#5249 - Public Residential - Landlord and Tenant Law

Public Residential

A tenancy under which a swelling house is let as a separate dwelling is a secure tenancy at any time when the conditions in Housing Act 1985 s.80 (the landlord condition) and HA 1985 s.81 (the tenant condition) are satisfied. (HA 1985 s.79(1))

A tenancy

The scope of secure tenancies includes licenses as well as leases (HA 1985 s.79(3))

But a licensee will only be a secure tenant if they have exclusive possession (Westminster v. Clarke)

A former tenant who holds over with consent of the landlord authority after the secure tenancy has been terminated will not qualify for statutory protection (Burrows v. Brent)

A dwelling house let as a separate dwelling

Has the same meaning as in the HA 1988. But it excludes people who share living accommodation with other people as well.

A tenant who has exclusive possession of a room but share a kitchen or living room with others did not have premises let as a separate dwelling so not a secure tenant (Thompson v. Glasgow)

But the tenant does not need to be able to cook, he must merely be able to eat and sleep. People might want to go out and eat instead (Uratemp v. Collins)

At any time when

A letting can move into and out of secure tenancy status depending on whether the statutory conditions are met or cease to be met after commencement (Basingstoke v. Paice)

Landlord condition

The landlord must be a local authority, a development corporation or a housing action trust (HA 1985 s.80)

A housing association before 1989 was also covered by HA1985 s.80, and if the tenancy was granted prior to 1989 then the secure tenancy rules will still apply as the change was not retrospective.

Tenant condition

The tenant must be an individual, or joint tenants must all be individuals. The tenant, or at least one of joint tenants, must occupy the dwelling house as his only or principle home (HA 1985 s.81)

Where the secure tenancy is a subtenancy and the intermediate lease is terminated then the tenancy will cease to be secure even if the head landlord is also a public authority. A direct relationship of landlord and tenant must exist between the persons satisfying the landlord and the tenant condition (Lambeth v. Kay)

Where the tenant has held over then they can become a weekly tenant of the head landlord (Basingstoke v. Paice)

Statutory exclusions

HA 1985 Schedule 1 lists particular situation when a letting will not qualify as a secure tenancy.

• Para 1 – long leases, for a fixed term over 21 years or a perpetually renewable lease, are excluded

• Para 1A – introductory tenancies are excluded for the period of the introductory term. This will normally be 12 months but could be extended by 6 months provided 8 weeks notice is given.

• Para 2 – premises occupied in connection with council employment are excluded. The occupation must actually be required as a term in the employment contract.

If the defendant retires or ceases to be employed then a secure tenancy will not come into existence (Griffiths)

• Para 3 – where land has been acquired by the local authority for development but has been let on a temporary basis then these are excluded

• Para 4 – accommodation provided for homeless persons will not be secure for the first 12 months

• Para 5 – when a person comes to an area looking for work and is provided with accommodation by the local authority then this will not be a secure tenancy for the first 12 months provided the tenant is notified of para 5

• Para 6 – when a local authority uses privately owned property on a short term basis then this is not secure

• Para 7 – if the local authority provides accommodation for persons whilst work is carried out on their own homes then this will not be a secure tenancy

• Para 8 – agricultural holdings are excluded

• Para 9 – premises licensed for the sale of alcohol are excluded

• Para 10 – no security of tenure for lettings enabling a person to attend a course at an educational establishment provided the tenant is notified in writing prior to the start

• Para 11 – business tenancies are excluded

Mechanics of security of tenure under HA 1985

Where the original contractual tenancy is a periodic tenancy or a fixed term tenancy subject to determination by the landlord, the landlord may not bring the tenancy to an end except on one of the grounds in Schedule 2 and using statutory possession proceedings (HA 1985 s.82 (1))

Where the original contractual tenancy is a fixed term tenancy which can only end by effluxion of time then a statutory periodic tenancy will arise which can only be terminated using statutory possession proceedings and one of the grounds in Schedule 2 (HA 1985 s.86)

If a contractual tenancy has a provision for forfeiture then the court may not order possession on that basis. It may terminate the contractual tenancy but this will immediately be replaced by a statutory periodic tenancy under HA 1985 s.86 (HA 1985 s.82(3))

The statutory periodic tenancy may be terminated on the basis of the gorunds in Schedule 2 via possession proceedings (HA 1985 s.86)

The 2 sets of proceedings can be combined though, no need to go to court twice.

Prior to commencing possession proceedings the local authority must serve a s.83 notice on the tenant stating the grounds on which possession is being sought; that possessions may begin immediately AND the date when the landlords wants return of possession (HA 1985 s.83)

The court is able to dispense with the need for a s.83 notice if it would be equitable to do so.

The tolerated trespasser

When a possession order had been made then the secure tenancy ends on the date when the tenant is required to give up possession but the court may suspend execution of the order (HA 1985 s.82(2))

A tenant in breach of any condition attached to the suspension of the possession order will immediately become a trespasser whose presence is tolerated by the local authority (as they are generally prepared to allow more time for the tenant to try and pay).

The House of Lords recognised the status of the tolerated trespasser in Burrows v. Brent

But then the House of Lords sidestepped the problem in Knowsley Housing v. White to try and sidestep the problem

The law now creates replacement tenancies for the tolerated trespasser on the same terms as the previous tenancy, this prevents tolerated trespassers from arising now, and was made retroactive so the existing tolerated trespassers ceased to be such. (Housing & Regeneration Act 2008)

Statutory grounds for possession

All statutory ground for possession are in HA 1985 Schedule 2

In Part 1 an order for possession will be granted only if it would be reasonable to do so

• Ground 1 – unpaid rent

• Ground 2 – nuisance, harassment or illegal activity

• Ground 2A – domestic violence

• Ground 3 – deterioration of the dwelling due to neglect or default

• Ground 4 – deterioration of the furniture due to ill treatment

• Ground 5 – knowingly or recklessly inducing the tenancy by false statements

• Ground 6 – the tenancy was assigned under HA 1985 s.92 and a premium was paid

• Ground 7 – the dwelling is part of a building held by the landlord for purposes other than housing and the house was let because of employment but the tenant has been guilty of conduct such that it would not be right to allow for them to continue in residence

• Ground 8 – the tenant was given the tenancy during works on another property where she is a secure tenant. Those works are now complete and the accommodation is available

In Part 2 an order for possession may be made only if the court is satisfied that suitable alternative accommodation will be available for the tenant

• Ground 9 – the dwelling house is overcrowded (more than 2 people per room)

• Ground 10 – the landlord intends to demolish, reconstruct or carry out substantial works and cannot reasonably do so without obtaining possession

• Ground 10A – the dwelling house is in an area subject to a development and the landlord intends to dispose of the property in accordance with that scheme

In Part 3 and order for possession may only be granted if it is reasonable AND alternative accommodation will be available

• Ground 12 – the dwelling house is part of a building held mainly for purposes other than housing and was let because of employment, which has now ceased and the landlord needs the property for occupation by another employee

• Ground 13 – it is specially adapted accommodation for disabled persons and there is no longer anybody...