Issue 172 - 29 March 2010

Monday 29 March 2010

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The Latest Housing Law News

More Assured Tenants: at present a tenancy cannot be an assured (or assured shorthold) tenancy if the rent exceeds £25,000pa - about £481pw. This means that many relatively modest rentals (particularly of houses let to a number of students as joint tenants) are outside statutory protection. On 25 March 2010 the Government laid an order increasing the rent threshold to £100,000pa with effect from 1 October 2010. For a copy of the order, click here. For the explanatory memorandum and impact assessment (dealing with the knock-on effects e.g. in relation to protection of tenant's deposits) click here (and scroll down to No. 908).

The Future for Council Housing: the Government announced on 25 March 2010 that, following a consultation last year on the reform of council housing finance, it intended to dismantle the current Housing Revenue Account subsidy system and to replace it with a devolved system of financing and accountability. For a copy of the announcement, click here. For a summary of responses to the 2009 consultation, click here. For the consultation document on the new proposals (responses required by 6 July 2010), click here. For an assessment of the impact of the new proposals, click here.

The last pieces of the jigsaw: this week sees the end of current arrangements for regulation of social housing in England. From 1 April 2010 the Tenant Services Authority becomes the new cross-domain regulator. Over the past few weeks, a torrent of regulations and orders have been made to enable the new regime to take effect (see last week's Bulletin). For the final pieces of the jigsaw see: (1) The Housing and Regeneration Act 2008 (Registration of Local Authorities) Order 2010 (for a copy, click here ; (2) The Housing and Regeneration Act 2008 (Commencement No. 7 and Transitional and Saving Provisions) Order 2010 (for a copy, click here) and (3) The Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010 (for a copy, click here ) .

Housing and Anti-Social Behaviour: on 23 March 2010 the Government published new guidance designed to help local authorities and other agencies to address anti-social behaviour related to gypsies and travellers. For a copy of the guidance, click here. In a more general statement accompanying publication of the new guidance the Secretary of State for Communities said: "Local councils and the police have strong powers and tools to crack down on anti-social behaviour - and I expect them to be used to the full." For the full statement, click here.

Mortgage repossessions: new statistics published by the Financial Services Authority show that over 54,000 homes were repossessed last year by mortgage lenders. These figures are higher than those published by the Council of Mortgage lenders because they include action by non-CML members and repossessions under "second" charges. For the FSA statistics on mortgage lending March 2010 Edition, click here.

Tenants take over: long leaseholders wanting to take over management of their homes need to establish Right to Manage companies and then serve appropriate notices on the landlords. New regulations made on 14 March 2010 and coming into force on 19 April 2010 replace the relevant documentation with new versions. For a copy of the regulations, click here.

Homelessness: the Chief Analyst at the NHS had just published a comprehensive guide to Healthcare for Single Homeless People. For a copy, click here.

The Latest Housing Case Law

26 March 2010
Gibbons v Bury MBC
[2010] EWCA Civ 327
Mr Gibbons was an assured shorthold tenant in rent arrears. His landlords gave two months' notice seeking possession. Mr Gibbons completed an application form for council housing in which he stated that he could not afford his rent, had to move out of his home 15 days later, and would then become homeless. He left the tenancy when the notice expired and later applied for homelessness assistance. The council decided that he had become homeless intentionally. The first issue in the Court of Appeal was whether the first application for council housing had triggered the council's duties to assist those applicants who were threatened with homelessness. Lord Justice Jackson said: "When the Council received that application form, the Council clearly had reason to believe that Mr Gibbons and his daughter were threatened with homelessness. That, in my view, is sufficient to trigger the obligations of the Council under Part 7 of the 1996 Act." For the full judgment, click here.

24 March 2010
First Plus Financial Group v Hewett
[2010] EWCA Civ 312
A husband and wife jointly owned their matrimonial home. The husband fell heavily into debt and persuaded his wife that the only option for keeping the family together in the home was to jointly re-mortgage the property to clear their debts. What he did not tell her was that he was having an affair that eventually led to the couple divorcing. Although she acquired her husband's share of the home in the divorce the wife could not manage the repayments and the lender sought possession. She applied to set aside the mortgage based on her husband's undue influence and his breach of an obligation of candour and fairness. The judge granted possession but the Court of Appeal set aside his order and the mortgage. For the full judgment, click here.

24 March 2010
Chasewood Park Residents Ltd v Kim
[2010] EWHC 579 (Ch)
The claimant landlords sought ground rent and service charges from the defendant tenants. The tenants defended the claim on the basis that the landlords were estopped by a representation from claiming the ground rent and that the service charges were greater than reasonably payable. The judge upheld the claim and struck out the defence. The High Court allowed the tenant's appeal. The judge had not been justified in dealing with the trial as he had and he had failed to recognise that there was a defence which required to be tested. The case was remitted for rehearing. For the full judgment, click here.

19 March 2010
National Westminster Bank v Rushmer
[2010] EWHC (Ch) 554
Mr Rushmer gave a personal guarantee to secure the debts of a company. When the company defaulted, the bank enforced the guarantee and obtained charging orders over his property including the matrimonial home jointly owned by Mr Rushmer and his wife where they lived with their children. The bank then sought orders for possession and sale. The judge initially made an order suspended on terms but the wife later applied for a further unconditional postponement. The bank sought and obtained an outright order. The High Court dismissed an appeal. The wife's rights to respect for the home protected by Article 8 had been taken into account in exercising the discretion to order sale. The net proceeds of sale would enable her to more modestly accommodate herself and the children. For a copy of the judgment, click here.

18 March 2010
Scullion v Colleys
[2010] EWHC (Ch) 572, [2010] All ER (D) 181 (Mar)
Mr Scullion wanted to buy a flat as a rental investment. He applied for a buy-to-let mortgage. The defendants provided a valuation that the proposed purchase price was a reasonable market value and that the likely rental income would be £2000pcm. The purchase proceeded but Mr Scullion was never able to let the flat for more than half the advised rent. When he sold, he realised much less than his purchase price. The High Court held that the valuation had negligently over-assessed both the market price and the likely rental income and that the valuers were liable to Mr Scullion for his loss.

15 March 2010
Earl Cadogan v Panagopoulos
[2010] EWHC (Ch) 422
Five tenants in a block of flats exercised their statutory right to acquire the freehold. Before the transaction completed, the landlord granted a 999 year lease of the caretaker's flat in the basement and of the floor surface of a lightwell. On an application by the five tenants, a judge held the 999 year lease void as being granted contrary to the ant-avoidance provisions in Leasehold reform etc Act 1993 section 19. The High Court dismissed an appeal by the freeholder. The attempt to effectively exclude certain of the common parts from the freehold failed. For the full judgment, click here.

Housing Law Articles

Housing Update
G. Peaker
[2010] 154 Solicitors Journal (Issue 11) p26
To read the article, click here.

Think Twice
(commentary on Barber v Croydon LBC)
S. Evans
[2010] Inside Housing, 25 March, p29
To read the article, click here.

Taking exercise
(EU treaty rights and access to housing)
P. Stanley
[2010] 154 Solicitors Journal (Issue 11) p21
To read the article, click here.

Housing Law Books

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 advisors 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.

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.

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

Housing Law Consultations

Closing on 16 April 2010
The Equality & Human Rights Commission consultation on non-statutory guidance under the Equality Bill. For copies of the consultation documents and further details, click here.

Closing on 28 April 2010
The HM Treasury consultation on investment in the private rented sector. For a copy of the consultation paper, click here.

Closing on 30 April 2010
The Ministry of Justice consultation on minimum thresholds of debt default necessary to found Orders for Sale of debtor's homes. For a copy of the consultation paper, click here.

Closing on 30 April 2010
The FSA consultation on proposals to help ensure that mortgage borrowers in arrears are treated fairly. For a copy of the consultation papers click here.

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

Housing Law Events

15 April 2010
Judicial Review Conference
A conference organised by Garden Court Chambers in London (to be repeated in Birmingham in July 2010).
For the details, click here.

29 April 2010
Homelessness and Lettings
A Lime Legal Conference in London.
For the details, click here.

29 April 2010
Public law and housing
A LAG Training event in London.
For the details, click here.

29 April 2010
Homelessness: getting past the gatekeepers!
A Garden Court Chambers evening seminar.
For the details, click here.

13 May 2010
Social Housing Law and Practice
A Lime Legal Conference in London.
For the details, click here.

18 June 2010
Housing and Anti-Social Behaviour
A Jordans Conference In London
For the details, click here


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