#14789 - Example Conference Possession - BPC Property and Chancery

INTRODUCTION

Name and role

Purpose of conference

Agenda

AREAS OF QUESTIONING

Claim: Public Sector Tenancies/ Secure Tenancies

Single occupancy discount?

Applications for benefits?

Are the rents paid up to date?

Have there been any complaints from the neighbour/local authority?

How many people living at property?

Are there any redevelopment projects in the area?

Any notice of this given by the Council of such projects?

ADVICE

1. Law of Succession

One Succession

HA 1985

• In Birmingham CC v Walker,

HL held that where the first succession took place before the Housing Act 1985 or before its predecessor comes into force, that was not a succession for an assured tenancy. So the second tenants could succeed the tenant.

Husband and Wife has a tenancy and the husband died before the Housing Act 1980 – which was the predecessor to the Housing Act 1985. So the wife succeeded to the tenancy before secure tenancies were invented by HA 1980, and when she died much later, the son claims succession on death and the Council argued he was a second successor, thus he could not succeed. However, the Court held that he was the first successor because the wife had succeeded before HA 1980/5, before the concept of secure tenancies have come into force, the son was the first successor to a secure tenancy, so he could succeed.

2. Possession Proceedings

Secure Tenancies

• A tenancy is secure if:

• The landlord is a public landlord such as a local authority, housing action trust and certain types of housing cooperatives. For the full list, see s.80.

• The tenant is an individual who occupies the premises as his/her only or principal home (see Crawley BC v Sawyer): s.81.

Categories of Order

1. Order for possession (s83) which will not be granted unless the landlord follows the notice requirements stipulated in the s83 HA 1985 or the Court dispenses with them and the Court is satisfied that one (1) or more of the possession grounds in Schedule 2 HA 1985 is made out;

2. A demotion order under s.82A which terminates the secure tenancy if the Court finds there had been anti-social behaviour;

3. An order terminating a fixed term secure tenancy so that a periodic tenancy arises instead (s 82(3)).

The landlord can terminate the fixed term if there is a forfeiture clause or other termination clause in the tenancy agreement. However, statutory periodic tenancy would arise instead and the landlord would have to take possession on the statutory grounds to end the statutory periodic tenancies that arises.

Termination

In order to obtain possession, the Local Housing Authority must follow notice the provision of s83 of the 1985 Act (if they do not, the Court has no authority to jurisdiction to entertain the proceedings) and claim for forfeiture or re entry, as well as one (1) of the grounds for possession in Schedule 2.

A secure periodic tenancy, whether it was always periodic or has arisen after the end of the fixed term, cannot be terminated by notice to quit. The landlord can only obtain possession on one (1) of the grounds set out in Schedule 2 of the s84(1).

Grounds

• Grounds 1 – 8: the court may order possession if it thinks it reasonable

Ground 1: Rent Arrears

Ground 2: Nuisance, annoyance or criminal conviction or illegal or immoral

Ground 2A: Domestic Violence

Ground 4: Ill treatment of Furniture

• Grounds 9 – 11: the court may order possession if suitable alternative accommodation is available

Ground 9: Dwelling house is overcrowded

Ground 10: Landlord wishes to demolish or redevelop property

Ground 10A: Redevelopment scheme

Ground 11: Where the landlord is a charity, and the tenants continued occupation would conflict with the object of the charity.

The character of the property is not taken into account

• Grounds 12 – 16: the court may order possession if it considers it reasonable and suitable alternative accommodation is available

Ground 12: The house is required for a new employee

Ground 13: The house is required for a physically disabled person.

Ground 14: The house is required by a registered social landlord or housing trust for a person in especially difficult circumstances

Ground 15: The house is required for people with special needs

Ground 15A: The “under occupation” ground

The tenancy vested in the tenant by statutory succession as a member of the family and the house is too large for the tenant

See in particular Grounds 15A and 16 (amendments made by Localism Act 2011 S.162 (2)). This is where a member of the family has succeeded to the Council tenancy on the Council tenants death, the property is too big for the member of the family – they do not need such a big property. That is a ground for possession under Ground 15A (ex-Ground 16).

See also Wandsworth LBC v Randall on under occupation ground. It was held that in deciding whether the house is too big for the tenant, it would be looked at during the date of the hearing rather than at the date of succession.

Reasonably requirement –

How long?

Commitment to property?

Supported property financially?

Permanent destabilisation?

Are the rents paid up to date?

Have there been any complaints from the neighbour/local authority?

How many people living at property?

Are there any redevelopment projects in the area?

Any notice of this given by the Council of such projects?

3. Claimant’s Case

Cs refusal for succession

1. There had already been one succession from XX;

2. D not residing in house during 12 months preceding XX death; and

3. House was not Ds only or principal home at the time of XX death.

Notice to quit

• Served on executors on 18^th August 2016

• C determined second tenancy on 22^nd December 2016 at the end of a period of one week which expired next after the expiration of 4 weeks following service of the notice

• D informed that proceedings might be instituted against him after 15 January 2017

4. Defendant’s Case

Defences to current proceedings/ Alternatively, C’s claim under HA 1985

As the first succession between XX occurred in 1992, before the commencement of the Housing Act 1980/5 – the Housing Act 1985 does not apply to the succession.

Under s87, when the secure tenant dies, the tenancy automatically passes to their spouse or, if there is no spouse, to another member of the tenant’s family, if the spouse or member of the family was, at the time of death, occupying the house as their only or principal home.

Also, a member of the family other than a spouse will only qualify if they have been residing with the tenant for 12 months before the tenant’s death.

In Peabody Donation Fund Governors v Grant; Freeman v Islington and Mayor & Burgesses of the London Borough of Islington v Boyle – ‘Residing with’ was defined.

To reside with, you must make it your home, you must intend to return there – sufficient connection with the home.

• Grounds 12 – 16: the court may order possession if it considers it reasonable and suitable alternative accommodation is available

Ground 15A: The “under occupation” ground

The tenancy vested in the tenant by statutory succession as a member of the family and the house is too large for the tenant

See in particular Grounds 15A and 16 (amendments made by Localism Act 2011 S.162 (2)). This is where a member of the family has succeeded to the Council tenancy on the Council tenants death, the property is too big for the member of the family – they do not need such a big property. That is a ground for possession under Ground 15A (ex-Ground 16).

See also Wandsworth LBC v Randall on underoccupation ground. It was held that in deciding whether the house is too big for the tenant, it would be looked at during the date of the hearing rather than at the date of succession.

Art 8 ECHR and/or other public law grounds

Article 8 – Right to respect for private...