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A B C D E F G H I J K L M N O P R S T V W Y

Housing & Regeneration

A quarterly newsletter keeping the social housing sector informed of the latest legal news and developments.

Latest Issue

In our latest issue of Housing and Regeneration News Alistair Fletcher looks ahead with his predictions for what 2017 has to offer, whilst we also look back at the success of the recent North West Housing Conference plus other news which we hope you will find of interest.

Season's Greetings: The Housing and Regeneration team would like to take this opportunity to extend our thanks to all our clients and contacts who have worked with us over the last year. We hope that we have helped to guide you through the issues that matter to you and that you will allow us to help you realise your ambitions in 2017 and beyond.

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Regulatory Update: Assets and Liabilities Register

Friday 5th June 2015

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Housing & Regeneration News - June 2015

The concept of an assets and liabilities register is, of course, on everyone’s “to do” list at this point in time along with the need to stress test to breaking point the business. A lot has already been said and written about why these concepts have been so formally introduced by the HCA and we do not intend to go into them again here. Instead, we are going to look at the positive reasons for having an assets and liabilities register and consider why it should not be regarded as an administrative burden but instead as an extremely useful tool for the ongoing health of the business.

Why have one?

The simplest answer is, of course, because the HCA demand it and in order to comply with the governance and financial viability standard all RPs will be required to maintain one and to confirm that they maintain one in their annual report. Whilst this is a very good reason to maintain such a register it is not an entirely positive one.

We would instead look upon the register as an extremely useful tool for both the operation of the business and its ongoing health. From an operational perspective the knowledge of the assets, what limitations there may be on those assets and what the liabilities are can only help the smooth running of the business. For example, we are only too well aware of the number of times an organisation decides to securitise further property in order to raise further money only to find that those properties are burdened by covenants that are unacceptable to lenders or indeed the property is not even registered in the name of the organisation. Alternatively, we have recently heard a story of an organisation that recently discovered a £2 million asset that it did not know it had as a result of going through this exercise.

Consideration also needs to be given to the fact that a lack of understanding of what those assets are and what the liabilities may be can at best cause a huge operational headache and at worst cause an organisation liability and/or regulatory attention. For example, many of the recent gas safety issues that have led to downgrades in governance ratings have been due to poor data and as a result gas servicing being missed.

What form should it take?

We would urge organisations to not overthink and therefore not begin the process of compiling the register. Ultimately it is simply a list albeit a list that needs to be populated with appropriate information and linked to further more detailed information (such as certificates of title in relation to properties). It is also needs to be useful; think what information is useful to you and also consider what information you would want to know about another organisation were you to be asked to rescue it.

When does it need to be prepared by?

There is no explicit deadline. The implicit one however is the need to certify the existence of such a register in the annual financial statements and it is that deadline which will be the first to pass. However, we do understand that the HCA will be amenable (for this year at least) if an organisation can demonstrate that a plan is in hand which is being implemented to get such a register in place.

Role of the Board

It is critical that both the board and also the audit committee play a key role in ensuring its proper preparation. Each board member also needs to understand the effect and consequences of the assets and liabilities on the register. Finally, the board needs to ensure that the register is not simply prepared and forgotten but is maintained as a living, breathing document.

If you require further information or advice concerning assets and liabilities registers or how stress testing may be carried out, please contact:


Rupert Gill

Partner – Corporate
Tel: 0151 600 3106
Email Rupert


Is ‘Veyo’ the new conveyancing portal a market changer?

Friday 5th June 2015

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Housing & Regeneration News - June 2015

A look at the new conveyancing portal to help home-buying and the selling process

Overview

The Law Society and Mastek (UK) Limited have developed a new conveyancing portal, aiming to revolutionise the home-buying process, where all the processes and checks required for the legal transfer of a property could be completed electronically in one place.

The system, operating under the brand name ‘Veyo’ aims to allow professionals to better communicate with each other, clients and other parties, satisfy due diligence obligations more quickly and facilitate the conveyance of residential property through established protocols.

Land Registry figures show that in 2013 there were 1,074,000 residential property transactions in the UK. Elliott Vigar, head of commercial investments at the Law Society and Chief Executive of Veyo, said although the portal is not mandatory, it aims to process a quarter of conveyancing transactions by the end of 2015.

Conveyancers using the service will be presented with a dashboard that will show all active cases and their respective statuses. A calendar will show scheduled tasks, key dates and reminders. Veyo’s online ‘deal room’ will allow the two firms acting for the buyer and seller to collaborate and progress documents, with an automatic audit of all changes, with versions and approvals captured for each matter. Additionally, an online Veyo library will allow conveyancers to use template documents, letters and transaction forms that will be uploaded onto the Veyo system.

Veyo will also offer a client view interface that amongst other features will allow conveyancers to communicate with their clients via a discussion tab. Additionally, the client interface can be tailored to each individual client with conveyancers allowed to select what information they wish to share or exclude from each client.

Land Registry applications will be available from the launch date, with the integration of searches and HMRC transactions within Veyo planned for subsequent releases. Buyers and sellers will also be able to track their transaction via an app on a mobile phone.
Conveyancers conducting transactions through Veyo will be charged a flat fee of £20 per transaction. The £20 fee will include up to four anti money laundering searches and up to eight conveyancing forms. There will also be an administration charge of £50 per user per year. However, pre-registered users will get preferential rates. The pricing also includes access to free cloud storage and online training and support. 

Advantages

  • Veyo will enable greater efficiency for conveyancers and allow for most of communication between a conveyancing professional and home movers to take place online, cutting postal costs.
     
  • The managers behind Veyo are suggesting that the current average conveyancing time - 11.3 weeks - could be cut by up to two weeks if parties are on Veyo and use it to its fullest degree.
     
  • Veyo aims to handle conveyancing from instruction to post-completion. The portal will come with its own case management system but Veyo will also offer kits for integration with other leading management systems.
     
  • Veyo is built around the Law Society protocol which means that users can rest assured that best practice is being followed for fraud prevention purposes. An inbuilt protocol tracks all workflows and its anti-money laundering and identity checks will ensure compliance with lenders’ requirements.
     
  • Consumers will be able to go online to review documents such as search results, check the progress of their home purchase or sale, and even view the status of other buyers and sellers in their housing chain.
     
  • Through the increased transparency and established protocols that Veyo offers, it aims to reduce claims made against conveyancing firms, leading to lower insurance premiums overall.

Potential drawbacks

  • There is concern is that Veyo might trigger a “race to the bottom” in terms of prices with the possibility that some conveyancers might construct a model based on high volume and low prices.
     
  • Paper documentation will still be needed e.g. deeds, due to the Land Registry’s legal requirement for a ‘wet signature’.
     
  • Is there a need for another case management system?

What next?

Veyo was due to go live at the end of May 2015 but that had not occurred at the date of publishing.  Hopefully it will be live soon and it will be interesting to gather initial reactions from consumers to the product. In the run up to the launch, Veyo claims that 47 per cent of conveyancing firms are on board, ranging from volume conveyancers to sole practitioners. 

Brabners will be carefully monitoring the roll out of Veyo to see whether the product is beneficial to its Register Provider clients and whether the firm could look to use it in the future.

If you would like more information on the new Veyo portal or for any housing issue you may have, please contact either:


Andrius Roos

Associate
Tel: 0151 600 3083
Email Andrius

 

 

 


Don't Slip Up - Roads and Highways Section 38 – Important Update for Registered Providers

Friday 13th March 2015

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Housing & Regeneration News - March 2015

A recent Court of Appeal decision has implications for Registered Providers and deliverability of their schemes involving the construction of roads and highways.

Where roads and highways are constructed as part of new developments, it is generally envisaged that these will become public highways maintainable at the public expense at some stage after the scheme’s completion. Under Section 38 of the Highways Act 1980, the local highway authority can enter into a legal agreement with a developer to adopt a highway provided that the highway has been constructed to a specified standard and to the satisfaction of the local highway authority.

The form of a Section 38 Agreement

A Section 38 Agreement usually provides:

  • The developer undertakes Part 1 Works (usually including drainage, curb stones, lighting, etc)
     
  • The highway authority inspects and grants a Part 1 certificate
     
  • Occupation of the development may not take place until the Part 1 certificate has been issued.
     
  • The developer completes the Part 2 works
     
  • The highway authority inspects the works and issues a Part 2 certificate;
     
  • A maintenance period of usually 12 months then needs to expire and the highway is again inspected and, if satisfactory, adoption of the highway takes place
     
  • A bond may be required to ensure that the proposed works can be satisfactorily completed in the event of any default or unforeseen occurrence.

It has generally been accepted that Section 38 Agreements place liability for roads on the developer up to adoption, but thereafter the local highway authority takes over all future responsibility for the highways works. 

However, R (on the application of Redrow Homes Ltd) v Knowsley Metropolitan Borough Council has put this assumption in doubt.

The Redrow Case

Redrow had been granted an outline planning permission on 7 February 2011 for 525 dwellings at land in Huyton, near Liverpool.  The first phase included estate roads.

As part of the Section 38 Agreement, the local authority had included an obligation for the developer to pay a commuted sum of £39,000 towards the future maintenance, for an indefinite period, of street lighting after the adoption.  The commuted sum was relatively small in the context of the development in question. 

Redrow argued that no such provision could lawfully be included in a Section 38 Agreement.  The Court disagreed, highlighting a particular sentence in Section 38(6) of the Highways Act 1980, which stipulates that a Local Authority can include "any other relevant matters" that they see fit in their Section 38 Agreement.

The decision means that ongoing costs of maintenance and costs of construction or improvement after adoption of the highway, can lawfully be included within a Section 38 Agreement.

Where does this leave us?

It is clearly in the best interest of purchasers and developers that new estate roads are adopted and maintained by the local highway authority. Purchasers need to be assured that adoption can take place without any further expense to themselves and that any possible access problems will fall away once the highway is adopted.

In the light of ever tightening public sector budgets this decision may cause highway authorities to revise their road adoption policies and to seek future maintenance payments as part of the adoption process.

Developers should investigate early with the highway authority whether or not it is their policy to seek commuted sums in a Section 38 Agreement for highway maintenance purposes after adoption. Sums need to be factored into budgets and if such sums are too large it may mean that certain developments may become unviable with possible effects on the provision of affordable housing. Timely and sensible negotiation is the order of the day.

If you would like more information about Section 38 or any of the issues raised in this article, please contact:


Sarah Howe
Solicitor
Tel: 0151 600 3063
Email Sarah


Protected and Excluded Licence Update

Friday 13th March 2015

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Housing & Regeneration News - March 2015

We have recently had some guidance in relation to protected and excluded licences by the case of R (on the application of ZH and CN) (Appellants) v London Borough of Newham and London Borough of Lewisham (Respondents) [2014] UKSC 62 (on appeal from [2013] EWCA Save 804 and 805.

Protected Licences

A person will be granted a protected licence (protected under the Protection from Eviction Act 1977 (PEA 1977)) where they do not have exclusive possession of the accommodation but that accommodation is self-contained accommodation (i.e. toilet, bathroom, cooking facilities within the accommodation).

If a person has a protected licence agreement then a landlord will need to serve a notice to quit (in the prescribed form) to end the tenancy upon 28 days’ notice to the licensee.  If a licensee does not vacate the accommodation in accordance with the notice to quit then the landlord is required to obtain a possession order.

Excluded Licences

There are only a handful of occasions where a licence will be excluded.  Registered Providers may grant excluded licenses where a licensee occupies a room within a hostel.  A Hostel has a specific definition (Housing Act 1985 Section 622) and the licensee must share facilities (such as bathroom, toilet, cooking facilities.  If the licensee has an excluded licence they do not have the protection of the PEA 1977 and can be excluded without a court order. 

The Current Position

  • The current position is that a court order is not necessary if you grant someone an excluded licence.
     
  • If the accommodation meets the criteria of a hostel as defined in Section 622 (as set out above) then a licensee may be excluded from the premises if they engage in certain behaviour (which will be set out in the licence agreement).
     
  • The landlord also needs to serve a notice to determine giving the requisite notice period as set out within the licence agreement.
     
  • If the licensee does not move out of the accommodation at the expiry of the notice then the landlord can exclude without obtaining a court order.

Does this Case Change Anything?

  • The facts around this case were that the local authority sought clarification on whether or not they needed a court order to evict a person who was given an excluded licence and not afforded the protection of the PEA 1977.
     
  • The Supreme Court by a majority of 5/2 held that the local authority were entitled to evict the appellant who has excluded licence agreement without first obtaining a court order.
     
  • Note that there is a majority of 5/2 with two senior judges from the Supreme Court providing dissenting judgement.
     
  • The reasons for the judgement:
     
    • Lord Hodge considered that the word dwelling does not have a technical meaning but he suggested that it is certainly a greater degree of settled occupation than pure residence.
       
    • This type of temporary accommodation is not designed to be somebody’s home – it is designed to be an interim measure until more permanent settled accommodation can be found.
  • The licence agreement allowed the authority to transfer applicants to alternative accommodation at very short notice which would be at odds with this being somebody’s home.
     
  • The court seem to be saying that they do not want to interfere with this type of accommodation where it is in high demand for a short period of time and if they were going to impose an obligation for landlords to seek possession orders in every case would be unrealistic and at odds with the purpose of this type of accommodation.

Dissenting Judgement

  • Lord Neuberger and Lady Hale dissented against the above.They advised that the dwelling has a broad meaning.
     
  • Lord Neuberger states that people who have been lawfully living in premises should not be summarily evicted and it makes their occupation provisional or precarious.

Though the parties were in agreement that Article 8 Human Rights Act (right to respect for private and family life) were engaged so if a landlord is seeking to end an excluded licence then they need to be aware of a licensees Article 8 right and any interference with that right needs to be justified and pursuant to a legitimate aim.

Conclusion

  • This case has not widened the current framework for excluded licences.
     
  • It is concerning the two senior judges disagreed.
     
  • Currently, if you do offer an excluded licence (and it needs to comply with the requirements of being an excluded licence) then you can continue to exclude licensees from schemes and not obtain court orders prior to excluding.
     
  • This does come with a health warning as some licensees may raise Article 8, proportionality and Equality Act defences and landlords need to be ready to deal with those should they be raised by the licensee.

If you would like more information on the protected and excluded licence update or for any housing issue you may have, please contact:


Catherine Fearon
Solicitor
Tel: 0151 600 3184
Email Catherine


Disrepair - What's the Damage? A Round-up of Latest Decisions

Friday 13th March 2015

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Housing & Regeneration News - March 2015

An Overview of Recent Case Law

Summarised below are some recent decisions of various County Courts, as well as settled cases, on damages for housing disrepair.

Whilst these cases are only County Court decisions and therefore not binding on other County Courts, they give an indication of the current thinking behind the level of damages to be awarded in housing disrepair cases. 

There is no unique way of calculating the level of damages appropriate in any particular case and historically, methods of calculating damages have varied between the tariff system (as set out in Wallace v Manchester City Council (1998)) and a reduction in rental liability for the relevant period.

The cases below suggest that the Courts are preferring the approach of a notional reduction in rent.  This has always been our preferred method of calculation and provides for a consistent approach in assessing damages.

The cases are a reminder of the significant level of damages that can be paid out and an even greater reminder of how important it is for landlords to comply with statutory and contractual repairing obligations.

Armes v Real Property Co Limited (Clerkenwell and Shoreditch County Court – 17th May 2013)

A two bedroom flat in a Victorian terrace conversion was suffering from dampness to walls and floors in the living room, kitchen, bathroom and one of the bedrooms for many years. In addition, there had been a number of leaks into the property from various sources.  The landlord disputed notice but lost on that point at trial.

The Judge awarded £18,161 (general damages of £15,701 representing a 30% reduction in rental liability over a six year period and special damages for £2,460) and ordered specific performance of repair works.

Nzau v Gani (Croyden County Court – 21st November 2013)

The tenant alleged damp and water penetration for a six year period to the kitchen and bathroom.  An abatement notice had been served by the Council.

The Court awarded varying amounts by way of general damages of between 5-50% of the rental liability for specified periods. 

The varying percentages were discounted as there was no conclusive evidence from either side whether the damp was condensation related or penetrating damp. 

The global award was £10,903 (after allowing for discount). 

Clark v Affinity Sutton Homes Limited (Barnet County Court – 28th March 2014)

The tenant occupied a one bedroom flat from November 2004 until February 2014 when he was decanted.  The tenant claimed penetrating damp from January 2007.  Remedial works had been carried out in 2008 and 2013 but without resolving the issue.

Expert evidence found water penetration to the bathroom with condensation dampness and mould growth to living room, bedroom and kitchen.  Damp problems found to be caused by defective DPC. 

The tenant was in ill health.

The Judge awarded 30% of the rent for the period April 2007-August 2008 and 45% of the rent from January 2012-February 2014.  No award for the period between September 2008-January 2012 as the Court found, on the balance of probabilities, it was unlikely that there were any significant problems in this period.

The total award was £11,246 (of which £3,742.60 was in respect of special damages).

Wade v Dormeuil (West London County Court – 8th August 2014)

A private tenant of a two bedroom flat from October 2010 until October 2013 brought a disrepair counter claim to possession proceedings.

Damages sought for defective roof/gutters causing water penetration to the rear bedroom and hallway, intermittent penetration to the main bedroom, dampness to the living room, defective flush to the toilet, two gas leaks resulting in a lack of hot water for five days, a slow water flow into the water tank, defective and cracked plaster, defective windows to the living room, defective radiator and external defects.

Defence to counter claim struck out and the Court proceeded solely on the basis of the tenant’s evidence.

General damages awarded of 40% of the rent for the first two years (when all of the problems existed) and 25% of the rent for a third year (when the toilet had been fixed).

Total damages award of £24,203.35.

Whittingdon v Uddin (Clerkenwell and Shoreditch County Court – 14th August 2014)

A private tenant claimed damages in respect of a three year period for defective windows throughout, water penetration in the bedroom, internal leaks in the kitchen and WC and external disrepair.  Landlord failed to carry out any repairs despite repeated complaints. 

The Court ordered £1,800 (being a 100% reduction in rent for a six week period when the property was uninhabitable) and a global award of £7,500 to reflect other items of disrepair over a three year period.  Special damages and an award in respect of harassment were ordered in addition.

Coleman v Peabody Trust (Lambeth County Court)

Damages sought in respect of two bedroom flat with cracked and defective windows throughout the premises from the end of 2009 until August 2014.

Claim settled for approximately 23% of the rent for the period (£7,500).

Lawrence v Lambeth LBC (Lambeth County Court)

Secure tenant of a four bedroom flat claimed disrepair in respect of the poor condition of windows, which let in water and had mould growth around them.

Limitation took effect from May 2007.  Patch repairs carried out in June 2012.

Central heating defective for several years and remedied in December 2011.  Intermittent leak under the sink and from behind the toilet.  Infestation of mice for around four years. 

The landlord defended on the basis that the standard of repair was commensurate with the property’s age, condition and status.

Claim settled for a global figure of £12,500 (£9,500 general damages equating to approximately 20% of the rent, £1,500 for exacerbation of asthma due to damp conditions and £1,500 special damages).

Thomas v A J Bradburn (acting as Receiver for Adelphi Properties Limited) (Manchester County Court – 17th October 2013)

Assured shorthold tenant of two bedroom mid-terrace house complained over hot water system and storage heaters. From late-2008 the roof had a hole in it allowing water to leak through.  Damp patches developed.  Patch repairs carried out by the landlord but inadequate.  Roof problems worsened by late-2009 and tenant’s bedroom ceiling collapsed.  The tenant had to sleep downstairs for one year.

The Court ordered 40% of the rent for defective storage heaters and faulty hot water system, 30% of the rent for the intermittently functioning heating and hot water system, 30% of the rent for the disrepair to the roof and 50% of the rent for the leaks and dampness.

If you would like more information on any of the issues raised in this article please contact:


Josephine Morton
Associate
Tel: 0151 600 3094
Email Josephine
 


Consumer Credit for Housing Associations Update on the Latest Developments

Friday 13th March 2015

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Housing & Regeneration News - March 2015

 It is nearly a year since the Financial Conduct Authority (FCA) took over consumer credit regulation from the Office of Fair Trading (OFT).

We are currently in the middle of the two year ‘transition period’ which will expire in April 2016. Those housing associations that still carry out regulated activity will be required to apply for authorisation with the FCA within this period.

In this transitional period all housing associations carrying out a regulated activity will need to, during the transitional period, have a valid interim permission which covers the relevant activities or be FCA authorised. The FCA updates a list weekly with those firms who do not hold either interim permission or FCA authorisation and:

  1. On 31 March 2014 held an OFT consumer credit licence;
     
  2. Did not register for interim permission to continue carrying out consumer credit activities; and
     
  3. Did not tell the FCA by 14 April 2014 that they intended to exit the market.

Therefore it is important, if you have decided to exit the market, that you update the FCA with this information to avoid appearing on this list.

In order to ensure full compliance with the new regulations it is essential that the interim permission or authorisation applied for (and held) covers every activity which is regulated. Accordingly, it is important to be aware that the scope of the consumer credit regime is much broader than just loan and credit provision.

It covers many other activities which housing associations may undertake as part of their day to day work including debt counselling and credit information services. It is therefore essential to keep all the activities in which you are engaged under constant review to ensure that you do not fall foul of the new regime. 

You will only be authorised to carry out those activities for which you have received either interim permission, or, FCA authorisation. If you carry out any activity which requires FCA authorisation without receiving FCA authorisation this is now a criminal offence. Furthermore, any agreement which is made in the course of carrying on a regulated activity without the appropriate authorisation being held is potentially unenforceable.

Most housing associations should now have received their three month application window to apply for authorisation with the FCA. If you are unable to comply with the specified window you should contact the FCA as soon as possible to request an extension of time. You must also ensure, both during the interim permission period and once full authorisation has been granted, that the FCA is kept fully up to date of any changes in corporate structure, registered address or any variations in the regulated activities you carry out.

Finally, the change to FCA regulation means that it has become even more crucial for housing associations to have good risk management procedures in place. These procedures should ensure that any changes, such as those outlined above, are immediately notified to the FCA so that the authorisation remains up to date. Failure to do so is an offence.

Therefore, all housing associations should make certain that anybody responsible for consumer credit compliance is aware of the types of activity the organisation is carrying out.

Furthermore all ‘staff on the ground’ should be aware of what constitutes a “regulated activity” and the principles of the new FCA regime. This is essential to ensure continued compliance with existing regulated activities and be certain that any activity which may stray into a new regulated activity is carefully monitored and the right variations applied for before any activity takes place.

If you require more information about consumer credit for housing associations please contact:


Eleanor Markey

Solicitor, Commercial
Tel: 0151 600 3122
Email Eleanor


Gift Aid Payments to Parent Associations

Friday 13th March 2015

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Housing & Regeneration News - March 2015

Charitable Housing Associations with trading subsidiaries ought to be aware of the guidance recently issued by the Institute of Chartered Accountants concerning the level of gift aid payments that can properly be made by that trading subsidiary to the parent Association.

Should those payments exceed the available distributable profits of the trading subsidiary then that will constitute an unlawful distribution meaning, amongst other matters, that the Association will have to repay the excess.

We would recommend that careful attention is given to this practice going forward and historic payments are checked.

If you have any concerns about making gift aid payments, please do not hesitate to contact:


Rupert Gill
Partner, Corporate
Tel: 0151 600 3106
Email Rupert


Immigration Act 2014 - Pilot for Private Landlords

Wednesday 12th November 2014

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Housing & Regeneration News - November 2014

The Immigration Act 2014 received Royal Assent on 14 May 2014 which makes way for a series of reforms which are designed to ensure an immigration system which is fairer to British citizens and legitimate migrants and tougher on those with no right to be here.

The Immigration Act 2014 (“The Act”) contains 77 clauses, a substantial section of which apply to landlords and residential lettings, and makes fundamental changes to how the immigration system functions.

The Act is intended to limit the factors which draw illegal migrants to the UK, make it easier to remove those with no right to be here and ensure the Courts have regard to Parliament’s view of what the public interest requires when considering Article 8 of the European Convention on Human Rights in immigration cases.

Under the current legislation landlords must check the immigration status of prospective tenants, must monitor if they lose their right to remain and must check the status of people who also occupy the property.  If they fail to do this they can face a fine of up to £3,000.

A person will be disqualified from occupying the property under a residential tenancy if they are not a “relevant national” (which is a British citizen, a national of an EEA State or a national of Switzerland) or they do not have a right to rent in relation to the property.

The Government have advised that they will provide a free telephone number enquiry service for landlords and they have published an online “Right to Rent” tool to ascertain if a property will be affected.  This online checklist will also deal with how to carry out a right to rent check and will provide information requesting an official right to rent check from the Home Office (if necessary).

The Home Office is piloting a scheme in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton as part of a phased introduction across the country, this will apply to all tenancies, leases below 7 years, sub-lets or lodging arrangements granted on or after 1 December 2014 in the affected areas. Existing or renewed agreements where the tenancy/lease/lodging etc. is continuous from before 1 December will not be affected.

Councils are exempted (including discharge of homeless duty via private sector), as are other social landlords (where they have already been required to consider prospective tenant’s immigration status before allocating them the property) and hostels and refuges which are managed by social landlords, voluntary organisations or charities, or which are not operated on a commercial basis and whose operating costs are provided either wholly or in part by a government department or agency or a local authority.

Conclusion

The exemptions under Schedule 3 exclude agreements which grant a right of occupation in social housing where the Landlord or Local Authority is already subject to an obligation to check immigration status and prospective occupants, or the tenant already has an existing tenancy and is seeking to exchange their agreement for an alternative tenancy.  It would seem that new tenancy agreements from Registered Providers own stock will be subject to the Act.

If you would like more information about the Immigration Act 2014 and the pilot for private landlords please contact:


Catherine Fearon
Solicitor
Tel: 0151 600 3184
Email Catherine


Anti Social Behaviour Crime and Policing Bill Act 2014 Update!

Wednesday 12th November 2014

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Housing & Regeneration News - November 2014

There will be a delay to the introduction of Part 1 of the Act, the civil injunction. This will allow necessary changes to be made to the legal aid system to ensure that applications for advocacy assistance can be assessed for those involved in civil injunction hearings. This will require amendments to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The Government have indicated that the changes will be made to the 2012 Act by January 2015 at which point the injunctions will be in force and we will provide further guidance when we know that date.

Until we hear the date that the ‘new’ Injunction is in place the current system remains good law.

What is in force?

Parts 2-6 of the Anti-social Behaviour, Crime and Policing Act 2014 commenced on 20 October as planned.

This includes:

  • The criminal behaviour order
  • Dispersal power
  • Community protection notices
  • Public spaces protection order
  • Closure power
  • New absolute ground for possession
  • community remedy; and
  • The community trigger.

To read more about this legislation please visit the Government's website.

If you would like more information about the Anti-Social Behaviour Crime and Policing Bill Act or for any housing matter you may have please contact:


Josephine Sharrock

Associate
Tel: 0151 600 3094
Email Josephine


Update on warrants of possession and unlawful eviction: A reminder of what can go wrong

Wednesday 12th November 2014

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In the recent High Court case of AA –v- London Borough of Southwark [2004] EWHC 500 (QB), the council was found guilty of civil conspiracy and of unlawful eviction. This case, whilst hopefully not typical, contained useful reminders on:

  • The rules about issuing warrants on possession orders that are over six years old; and
  • The dangers of not following policies and procedures.
The Facts

AA was a secure tenant of the council for 23 years.  In 2006, the council obtained a suspended possession order (SPO) for rent arrears. In subsequent years, the council issued a number of warrants that were suspended on terms. A further application for a warrant to be issued was made in February 2013, without the council applying to the court for permission, as required by the Civil Procedure Rules because the SPO was more than six years old.

AA made an application to suspend the new warrant. This was dismissed and AA was evicted in April 2013 with his belongings being disposed of (without him being given a chance to collect them).

The council’s officers failed to follow the council’s eviction procedure. For example, the tenant was not visited before the eviction and no officer was present during the eviction. The High Court held that the officers involved had decided to evict AA “at all costs” and cover up their unlawful actions.

The High Court's decision

The High Court held that AA was entitled to damages for unlawful eviction, unlawful destruction of his belongings, misfeasance in public office and breach of tenancy and of his human rights and was entitled to aggravated and exemplary damages.

An out of court settlement was reached before the High Court decided the amount of damages.

Issuing a warrant on a possession order that is more than six years old

The High Court confirmed that:

  • The Court’s permission must be obtained before a warrant can be issued on a SPO more than six years old. Failure to do so makes any eviction unlawful.
  • The suspension of previous warrants on terms varying the SPO does not start the six years running again. You have to go back to the date of the original SPO.
  • When applying for permission, the landlord must put in a witness statement setting out the factual background. At suspension hearings, the landlord has a duty to present the full facts to the Court.
  • Except in exceptional circumstances, the Court should not permit a warrant to be issued more than six years after the date of the SPO. This would mean that the landlord would have to start new proceedings.

In this context, “exceptional circumstances” could be repeated attempts to get the tenant to comply with the terms of the SPO and repeated failures by the tenant to comply with agreed payment programmes.

Failure to follow procedure

 The council’s officers failed to follow the council’s own published procedures that were designed to protect tenants. Not only did this make the council’s actions (and therefore the eviction) unlawful, it also provided evidence of an unlawful conspiracy to evict at all costs.

Lessons to be learned

 Whilst unlawful conspiracies of this type are thankfully rare, there are important lessons to be learned from this case:

  • The correct court procedure must be followed when issuing warrants on old possession orders; and
  • Landlords must follow their own policies and procedures when carrying out evictions.

 Failure to do so could make an eviction unlawful and entitle the former tenant to set aside the warrant and to substantial damages.

If you would like more information on warrants of possession and unlawful eviction or for any housing matter you may have please contact:


Ian Alderson
Partner
Tel: 0151 600 3317
Email Ian


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