorities and registered social landlords. (Paragraph
11.26)
15.156
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
(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. (Paragraph 11.28)
15.157
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. (Paragraph 11.35)
15.158
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)
15.159
We invite views on whether the Housing Corporation should be
given powers to approve probationary agreement schemes for use by registered
social landlords. (Paragraph 11.39)
15.160
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. (Paragraph 11.43)
15.161
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.
(Paragraph 11.44)
15.162
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. (Paragraph 11.47)
15.163
We invite views on the other circumstances in which social landlords should be entitled to use type II
agreements. (Paragraph 11.53)
15.164
We provisionally proposeWe 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. (Paragraph 11.56)
Private
landlords
15.165
We provisionally proposeWe 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. (Paragraph 11.61)
15.166
We provisionally proposeWe provisionally propose that private landlords should able to grant type I agreements if they choose, but
should not be required to do so. (Paragraph 11.64)
15.167
We provisionally proposeWe provisionally propose that
agreements granted by private
landlords should be type II unless the landlord states that it is to be type I..
(Paragraph 11.67)
Part XII: The
powers of the courts
The exercise of discretion
15.168
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. (Paragraph
12.10)
15.169
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. (Paragraph 12.27)
15.170
We invite views on other factors that might be included in the
structured discretion. (Paragraph 12.28)
15.171
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. (Paragraph 12.32)
Rent arrears and suspended possession orders
15.172
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)
Enforcement
15.173
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)
15.174
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. (Paragraph 12.57)
15.175
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. (Paragraph 12.58)
Part XIII: Anti
social behaviour
Which landlords?
15.176
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. (Paragraph 13.18)
15.177
We invite views on whether unregistered housing associations
should have similar powers and duties. (Paragraph 13.19)
A general duty to deal with antisocial behaviour
15.178
We provisionally propose that a general duty should be imposed
on local authorities to take action against anti social behaviour. (Paragraph
13.30)
15.179
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. (Paragraph 13.31)
15.180
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. (Paragraph 13.32)
15.181
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 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. (Paragraph 13.34)
15.182
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). (Paragraph
13.36)
Dealing with serious anti social behaviour
15.183
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. (Paragraph 13.39)
15.184
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)
15.185
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). (Paragraph 13.55)
15.186
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
(b) compensatory
damages.
15.187
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.
15.188
We invite views on whether option A or option B is to be
preferred. (Paragraph 13.56)
15.189
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. (Paragraph 13.59)
15.190
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. (Paragraph 13.60)
15.191
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. (Paragraph 13.65)
15.192
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 breachesamounting
to serious housing related anti social behaviour.(Paragraph 13.67)
15.193
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). (Paragraph 13.71)
15.194
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. (Paragraph
13.76)
15.195
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. (Paragraph 13.79)
15.196
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. (Paragraph 13.80)
15.197
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. (Paragraph 13.83)
15.198
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 to the magistrates’ court or the Crown
Court for sentence for breach of the order. (Paragraph 13.88)
15.199
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. (Paragraph 13.90)
Part XIV:
Mapping existing agreements onto the new regime
Secure tenancies and fully assured tenancies let by registered social
landlords
15.200
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. (Paragraph 14.5)
15.201
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. (Paragraph 14.9)
15.202
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 tenancies 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 agreementwhich does not contain
provision for the landlord to gain
possession on a notice-only basis, or a type I agreement.
(Paragraph 14.14)
Other local authority and registered social landlord tenants
15.203
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. (Paragraph 14.16)
Private
fully assured tenancies
15.204
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.
(Paragraph 14.18)
Assured
shorthold tenancies
15.205
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. (Paragraph 14.21)
Safeguardingthe
terms of the old tenancy
15.206
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. (Paragraph 14.23)
15.207
In the alternative, we ask for view onwhether 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.
(Paragraph 14.24)
15.208
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)
Rent Act
protected tenancies
15.209
We ask for information as to the continued existence of
protected shorthold tenancies. (Paragraph 14.36)
15.210
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. (Paragraph 14.43)
The transition to the new scheme
15.211
We provisionally propose that the scheme be introduced as a
single exercise, rather than through a staged programme of change. (Paragraph
14.48)
