Issue 111 - 27th October 2008

Monday 27 October 2008

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Latest Housing Law News

Mortgage Repossession: on 22 October 2008 the Civil Justice Council (CJC) announced that the new pre-action protocol for mortgage possession cases had been approved and would come into force on 19 November 2008. For a copy of the announcement, click here. For a copy of the approved protocol itself, click here. Earlier in the month the CJC had announced that it had abandoned proposals for a general pre-action protocol but would focus on strengthening the current Practice Direction on protocols. For a copy of that announcement, click here.

Sale and Rent-Back: also on 22 October 2008, the Treasury announced that the government would launch a consultation exercise on bringing sale and rent-back schemes (offered to mortgage defaulters) under Financial Services Authority regulation. For a copy of the announcement, click here. This comes after publication of an Office of Fair Trading report following an investigation of the market for such schemes. For a copy of that report, click here.

Selling by Lottery: in the light of a developing trend for desperate homeowners to try and sell their unmarketable properties as prizes in competitions, the Gambling Commission has issued a reminder that such activity falls under statutory control. For a copy of its guidance to homeowners, click here.

Buying Unsold Houses to Rent: the Government has announced that £13million has been made available to ensure that 335 unsold homes built for sale will be made available as affordable housing, mainly for social rent, on sites across the country. The scheme is designed to provide help for families who would otherwise be on waiting lists and follows agreement, between the Housing Corporation, Bloor Homes and the social housing provider Sanctuary Group. For the details, click here.

Reforming the Private Rented Sector: the report of a government-commissioned inquiry into the private rented sector has just been published. The inquiry was undertaken by Dr Julie Rugg and her colleagues at York University. Launching the report, the Junior Housing Minister said that the author's idea of "licensing for landlords and fuller regulation for agents may be one way to support good landlords and offer tenants greater guarantees of quality". For the full text of his speech, click here. For a copy of the report, click here.

Inspecting Housing Services: the Audit Commission has launched a consultation exercise on proposals to undertake inspections of local authority housing services, and of the activities of ALMOs, at short notice. For a copy of the consultation paper, click here. Responses are sought by 1 December 2008.

The new Regulators: on 17 October 2008 the Government announced the make-up of the board of the new Tenant Services Authority. Of the seven new appointees, only two are social housing tenants. For the full list of appointments, click here. For the latest statement of the timetable for commencement of the TSA's operations, click here. A whole raft of primary and secondary housing legislation must be amended in consequence of the establishment of the new regulator. A draft Housing & Regeneration Act 2008 Consequential Provisions Order has been laid before Parliament. For a copy of the draft order, click here. For the memorandum explaining its content, click here.

Backdating Housing Benefit: the rules on backdating of housing benefit claims were amended on 6 October 2008. The changes were explained to local authority benefits staff in circular HB/CTB A16/2008. For a copy of that circular, click here.

Protecting affordable housing in rural areas: in the consultation paper Shared Ownership and Leasehold Enfranchisement, published in July 2007, the government outlined a proposal to restrict stair-casing on shared ownership properties in certain areas to be designated as 'protected', to ensure that such properties remain affordable and available on shared ownership terms in perpetuity. This month it has launched a further consultation on initial proposals for designation in rural areas. The consultation paper asks for views on the types of location that could be considered for designation and the terms and conditions for non-housing association shared ownership leases granted for houses. Responses are sought by 31 December 2008. For a copy of the latest consultation paper, click here.

The Latest Housing Case Law

24 October 2008
Yorkshire Bank Finance Ltd v Mulhall
[2008] EWCA Civ 1156
Mrs Mulhall gave a guarantee to cover bank-lending to her business. The company defaulted and the bank called on the guarantee. When Mrs Mulhall did not pay, the bank sued and in 1991 obtained a charging order over her house. It took no steps to enforce it. Mrs Mulhall claimed that the Limitation Act 1980 now debarred its enforcement. The Court of Appeal rejected that contention. The Limitation Act does not limit the ability to enforce a charging order.
For a copy of the judgment, click here.

23 October 2008
Parris v Williams
[2008] EWCA Civ 1147
Mr Parris bought two adjacent flats as sole legal owner. Mr Williams claimed that they had been bought in pursuit of an agreed arrangement under which both men would work on the flats and otherwise invest in them with a view to them having one each. A judge agreed with Mr Williams and ordered Mr Parris to sell one of the flats and give the net proceeds to Mr Williams. The Court of Appeal dismissed an appeal. The judge had been entitled to find that there had been a joint understanding of the type Mr Williams had described.
For a copy of the judgment, click here.

22 October 2008
Truro Diocesan Board of Finance Ltd v Foley
[2008] EWCA Civ 1162
Mr Foley had been a tenant of the Board. Possession proceedings between them were compromised on the basis that Mr Foley would move out for 24 hours and then be granted an assured shorthold tenancy of the same property. That having happened, and the shorthold having expired, the Board sought possession. Mr Foley then contended that he was still a protected tenant (under the Rent Acts) because immediately before the grant of the latest tenancy he had been a Rent Act tenant. The Court of Appeal held, unanimously, that: (1) the break of 24 hours prevented the new tenancy having been granted "immediately" after termination of the old one; (2) nothing in the Human Rights Act 1998 required a more generous interpretation to be given to that word and, by a majority, (3) that the compromise agreement was not itself a new "tenancy" granted at a time when Mr Foley was still covered by the Rent Acts.
For a copy of the judgment, click here.

22 October 2008
R(RJM) v Secretary of State
[2008] UKHL 63
Because he was homeless, the claimant was refused a disability premium as part of his welfare benefits. The House of Lords held that (1) the premium was "property" for the purposes of Article 1 Protocol 1 ECHR (2) the claimant had been discriminated against on the grounds of his homelessness (3) "homelessness" was an "other status" on which discrimination might be made unlawful by Article 14 ECHR but (4) the discrimination in this case was justified because it pursued a reasonable policy objective.
For a copy of the judgment, click here.

21 October 2008
Hallam-Peel & Co v Southwark LBC
[2008] EWCA Civ 1120
An occupier of council property instructed a firm of solicitors to seek the suspension or setting aside of a warrant for possession. Over the course of several adjourned hearings, the basis of the application changed. One adjournment had been sought when the occupier was shown the council's request for a warrant. It appeared to give the wrong amount of indebtedness. A judge gave notice to show cause why the solicitors should not pay the wasted costs of that adjournment. The Court of Appeal held that he had been in error. The solicitors had not acted unreasonably in not earlier seeking sight of that document, as they had had no cause to do so.
For a copy of the judgment, click here.

16 October 2008
Simms v Islington LBC
[2008] EWCA Civ 1083
The claimant was a single homeless man. He was morbidly obese, smoked excessively and had been addicted to cannabis and crack cocaine. The council decided that he did not have a priority need for homelessness assistance as he was not "vulnerable". A judge dismissed an appeal against that decision and the Court of Appeal rejected a further appeal. The council has correctly addressed the vulnerability test and had taken into account the risk of a relapse.
For a copy of the judgment, click here.

16 October 2008
Omotajo v Omotajo
[2008] EWHC (QB), [2008] All ER (D) 156 (Oct)
The claimant and his wife, who were divorcing, were in dispute about their beneficial ownership of a property occupied by their son. The claimant was the registered legal owner but the son claimed the right to occupy the property under a licence granted by his mother. He asserted that his rights under the Trusts of Land etc. Act 1996 could only be curtailed with court approval. The High Court decided that the 1996 Act did not apply and granted the claimant a possession order.

15 October 2008
Jackson v Cambridge CC
[2008] EWHC (Admin), [2008] All ER (D) 138 (Oct)
Mr Jackson took an assured shorthold tenancy of a house in 1997, containing a covenant against subletting. When the initial term expired, he continued to pay the rent until 2001 when the landlord re-let. The council sought unpaid council tax from him from 1997 - 2001. A tribunal found him liable and he appealed contending that the house had in fact been sublet by him to a number of individuals and that they, not he, were liable. The High Court dismissed the appeal. The tribunal had made no material error.

10 October 2008
Teixeira v Lambeth LBC
[2008] EWCA Civ 1088
The claimant and her daughter were Portugese nationals living in the UK. The claimant was not employed but the daughter was in full time education. On an application for homelessness assistance, the council decided that the claimant was not "eligible". That decision was upheld on review and on appeal to the county court. On a further appeal, the Court of Appeal referred to the European Court in Luxembourg the question of whether the child's right under Article 12 EEC 1612/68, read with its earlier decision in Baumbast, gave the mother a right to reside in EU law. (The Court of Appeal had earlier referred a similar question in Harrow LBC v Ibrahim but in that case the parent had not been an EU national.)
For a copy of the judgment, click here.

8 October 2008
Horsham Property Group v Clark
[2008] EWHC 2327(Ch)
Following default in payment of a mortgage, the lender sought to exercise the statutory power to sell the property contained in Law of Property Act 1925 section 101. The borrower claimed that the provision infringed Article 1 Protocol 1 ECHR because it deprived him of his possessions. The High Court held that the section was not inconsistent with the ECHR. It simply gave statutory sanction to a right in the lender that emerged from the mortgage agreement with the borrower.
For a copy of the judgment, click here.

Housing Law Events in November

4 November 2008
Housing Supply
An Oxford University Housing Seminar

For the details, click here

5 November 2008
Homelessness
A HLPA Seminar

For the details, click here

11-13 November 2008
"Changing Times" Housing Conference (in Cambourne)
CIH Eastern Region

For the details, click here

12 November 2008
Asylum Seekers and Eligibility
A HLPA Seminar

For the details, click here

19-21 November 2008
Annual Lettings & Homelessness Conference (in Staffordshire)
Chartered Institute of Housing

For the details, click here

19 November 2008
Housing Law Update
The HLPA meeting

For the details, click here

26 November 2008
Annual Housing Conference
Social Housing Law Association

For the details, click here

26 November 2008
Landlord Liability for Nuisance.
A HLPA Seminar

For the details, click here

Dates for the December Diary

1 December 2008
The Crime & ASB Conference (in Harrogate)
Northern Housing Consortium

For the details, click here

3 December 2008
Residential Landlord & Tenant Conference
Professional Conferences

For the details, click here

9 December 2008
Housing & Regeneration Act 2008
A CIH Conference

For the details, click here

10 December 2008
The Housing Law Conference
The Annual HLPA Conference in London.

For the details, click here.

12 December 2008
Housing Management
A Lime Legal Conference.

For the details, click here.

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