Update: housing law (2)

Security of tenure

Under the Housing Act (HA) 1988, Sch.2A, paras 1 and 2, a landlord can opt in to a fully assured tenancy at the outset by a notice served on the tenant prior to the tenancy being entered into that states that the assured tenancy is not shorthold: para 1. The landlord can also grant greater security at a later date: para 2. The inclusion of the words 'assured tenancy' on the front cover of a rent book did not amount to a statement that the tenancy to which it related was not shorthold as an assured shorthold tenancy is itself a type of assured tenancy (Andrews and others v Cunningham [2007] EWCA Civ 762). The reference in para 1 to a notice being 'served' was a reference to the service of a written notice. In Andrews the rent book was clearly intended and used simply to record the payment of rent.

There can only be one succession to a secure tenancy (HA 1985, s87). Section 88(1)(b) defines a succession as including a joint tenant becoming a sole tenant. In Birmingham CC v Walker [2007] UKHL 22 the House of Lords held that s88(1)(b) only related to events concerning secure tenants, not to events which happened before the tenancy became secure. It followed that where a joint tenancy was granted before the security of tenure regime existed (before the Housing Act 1980 came into force) and the joint tenant became a sole tenant before that date, the sole tenant was not a successor for the purposes of s88(1) and her son was entitled to succeed to her tenancy on her death.

Tenancy terms

Rent due under assured periodic tenancies can be increased in accordance with sections 13 and 14 of the HA 1988 but only if the tenancy contains no 'provision' in it for increasing the rent. In Contour Homes Ltd v Gary Rowen [2007] EWCA Civ 842 the Court of Appeal held that such provisions included not only clauses that provided for an increase in rent by reference to fixed sums determined by a formula, but also to clauses that allowed increases in unspecified amounts determined by some other method.

In the unusual case of Graves v Graves [2007] EWCA Civ 660 the parties were divorced in 1997. Their financial affairs were settled by an order dated 5 January 1998. The ex-wife received a lump sum and the ex- husband agreed to pay £300 per month by way of maintenance. The ex-husband retained a property in his sole name, which he rented to tenants. In November 2004 it became vacant and the ex-wife asked if she could move into it. The ex-husband agreed to her being his tenant but made clear that he wanted rent for her occupation and that she should not view the accommodation as payment in lieu of maintenance. He was aware that his ex-wife had no income and would be reliant on housing benefit. He asked her to confirm with the local authority that they would pay housing benefit, which the authority did. In December 2004 he therefore granted his ex-wife an assured shorthold tenancy for a period of 12 months at a rent of £1,150 per month, requiring a deposit of £12,000.

Shortly after moving in, the ex-wife was notified by the local authority that they had wrongly advised her and that she was not eligible for housing benefit as her landlord was the parent of one of the children living in the property. Unable to pay the rent, she made a number of proposals to her ex-husband, in particular offering to vacate in July 2005 if he repaid all or a substantial proportion of her deposit. He refused and stated that he would use the deposit for rent and that she could remain living in the property until that money had been exhausted.

In January 2006, the deposit having been entirely utilised as rent, he served the relevant statutory notices on his ex-wife and later commenced proceedings for possession. In her defence, the ex-wife claimed (as a set-off) maintenance due from her ex-husband which had not been paid.

At the possession hearing the judge held that the tenancy was void for mistake or had been frustrated. He made a possession order but held that the ex-wife was entitled to the return of the deposit and the rent she had paid, that her ex-husband was in turn entitled to set off against that sum damages for use and occupation of the property but at a reduced rate of £850 per month and only from 31 July 2005 (when the ex-wife had offered to vacate). The judge therefore ordered that the ex-husband pay the balance £8,050 to his former wife. Although not requested to do so by any party, he also varied the 1998 maintenance order. The Court allowed the ex-husband's appeal and held:

• The essence of the agreement was that he would grant a tenancy to his ex-wife on the basis that the rent would be paid by housing benefit; it was therefore an implied condition of the agreement that if housing benefit was not payable, the tenancy would come to an end. Accordingly, when the local authority stated that housing benefit would not be paid, the tenancy ended.
• On the question of damages, the court agreed that the ex-wife ceased to be liable from 31 July 2005 that her liability to pay arose again on the service of the statutory notices requiring her to vacate. The Court also held that on the evidence the appropriate damages were £1,045 per month.
• Both parties had believed the hearing to be dealing only with the question of possession and the district judge had been wrong to consider the question of maintenance.

Human rights

The circumstances in which a registered social landlord might be held to be a public authority for the purposes of the Human Rights Act 1998 have been limited by the House of Lords. YL v Birmingham CC & others [2007] UKHL 27 concerned whether a private company running a care home could be a public authority. Section 6(3)(b) provides that a public authority includes 'any person certain of whose functions are functions of a public nature'.

It held that it was not, contrasting the functions of a local authority care home as fundamentally different to those carried out by a private care home. The former are carried out pursuant to statutory duties and responsibilities imposed by public law, whereas the latter are governed by private law.

In drawing up a list of relevant factors to the issue, it also held that in Donoghue v Poplar Housing and Regeneration Community Association Ltd [2001] EWCA Civ 595; [2002] QB 48 the Court of Appeal had been wrong to rely on the close historical and organisational links between the association and the local authority when determining that the association was exercising a function of a public nature. These factors had no bearing on the function that the RSL was performing.

Disability Discrimination Act

In Lewisham LBC v Malcolm [2007] EWCA Civ 763 a secure tenant who suffered from schizophrenia lost his security of tenure by subletting his home (see p1260). Possession proceedings were issued which he defended by asserting that they were discriminatory contrary to section 22(3)(c) of the Disability Discrimination Act 1995. The Court of Appeal upheld that defence, finding that:

• the schizophrenia was a disability as it had a substantial (more than minor or trivial) effect on the tenant's ability to carry out normal day to day activities;
• the reason for commencing proceedings was because of the subletting. The purpose of the 1995 Act was to provide some protection for people in the defendant's position and there was an appropriate relationship between his decision to sublet and his disability. The decision to evict consequently related to the defendant's disability;
• the claim for possession was consequently discriminatory and unlawful and provided a defence to the claim; and
• the landlord did not need to know that the defendant had a disability when it decided to evict for the defence to apply.

Anti-social behaviour

Where the defendant was prevented by an injunction granted under Housing Act 1996, s153C from entering the locality where his mother and sister lived or from threatening violence or harassing people living in the area, he was in breach of that order by visiting the family home despite the fact that he had been invited to visit by his sister and mother (Accent Foundation Ltd v Lee [2007] EWCA Civ 665).

Although it is possible for the person for whose benefit an injunction is obtained to waive any breach, in some circumstances an invitation by a beneficiary would not be sufficient to amount to a waiver, in particular where there is a public interest in enforcing the injunction. In addition to the mother and sister, the housing association and other local residents were also beneficiaries of the injunction and they had not agreed to waive the breach.

The Welfare Reform Act 2007, s31, which is brought into force under Welfare Reform Act 2007 Commencement (No. 1) Order 2007 (SI 2007/1721), makes provision for the controversial pilot scheme on the imposition of a sanction, in the form of reduced housing benefit, for claimants who have been evicted from their homes for 'anti-social' behaviour. See also Housing Benefit (Loss of Benefit) (Pilot Scheme) Regulations 2007 (SI 2007/2202) and Housing Benefit (Loss of Benefit) (Pilot Scheme) (Supplementary) Regulations 2007 (SI 2007/2474).