Issue 135 - 18th May 2009

Monday 18 May 2009

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The Latest Housing Law News

Tolerated trespassers: there are hopes that later this week (or early next) a commencement order will be made to bring the provisions of Housing & Regeneration Act 2008 section 299 and Schedule 11 into force, at last. The ministerial order necessary to extend the impact of the changes to cases of 'successor landlords' was debated by the Lords Grand Committee and approved on 12 May 2009. For the debate, click here. The intention is to bring the new provisions into force in both England and Wales on the same date. In readiness, the Deputy Minister for Housing in Wales approved the laying of the necessary orders as long ago as 10 March 2009 - for the Welsh Assembly Government announcement, click here.

Possession claims: on 15 May 2009 revised figures were published showing that in 2008 some 142,743 possession claims were issued by mortgage lenders - the highest annual total since 1991. However, a commentary on the statistics for the latest quarter (Jan - Mar 2009) says that the Mortgage Possession Pre-action Protocol (MPAP) is now having an effect: "The introduction of the MPAP coincided with a fall of around 50% in the daily and weekly numbers of new mortgage repossession claims being issued in the courts as evidenced from administrative records. As orders are typically made (where necessary) around 8 weeks after claims are issued, the downward impact on the number of mortgage possession orders made was seen in the first quarter of 2009." For the latest statistics, click here. The ministerial statement accompanying publication of the figures contained a list of Government measures for those facing eviction which included this new initiative: "Housing Arrears Pre-Action Scheme pilots where the local social landlord has agreed for the court to send a letter to the tenant, before a claim is issued, inviting them to a meeting with a free legal advisor at the court to discuss ways to avoid legal action". For the press release, click here.

Reforming the private rented sector: on 13 May 2009 the Government announced its proposals for reform of the private rented sector including: (1) a light-touch national register of every private landlord in England; (2) full regulation for private sector letting agents; (3) an improved complaints and redress procedure for tenants and; (4) greater local authority support for good landlords. For a copy of the ministerial statement, click here. From now until 9 August 2009 the Government is inviting responses to its initial proposals. For a copy of the consultation paper, click here. Two days earlier a parallel consultation exercise on controlling Houses in Multiple Occupation will close. For a copy of that consultation paper, click here.

Abandoning Housing Legislation: on 12 May 2009 the Government announced that it proposes non-implementation and repeal of the right to enfranchise provisions in the Commonhold and Leasehold Reform Act 2002 designed to address the problem of qualifying leaseholders being deliberately excluded when fellow leaseholders exercise statutory rights to purchase the freehold of the building containing their flats. The minister said that it had become clear that implementation of the provisions would introduce a considerable amount of additional burdens, complexity and cost into the process. For the ministerial statement, click here. For the consultation paper on these proposals, click here.

Residents of Park Homes: about 200,000 people live in static and mobile homes on park sites around England. On 12 May 2009 the Government announced that it would be strengthening resident's rights and access to justice in disputes with site owners. For the ministerial statement, click here. For the document containing the detailed changes that the Government intends to make, click here. The Government has launched a consultation exercise closing on 4 August 2009 on how a new licensing system for site-owners might look. For a copy of the consultation paper, click here. A new set of factsheets about residents' rights has also been published. For copies, click here.

Representation for tenants: last week, meetings were held in Sunderland, Walsall, Basingstoke and Liverpool to get the direct input of tenants on the creation of the National Tenant Voice. The latest Update for Tenants (May 2009) from the Government explains that the intention is to establish a Council of around 50 tenant representatives and a 15-member Board. Recruitment will take place in June/July 2009 so that the NTV can begin work in the Autumn if the necessary legislation, now before Parliament, is passed. For the ministerial view on recruiting young people to the NTV Council, click here.

Disposing of Housing Association homes: registered social landlords need the consent of the Tenant Services Authority (TSA) before they can lawfully dispose of their existing homes (whether to sitting tenants, to other social landlords or to the private sector). The TSA currently exercises powers of the former Housing Corporation to give or refuse consent and will soon start exercising its own powers as the new housing regulator. On 8 May 2009 it issued a consultation paper about how its powers should be exercised. For a copy, click here. The consultation period ends on 15 June 2009.

The Latest Housing Case Law

14 May 2009
Lee v Whitehouse
[2009] EWCA Civ 375
The claimants were the landlords and the defendants were the Rent Act protected tenants of a London flat. It had been the defendants' home for 45 years. The landlords offered suitable alternative accommodation and claimed possession. The judge decided that - on the question of whether it was reasonable to order possession - he had to balance the reasonableness of the tenants' wish to stay in their home against the reasonableness of the landlords' wish that they should go. On that balance, he granted a possession order. The Court of Appeal held that the judge had been mistaken. 'Reasonableness' required the matter to be considered from all angles including the effect on each party (1) if the order was granted and (2) if it was refused. Applying that approach to the facts, it was not reasonable to make a possession order and the claim was dismissed. For the full judgment, click here.

14 May 2009
Basildon DC v McCarthy
House of Lords
The Court of Appeal had allowed the council's appeal against a finding that its decision (in principle) to take direct action to evict gypsies and travellers from land around Dale Farm was unlawful (for the Court of Appeal judgment, click here). The House of Lords has now refused leave to appeal against that decision by the occupiers.

12 May 2009
Korelc v Slovenia
[2009] ECHR 772
An elderly council tenant died. Mr Korelc had lived with the late tenant for three years, looking after him. He applied to succeed to the tenancy. The Housing Act 1991 section 56 provided that a new tenancy would be granted if the successor was the tenant's spouse, or a close family member, or a "person who lived with the tenant in a long-lasting life community". Mr Korelc claimed that he was within the last category even though he had not been the partner of the deceased or his relative. He alleged that if he was excluded from qualifying because he and the late tenant were both men, the provision was discriminatory and unlawful. The national courts decided that Mr Korelc did not qualify because he and the tenant had only had an "economic community" together not a "long-lasting life community". After proceedings spanning 10 years, an eviction warrant was granted. Mr Korelc complained to the European Court at Strasbourg. It decided: (1) the proceedings had taken an unreasonably long period and the delay amounted to an infringement of Article 6 for which 3000 euros compensation should be paid; (2) because the flat had been Mr Korelc's home and he had faced a claim for possession, the complaint related to the right to respect for a home in Article 8 but (3) there had been no unlawful discrimination contrary to Article 14 read with Article 8. No freestanding claim under Article 8 was made. For the full judgment, click here

8 May 2009
Tomlinson v Birmingham CC
House of Lords
The Court of Appeal had dismissed a challenge to decisions made by the council's homelessness reviewing officers on the basis that the procedures for review under Housing Act 1996 section 202 did not comply with ECHR Article 6 (for the Court of Appeal judgment, click here)The House of Lords has now granted leave to the homeless applicants to appeal against that decision to.


The Consultations Closing Soon

Stock Transfer
The consultation on Statutory Guidance about consultation requirements before stock transfer closes this week (on 21 May). For a copy of the consultation paper, click here.


The Latest Housing Articles

Keep FIT
(Family Intervention Tenancies)
M. Cunningham
[2009] 133 Adviser 19

No Minor Matter
(the law relating to teenage occupiers)
K. Bretherton
[2009] 153 Solicitors Journal No.18 p8

Parting with possession
(Sub-letting in social housing tenancies)
M. Coates
[2009] 133 Adviser 24

(applying proprietary estoppel to such arrangements)
R. Crozier
[2009] 106 Law Society Gazette No.19 p27

Benefits for homeless claimants
M. Rae
[2009] 133 Adviser 6

Housing Benefit Overpayments - part 1
D. Rutledge
[2009] 133 Adviser 11

Housing Law Events

This Month

20 May 2009
HLPA Meeting in London chaired by Lord Justice Sedley
For the details click here

21 May 2009
Housing Benefit Update for Housing Practitioners
A HLPA London Seminar
For the details click here

28 May 2009
Service Charges
A SHLA afternoon seminar
For the details click here

Next Month

4 June 2009
Mortgage Possession Proceedings
A HLPA intermediate level seminar
For the details click here

17 June 2009
Judicial Review
A Garden Court Chambers Conference

For the details click here

19 June 2009
Successful Housing Litigation
A Jordans Training Seminar
For the details click here


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