Courting disaster - Chartered Institute of Housing

1 Courting disaster Common issues with public sector tenancy agreements Dean Underwood Barrister Dean Underwood, Hardwicke Building, New Square, Lincoln's Inn, London WC2A 3SB What can I expect? Miscellany of common and not-so-common issues arising in litigation re public sector tenancy agreements + management of public sector tenancies: agreements, notices, succession etc Anthology of litigation anecdotes some vaguely amusing (?). Issue avoidance salutary lessons legal and practical pointers Dean Underwood, Hardwicke Building, New Square, Lincoln's Inn, London WC2A 3SB Dean Underwood, Hardwicke Building, New Square, Lincoln's Inn, London WC2A 3SB Of tenants and their agreements Identifying the tenant Is the person at court the signatory of the agreement?

2 Not always! Importance of sign-up procedure: ID and photograph Beware the child tenant'. minors incapable of holding legal estate in land, including tenancy (6) Law of Property Act 1925. landlord likely to hold legal tenancy on trust for child tenant Alexander-David v LBHF [2009] EWCA Civ 259 [2009] HLR 39. landlord likely to need to divest itself of trusteeship before serving notice, seeking possession etc Dean Underwood, Hardwicke Building, New Square, Lincoln's Inn, London WC2A 3SB Of tenants and their agreements (continued). Identifying the agreement Is the agreement at court the agreement signed by the tenant?

3 Not always! Lost agreements: what can you do? LSVT issues: relevance of new landlord's standard terms and conditions? Describing the premises please describe the premises! the extent of the demise: importance in disrepair cases the vexed case of gardens, garages and allotments Dean Underwood, Hardwicke Building, New Square, Lincoln's Inn, London WC2A 3SB Of agreements and their terms Former tenant arrears not rent due under terms of new tenancy X. but tenancy agreement may provide for repayment . Beware contracting out of landlord rights, reliance on or Ground 8 HA 1988. granting extra-statutory protection Exclusion clauses and unfair terms exclusion clauses?

4 Geographical behaviour clauses? Unfair Terms in Consumer Contract Regulations 1999. Dean Underwood, Hardwicke Building, New Square, Lincoln's Inn, London WC2A 3SB Of agreements and their security Correct identification of tenure is crucial, determining: the law that regulates the agreement common law, Rent Act 1977, Housing Acts 1985, 1988, 1996 etc the occupier's security of tenure introductory, secure, assured non-shorthold, assured shorthold etc the type of pre-action notice to be served on the occupier notice to quit, notice seeking possession etc the content of the pre-action notice statement of grounds for possession, expiry date etc the evidence needed to support a claim for possession Dean Underwood, Hardwicke Building, New Square, Lincoln's Inn.

5 London WC2A 3SB Of agreements and their security Social Housing generally held on one of 9 types of agreement, governed by combination of common law and legislation Type Principal, applicable legislation Introductory tenancy Housing Act ( HA') 1996, s124 . Secure tenancy HA 1985, s79 . Assured tenancy HA 1988 s1 . Assured shorthold tenancy HA 1988 s19A . Demoted tenancy HA 1996 s143A or 1988 s20B. Family intervention tenancy Schedule 1 to HA 1985 and 1988. Housing & Regeneration Act 2008 s298. Common law tenancy Protection from Eviction Act ( PfEA') 1977 s3 . Protected tenancy Rent Act 1977 s1.

6 Licence HA 1985 s79 or PfEA 1977 s3 . Dean Underwood, Hardwicke Building, New Square, Lincoln's Inn, London WC2A 3SB Of agreements and their security Security can be lost beware infelicitous pleading standard court forms may mislead court may prevent approbating and reprobating'. Benedictus v Jaralam (1989) 58 P&CR 330. prudent to plead an alternative case . security lost and NTQ effective alternatively, if security not lost, NoSP + statutory ground for possession Local authorities the perils of granting a licence (3) HA 1985: the secure licence does exist Dean Underwood, Hardwicke Building, New Square, Lincoln's Inn, London WC2A 3SB Of landlords and their notices Agreements and written notices Introductory tenancy Notice of possession proceedings s128 HA 1996.

7 Secure tenancy Notice of proceedings for possession s83 HA 1985. Assured tenancy Notice of proceedings for possession s8 HA 1988. Assured shorthold tenancy Notice requiring possession s21 HA 1988. Demoted tenancy Formerly secure Notice of proceedings for possession s143E HA 1996. Formerly assured Notice of proceedings for possession s21 HA 1988. Family intervention tenancy Local Housing authorities Notice of intention to serve notice to quit s298 HRA 2008. Followed by notice to quit s5 PfEA 1977 (usually). Others Notice to quit ". Common law tenancy Notice to quit ". Protected tenancy Notice to quit ".

8 Licence Notice to quit (if any) ". (The above table assumes the tenancies referred to are periodic). Dean Underwood, Hardwicke Building, New Square, Lincoln's Inn, London WC2A 3SB Of landlords and their notices Practice points If unsure of correct type, serve more than one, each without prejudice to the other . If unsure of correct content, contact a solicitor! Use methods of service identified by agreement (see below) and always complete a certificate of service (Form n215 ). And remember: check for existing possession orders tenancy may already have ended because of an existing order, obviating the need for a new notice Dean Underwood, Hardwicke Building, New Square, Lincoln's Inn, London WC2A 3SB Of landlords and their notices (continued).

9 L&T Act 1987. notice of landlord address in England & Wales for service of notices rent not lawfully due until notice given rarely an issue now: Drew-Morgan v Hamid-Zadeh (2000) 32 HLR 316. occasionally causes problems the last day of a period of the tenancy' the landlord's bane need for NTQ and (4) notices ( NRPs') to expire on correct date NTQ: first or last day of a period of the tenancy not less than - 4 weeks after service if tenancy is weekly - 1 month after service if tenancy is monthly Dean Underwood, Hardwicke Building, New Square, Lincoln's Inn, London WC2A 3SB Of landlords and their notices (continued).

10 NRP: after last day of period of tenancy not earlier than two months after service of notice Prudent solution: the omnibus clause . after the last day of the period of your tenancy which will expire next after the period of (4 weeks / 1 month / 2 months) following the service upon you of this notice.. Lower Street Properties Ltd v Jones (1996) 28 HLR 877. Dean Underwood, Hardwicke Building, New Square, Lincoln's Inn, London WC2A 3SB Of notices and their service Usually, service of notice = pre-condition to re-possession Consider: NoSP Secure, assured, assured shorthold tenancies NRP Assured shorthold tenancies NTQ Common law tenancies Failure to ensure service of notice can be fatal Court has power to dispense with service of NoSP, but not NRP, NTQ etc Consider difficulties with service when secure tenant emigrates Answer: section 196, Law of Property Act 1925 ?