Housing Law Bulletin - Issue 269 - 25 June 2012

Monday 25 June 2012

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****DEADLINE EXTENDED: the closing date for applications from barristers wishing to join the Housing Team at Garden Court Chambers has been extended to this Friday 29 June 2012. For further details of this unique opportunity for specialist housing barristers to join Garden Court, click here.******

The Latest Housing Law News

New offence for sub-letting of social housing: on 20 June 2012 the UK Government announced that it would support a new Bill to introduce a new criminal offence of sub-letting in social housing. For the announcement, click here. The Prevention of Social Housing Fraud Bill is a Private Members Bill introduced by Richard Harrington MP. It is scheduled to have a House of Commons Second Reading on 13 July 2012. To follow the Bill's progress, click here.

Tenancy deposits: the housing charity Shelter has reported that calls to its helpline about tenancy deposit problems have increased by more than 80% in two years. For more details, click here. A recent survey by the organisation Informa found that 65% of tenants feel that deductions from their deposit were taken unfairly and that 16% of the 1,000 tenants surveyed stated that no reason whatsoever was offered by their landlord for deductions. For more detail of the survey results, click here.

Social housing tenure: one London Borough is mid-way through a consultation exercise with its residents on whether it should retain the present arrangements for periodic secure tenancies or adopt the new fixed term flexible tenancies made available by the Localism Act 2011. The consultation leaflet might provide a useful template for other local authorities minded to embark on a similar exercise. For a copy, click here.

Under-occupation in social housing: the Making Best Use of the Stock Team at the Chartered Institute of Housing has produced Making it Fit - a guide addressing the issues for social landlords arising from the effects of welfare reforms on working age tenants who are under-occupying their homes. This guide is designed to help landlords develop a strategic and operational approach to the size criteria, tailored to local contexts. For a copy, click here.

New Housing Tribunal: in 2013 a new Property Chamber of the First-tier Tribunal in 2013 will be formed when the following tribunals in England will transfer in to the chamber: Rent Assessment Committees; Rent Tribunals; Residential Property Tribunals; Leasehold Valuation Tribunals; and Agricultural Land Tribunals. In both England and Wales the Adjudicator to Her Majesty's Land Registry will also transfer into the Property Chamber. The Tribunal Procedure Committee is conducting a consultation exercise to seek views on the proposed rules for a new Property Chamber The proposed draft Property Chamber Rules 2013 will consolidate and reform the rules of procedure of the tribunals joining the new chamber. Responses are invited by 6 September 2012. For the consultation paper, click here. For the draft procedure rules, click here.

New Homes: on 21 June 2012 the Housing Minister announced that the remaining £570m in the Get Britain Building fund could now be released by the Homes & Communities Agency (HCA). The investment fund was launched in the UK Government's Housing Strategy on 21 November 2011 and the original prospectus was issued on 22 December 2011. For further details of the new round of funding click here. The deadline for applications is 25 July 2012. For the announcement, click here.

Mobile homes: The Mobile Homes Bill, a Private Members Bill proposed by Peter Aldous MP, is intended to reform the law relating to mobile homes. It is scheduled to have a House of Commons Second Reading on 19 October 2012. To follow the Bill's progress, click here.

Housing Policy: on 21 June 2012 the think tank IPPR published Together at home: a new strategy for housing running to 124 pages. For a free copy, click here.

Housing and anti-social behaviour: the Chartered Institute of Housing has published a new guide entitled How to use the Community Harm Statement. For a copy, click here.

Homes on park sites: the House of Commons Select Committee on Communities & Local Government has published a wide-ranging report covering the law relating to park home sites and calling for better enforcement. It offers a list of recommendations for improvements in the legal position of site home occupiers. For the full report, click here.

The Latest Housing Case Law

Fuller digests of most of the cases noted each week in this Bulletin appear in an online indexed and searchable database edited by Jan Luba QC and called the Case Law Digest. For details of that service, click here.

Camden LBC v Stafford [2012] EWCA Civ 839
20 June 2012

The council gave notice to an introductory tenant that it would seek possession. She applied for a review of the decision to seek possession. The reviewing panel upheld the notice but decided that alternative measures should be pursued instead of possession. The alternative measures failed. Without serving a further notice, the council sought possession. A judge dismissed the claim because it was a condition for bringing a possession claim against an introductory tenant that, if there had been a review, the decision on review had to have confirmed the earlier decision to seek possession. It had not done so. The Court of Appeal dismissed the council's appeal. The reviewing panel had either confirmed the earlier decision without qualification or it had not. On the wording of the review decision letter there had not been an unqualified confirmation. It was not possible to make confirmation conditional. Absent unconditional confirmation the court had no jurisdiction to grant possession. For the judgment, click here.

R(Cranfield-Adams) v Richmond Upon Thames RLBC [2012] EWHC (admin), [2012] All ER (D) 114 (Jun)
19 June 2012

The claimant was a tenant. He applied for housing under the council's housing allocation scheme. He was made an offer of social housing accommodation but refused it. The council's scheme provided that the effect of refusing a suitable offer would be that the application would be cancelled and any further application would be deferred for a period of two years. The claimant was then made homeless and applied for accommodation under the homelessness provisions of Housing Act 1996 Part 7. The effect of his being homeless was that he was entitled to a reasonable preference in the allocation of housing under the council's scheme: Housing Act 1996 section 167(2)(a). The council decided that he remained subject to a deferral. The High Court dismissed a claim for judicial review of that decision. Both the scheme and the decision to apply it were lawful given the extreme pressure on social housing, the fact that the council had no housing stock of its own, the need for co-operation with the local providers of social housing, the legitimate interests of those housing providers in maximizing rent and the administrative burden upon the council when an applicant refused an offer.

Dukic v Boznia and Herzegovina [2012] ECHR 1052
19 June 2012

Mr Dukic had been the occupier of a socially owned flat. The building in which it had been situated was destroyed. He applied to the council for a replacement flat but it did not respond. He brought legal proceedings but the council failed to defend them. In 2005 he obtained a default judgment and an order that he be provided with a replacement flat. His attempts to enforce that order failed on the grounds that the order did not precisely specify what sort (or size) of flat he should be provided with. In 2008 the domestic constitutional court directed that he would need to start fresh proceedings to secure that outcome. The European Court of Human Rights held that there had been a breach of Article 6 in the failure of the state to secure enforcement of a valid judgment. Requiring Mr Dukic to 'start again' imposed an excessive burden on him. There had also been a breach of Protocol 1 Article 1 because the entitlement to a flat under the default judgment was an asset which Mr Dukic had had a legitimate interest in securing. For the judgment, click here.

Lindheim v Norway [2012] ECHR 985
12 June 2012

The applicants were landowners who, as landlords, had entered into ground lease agreements with lessees for either permanent homes or holiday homes. They complained that, in breach of Protocol 1 Article 1, under new legislation the lessees had been entitled to demand, and had demanded, an unlimited extension of the leases on the same conditions as applied previously, once the agreed term of lease had expired. The effect was to render it impossible to recover the land or receive more than a fixed rent which could only be increased by reference to price inflation. The Government said that the legislation had struck a balance between the rights of owners and long leaseholders and that the state had a wide margin of appreciation in such matters as the case of James v UK (1986) 8 EHRR 123 (on collective enfranchisement) had demonstrated. The European Court rejected that argument and upheld the applications. The Court was not satisfied that the state, notwithstanding its wide margin of appreciation, had struck a fair balance between the general interest of the community and the property rights of the applicants, who were made to bear a disproportionate burden. The Court had regard to several more recent rulings than James "representing jurisprudential developments in the direction of a stronger protection under Article 1 of Protocol No. 1". For the judgment, click here.

Shlaimoun v Mining Technologies International Inc [2012] EWCA Civ 772
29 May 2012

When a party wishes to appeal it must first obtain permission to appeal, either from the court which made the order being challenged or from the appeal court. It has become relatively common for an appeal court to adjourn a permission application (usually dealt with on paper) into open court and direct that the appeal be listed to follow immediately if permission is granted. In the instant case (not a housing case) the Master of the Rolls suggested that this form of order should only very exceptionally be made. He said: "The effect of such an order is little different from granting permission to appeal. So far as court time is concerned, enough time has to be set aside for hearing the appeal. So far as the legal representatives are concerned, they have to prepare and charge as if there is going to be a full appeal. So far as the parties are concerned, they have to brace themselves for a re-investigation of the whole case, inter partes, and if they are in person, this can be especially stressful, and, if they are not, it can be especially expensive. The only differences between making an order such as that made in this case and simply granting permission to appeal are (i) in the former case, the court can be more peremptory, and (ii) the court in the former case is left with the option at the end of the argument of refusing permission to appeal and thereby shutting off the unsuccessful applicant from any prospect of getting to the Supreme Court. Point (i) only applies where permission should have been refused in the first place, and point (ii) is scarcely a proper a reason, at any rate in the great majority of cases."

419 Archway Road Freehold Co Ltd v Ennison [2012] EWCA Civ 831
24 May 2012

The claimant was the freeholder of a building. The defendant was a leaseholder of one of the flats and had herself previously been the freeholder prior to its acquisition by the company. There was a dispute about service charges. A Leasehold Valuation Tribunal (LVT) held that the charges were reasonable and payable by the defendant. When she did not pay, the company claimed that her lease was forfeit. A judge made a possession order. He held that the charges amounted to 'rent' under the lease and were recoverable without a "section 146" notice having to be served. He found that a possession order would not infringe the defendant's human rights. The Court of Appeal dismissed a renewed application for permission to appeal. The defendant's human rights under Article 8 were secured by the terms of her lease and the fact that she could apply to a county court for relief from forfeiture.

R(Bizzy B Management Ltd) v Stockton-on-Tees BC [2012] EWCA Civ 764
9 May 2011

The claimants owned a dilapidated building in the council's area. In 2007 the council served a notice under section 79(1) of the Building Act 1984 requiring that the owners either repair or demolish the building. The owners decided not to appeal and not to repair but instead to demolish the building. By Autumn 2010 the building had neither been repaired nor demolished and the council resolved to exercise its power under section 99(2)(a) of the Building Act 1984 to execute the work of demolition and it commissioned demolition works. The owners said that they had entered into a development contract for the redevelopment of the building and sought a judicial review to stop the demolition. The High Court dismissed the claim. The owner's appealed. The Court of Appeal dismissed the appeal. There had been no unlawful interference with the owners' rights under the Human Rights Act 1998 Schedule 1 Protocol 1 Article 1. The decisions to make the demolition order and carry on with the demolition had been lawfully made. For the judgment, click here.

L (Children) [2012] EWCA Civ 721
4 May 2012
A married couple and their twin children aged 8 lived together in the matrimonial home. The marriage broke down. A judge found that in the particular circumstances it was not possible for the husband and the wife to continue to live together in the same house without damage to the children. He made an order under section 33 of the Family Law Act 1996 excluding the husband for three months. The husband appealed, asserting that an exclusion order should not be made in a case where there was no violence or other misconduct. The Court of Appeal dismissed the appeal. While an exclusion order was frequently described as "draconian", and such orders should only be made in exceptional circumstances, neither violence nor misconduct were prerequisites. The making of the order had been open to the judge given the impact on the children that not making it would have had. For the judgment, click here.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2012] June Legal Action p33
For back issues of articles in this series, click here.

Addressing the situation
(commentary on Beitov Props v Martin)
J. Naylor
[2012] 162 New Law Journal p800

Staying, suspending or setting aside possession warrants
D. Malone and J. Luba
[2012] June Legal Action p29

Housing Law Events (Summer 2012)

This Week

27 June 2012
Social Housing Tenancy Agreements
A Lime Legal training event in London
For the details, click here.

28 June 2012
Anti-Social Behaviour
A SHLA evening seminar in London
For the details, click here.

29 June 2012
Homelessness: Law and Practice
A Lime Legal training event in London
For the details, click here.

Next Month

18 July 2012
Outside the Housing Acts: No recourse and Community Care
An evening meeting in London of HLPA
For the details, click here.

 

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