Housing Law Bulletin - Issue 180 - 28 June 2010

Monday 28 June 2010

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The Latest Housing Law News

New help for homeowners: on 25 June 2010 the Financial Services Authority announced that new rules would apply from 30 June 2010 to (1) mortgage arrears recovery procedures used by mortgage lenders and (2) sale and rent-back schemes. In particular, mortgage lending firms must not apply a monthly arrears charge where an agreement is already in place to repay the arrears, and payments by customers in financial difficulties must first be allocated to clearing the missed monthly payments, rather than to arrears charges. Repossessions should always be the last resort. For more details, click here.

Social Housing Regulation: in a much trailed speech delivered on 24 June 2010 the Housing Minister announced that UK Government is reviewing the role and purpose of the Tenants Services Authority and the best framework for regulating social housing. This review will consider the full range of options in line with the commitment to reduce the number and cost of quangos. For the full text of his speech, click here. For an official summary, click here.

Legal Aid in Housing Cases: on 23 June 2010 the Lord Chancellor announced the launch of an internal departmental review and assessment of legal aid policy to take "a fundamental look at the legal aid system". The government will consider the policy it wants to adopt and intends to seek views on a proposed new approach in the autumn. For more details, click here.

Housing and Anti-Social Behaviour: on 22 June 2010 the Tenant Services Authority (TSA) and Chartered Institute of Housing (CIH) launched the findings of their recent survey on activity by social landlords relating to housing and anti-social behaviour. The information gathered through the survey will inform the activities of the TSA's ASB action team (based with CIH) and help shape how services can be tailored to best support the more than 100 providers who have requested help and guidance to improve their ASB services. For more detail, click here.

Funds for Housing: the Budget delivered by the Chancellor of the Exchequer on 22 June 2010 outlined significant reductions in public sector funding for housing generally and for Housing Benefit in particular. For the National Housing Federation's immediate summary of the implications, click here.

The Latest Housing Case Law

Smith v Cooper
[2010] EWCA Civ 722
25 June 2010
The claimant and defendant had each been divorced. They formed a relationship and lived together. Some of the proceeds of their earlier divorce settlements were used to acquire two properties and some land which all came to be owned in their joint names. When their relationship broke down, the claimant sought declarations as to respective beneficial ownership and/or orders for sale and distribution of the proceeds. The Court of Appeal held that, by reason of the defendant's mental health condition and the claimant's subsequent taking control of her finances, a presumption of undue influence arose. That presumption had not, contrary to the judge's finding been rebutted. The case was not one for the application of principles of constructive trust as there had been express agreements voidable by reason of the undue influence. The orders made by the judge were set aside. For the full judgment, click here.

Austin v Southwark LBC
[2010] UKSC 28
23 June 2010
Mr Austin lived with his brother in a council flat. His brother had been the tenant but that tenancy had ended 18 years earlier when the brother had failed to comply with the terms of a suspended possession order. On his brother's death, Mr Austin applied for permission to represent his brother's estate in the old possession proceedings. His objective was, if appointed, to apply to revive his late brother's tenancy by postponing the date for possession. As that would work a retrospective revival of the tenancy, he would succeed to it. He was unsuccessful in the County Court, High Court and Court of Appeal. The Supreme Court allowed his further appeal. The late brother's right to apply to revive his tenancy had survived his death for the benefit of his estate and Mr Austin was given permission to represent the estate so that the application for revival could be made. For the judgment (which contains a full discussion of the "tolerated trespasser" concept), click here.

Annulment Funding Co Ltd v Cowey
[2010] EWCA Civ 711
23 June 2010
The defendants were in a long term relationship and had a son. They lived in a jointly owned house held on mortgage but with significant equity. The man was made bankrupt. To discharge the bankruptcy, the couple took a secured bridging loan from the claimant pending their broker finding a second mortgage lender. The loan led to the discharge of the bankruptcy but the broker was unable to find another lender. The defendants defaulted on the bridging loan and the claimant sought possession. The judge rejected the claim. The claimant had been on constructive notice of the undue influence the bankrupt was wielding over his partner to secure her agreement to the bridging loan. The Court of Appeal dismissed the claimant's appeal. For the full judgment, click here.

Doran v Secretary of State
[2010] EWHC Admin, [2010] All ER (D) 174
21 June 2010
The claimant, a Gypsy, bought a piece of agricultural land in the green belt adjacent to an established Gypsy and Traveller site and sought planning permission to station his home there. Permission was refused and an appeal was dismissed by a planning inspector. The High Court rejected a further appeal. The inspector had taken into account the personal circumstances of the claimant and his family, had considered and rejected the possibility of temporary planning permission for the change of use, and had reached a lawful finding in line with the presumption against development in the green belt.

R (South Kesteven DC) v Grantham Magistrates' Court
[2010] EWHC 1419
11 May 2010
Local residents complained to the council about the noise of loud music coming from a marquee in the garden of a pub. The council served abatement notices and an environmental health officer made two follow-up visits. On the first, she considered that there was no nuisance but on the second she was satisfied there was. The council prosecuted for breach of the abatement notice but the magistrates dismissed the claim and declined to 'state a case' to enable the council to appeal. The High Court allowed an application by the council for judicial review, quashed the decision of the magistrates and remitted the trial for rehearing. The magistrates had failed to distinguish between whether a nuisance had existed on the second visit and whether the publican had established a defence of having adopted the best practical means to prevent the nuisance under section 80(7) of the Environmental Protection Act 1990.

Housing Law Articles and Papers

Gang warfare
(tenancy agreements prohibiting gang membership)
M. Fox
[2010] Inside Housing, 25 June, p17
To read the article, click here.

Housing focus
A. Cafferkey
[2010] 160 New Law Journal 861

A tenant's money made safer
(tenancy deposit schemes)
J. Browne and P. Hebberd
(2010) Estates Gazette No.1024 p108

The Fraud Files
(data sharing to tackle housing fraud)
A. Gillett
[2010] Inside Housing, 25 June, p17
To read the article, click here.

Eligibility and Homelessness Assistance
T. Vanhegan
To read the paper, click here.

Housing Law Books

Housing Allocation and Homelessness - new edition
The new edition of Housing Allocation and Homelessness: Law and Practice by Jan Luba QC and Liz Davies has been published. Price: £50.00.
For full details, click here.

Repairs: tenants' rights
The new edition of Repairs: tenants' rights by Jan Luba QC, Deirdre Forster and Beatrice Prevatt has been published. Price: £45.00. For full details, click here.
To watch an independent review, click here.
To read an independent review, click here.

Housing Law Handbook - 10% off
The Housing Law Handbook, edited by Stephen Cottle and written by other members of the Garden Court Housing Team, provides a first port of call for lawyers and advisers dealing with housing. The book covers possession proceedings, homelessness rights, the allocation of social housing, and other routes into housing. To claim your 10% discount, order online and quote promotion code GCTHLH when prompted.
To read an independent review, click here.

Housing Law Consultations

Closing on 6 July 2010
The UK Government's consultation on new proposals for council housing finance. For the consultation documents, click here.

Closing 20 July 2010
The consultation exercise on the proposed new procedural rules for the Upper Tribunal (Lands Chamber). For a copy of the consultation paper, click here.

Housing Law Events

This Week

28 June 2010
Housing Disrepair
A Legal Action Group Training Day in London
For the details, click here.

29 June 2010
Housing Law 2010
An NHC Conference in York
For the details, click here.

30 June 2010
Anti-social behaviour update
An SHLA evening seminar
For the details, click here.

2 July 2010
Law on Trial 2010: Housing
A Birkbeck College Social Rights evening seminar
For the details, click here.

July 2010

8 July 2010
Possession 9/10ths of the law? Not for tenants
A Garden Court Chambers evening seminar
For the details, click here.

13 July 2010
Anti-Social Behaviour
An HLPA intermediate training seminar
For the details, click here.

October 2010

14 October 2010
Judicial Review Conference
A Garden Court Chambers one-day conference in Birmingham on all aspects of all aspects of judicial review
For full details, click here


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