Issue 153 - 12th October 2009

Monday 12 October 2009

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The Latest Housing Law News

Help for homeowners: on 8 October 2009 the Government launched another drive to encourage homeowners with mortgage arrears to get advice and representation. Some 22 hotspot areas are being targeted as having a higher risk of repossessions, due to high levels of unemployment and numbers of court orders for repossessions. In those areas, advertisements highlighting the range of Government support available to homeowners will appear in local newspapers, online and on billboards. The 22 areas are: Barking and Dagenham; Birmingham; Bolton; Cannock Chase; Corby; Halton; Kingston-upon-Hull; Knowsley; Liverpool; Manchester; Nottingham; Newham; Northampton; Reading; Redditch; Salford; Sandwell; Sunderland; Swindon; Walsall; Wigan; and Wolverhampton . For more details, click here.

Mortgage Rescue Scheme: at present, 23 housing associations are participating in the Mortgage Rescue Scheme (MRS) in England under which they buy-out the mortgages of defaulting homeowners. The Homes & Communities Agency has now written to all its investment partners encouraging more associations to join the scheme and take advantage of the flexible grant packages available for investment in the MRS. For more details, click here.

The Latest Housing Case Law

5 October 2009
Mexfield Housing Co-operative Ltd v Berrisford
[2009] EWHC (QB) 2392.
The claimant was a fully mutual housing co-operative. The defendant had been a member and tenant since 1993. Due to a housing benefit mix-up, she went into arrears of rent. The claimant served notice to quit and sought possession. She cleared the arrears but the High Court held that she had no defence to the claim. Fully mutual tenants were neither secure nor assured. They were subject to service of notice to quit at any time, for any reason. The court had no power to refuse to make an order. Her defence based on human rights having been abandoned, a possession order was inevitable. For a copy of the judgment, click here.

2 October 2009
SOCA v Pelekanos
[2009] EWHC (QB) 2307
The defendant owned a number of properties acquired with mortgages. The High Court found that in all but one of the applications the defendant had deliberately given false information about his income. His entries on the application forms had been substantially untrue. The Serious and Organised Crime Agency applied for orders recovering the value of all the properties. The judge rejected the defendant's case that the loans were advanced at a time when mortgage loans were being readily granted and that his lies had not influenced their grant. Making the orders sought, the judge said: "As the law stands, any person, however otherwise law abiding, may be the subject of a civil recovery order if he makes a deliberately false statement in a mortgage application form. It is important that this be more widely known, and it is desirable that mortgage providers spell out this possible consequence of a misstatement in their application forms". For a copy of the judgment, click here.

1 October 2009
Minister of Housing, Districts & integration v Servatius
[2009] ECJ C-567/07
Servatius was an approved housing association in the Netherlands. It set up a subsidiary to establish a mixed sale and rent housing project in Belgium. The Dutch Minister refused to sanction that project because it would not be based in the Netherlands. The European Court of Justice held that the Minister had seemingly exercised an unqualified discretionary power for which no objective, non-discriminatory criteria had been published. The sole reason for refusal had been that the project would be outside his country. That decision potentially represented an interference with the right to free movement of capital among EU states contrary to Article 56 of the EU Treaty. It was for the national court to establish whether there had been lawful excuse. For a copy of the judgment, click here.

8th September 2009
Lambeth LBC
Report of Investigation No: 07B09106
The complainants were tenants of a council flat. In 2000 they applied to purchase it under the 'right to buy'. That application was correctly refused because the council did not own the freehold of the block and its lease had less than 50 years left to run. They re-applied to buy the flat in 2005, after discovering that the council had acquired the freehold of the block of flats in 2001 - only six months after their initial application. The local government Ombudsman found maladministration causing injustice. The council knew in 2001 that the tenants wanted to buy their home and it should have notified them that they could do so when it bought the freehold. For a copy of the full report, click here.

28 July 2009
R v Charles
[2009] EWCA Civ 1570
The defendant, a landlord, was subject to a 3-year ASBO preventing him from causing harassment, alarm or distress. On the complaint of a tenant - that he had been woken and assaulted by the defendant who had threatened to evict him or lock him in his room - the Crown prosecuted for breach of the ASBO. The defendant claimed that he had "reasonable excuse" (Crime & Disorder Act 1998 section 1(10)) for what he did, denied the assault and relied on the rent arrears. The trial judge directed the jury that the burden was on the defendant to prove reasonable excuse and they convicted. The Court of Appeal allowed an appeal. The jury had been misdirected. Once a defendant had raised a factual claim of reasonable excuse, it was for the prosecution to prove to the criminal standard that he had no reasonable excuse. For a copy of the judgment, click here.

8 June 2009
R(Neville) v Wandsworth LBC
[2009] EWHC 2405 (Admin)
The claimant's mother died in 2008. She had been a secure tenant. In 2004 a suspended possession order had been granted but, even though breached, was never enforced. The claimant asked the council to allocate him a tenancy of his mother's home under the discretionary policy in its allocation scheme for non-statutory succession. The council declined because its policy referred to situations where a "tenant dies". The High Court dismissed a claim for judicial review. The mother's tenancy had ended when she breached the possession order. The tenancy had not been restored in her lifetime and the right to apply for its restoration died with her: Austin v Southwark LBC [2009] EWCA Civ 66. Therefore, no discretion arose under the council's scheme because the deceased had not been a "tenant". Comment: the correctness of this decision may be considered by the Supreme Court when it hears the appeal in Austin v Southwark LBC.

Housing Law Articles

Eviction by the magistrates: the new closure orders
J. Luba
[2009] 13 Landlord & Tenant Review 171

Recent Developments in Housing Law
J. Luba and N. Madge
[2009] October Legal Action 22

Housing Benefit Law Update - Part 31
B. Harris, D. Rutledge and D. Watkinson
[2009] October Legal Action 31

Retaining Freeholds
(Shared ownership)
J. Driscoll and J Lockley
[2009] Inside Housing 9 October, p37
For a copy of the article, click here.

Housing Law Consultations

[THIS WEEK] Closing on 14 October 2009
The consultation on proposals to extend the protection of tenants who find themselves facing eviction when their landlords default on mortgage payments. For a copy of the consultation paper, click here.

Closing on 23 October 2009
The consultation on the new Housing Allocation Code of Guidance for England. For a copy of the consultation draft, click here.

Closing on 30 October 2009
The consultation on extending the remit of the new social housing regulator (the Tenant Services Authority) to cover council housing as well as housing associations. For a copy of the consultation paper, click here.

Closing on 26 November 2009
The consultation exercise on proposed changes to the Approved Document for Part J (Combustion appliances and fuel storage systems) of the Building Regulations. For a copy of the consultation paper, click here.

Housing Law Events

[THIS WEEK] 13 October 2009
Social Housing Allocation
A Lime Legal Conference in London
For the details, click here.

[THIS WEEK] 14 October 2009
Anti Social Behaviour & Social Housing
A Lime Legal Conference in London
For the details, click here.

[THIS WEEK] 15 October 2009
Introduction to Disrepair
A HLPA training seminar
For the details, click here.

[THIS WEEK] 15 October 2009
Housing for Persons from Abroad
A Garden Court Chambers evening seminar.
For the details, click here.

17-19 November 2009
Letting & Homelessness
A CIH Conference.
For the details, click here.

18 November 2009
Housing Law Update
The HLPA meeting
For the details, click here.

30 November 2009
Crime & Anti-Social Behaviour
A NHC Conference in Harrogate
For the details, click here.

2 December 2009
Residential Landlord & Tenant
A Professional Conferences event
For the details, click here.

15 December 2009
The Housing Law Conference
An HLPA event
For the details, click here.

16 December 2009
Housing Disrepair
A LAG training day.
For the details, click here.

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