Is your tenancy/licence roadworthy?. Objectives We will explore the legal and regulatory requirements in relation to the content of occupancy agreement.

Is your tenancy/licence roadworthy?

Objectives

We will explore• the legal and regulatory requirements in relation

to the content of occupancy agreement• Identify terms that are inappropriate and need to

be changed or gaps• Recent developments and changes in legislation

Licence Tenancy debate

Its not a licence if term, parties and premises identified, payment of some form and exclusive possession

The case defined exclusive possession:• sole use of part of the accommodation • landlord does not need to exercise unrestricted access to the premises, to

provide services and attendance• All occupants under the Protection from Eviction Act 1977 (28 day NTQ)

req unless excluded – Hostel managed by an RP/LA

– Sharing accommodation with landlord

Tenure standard

• Consumer standard – regulator only act in cases of ‘serious detriment’ to tenants– Required Outcome - Registered providers shall offer

tenancies or terms of occupation which are compatible with the purpose of the accommodation, the needs of individual households, the sustainability of the community and the efficient use of housing stock.

– They shall meet all applicable statutory and legal requirement in relation to the form and use of tenancy agreements and use of their housing stock.

Agreement terms

• Enforceable in Court

• Human Rights – RPs (managing agents) and LAs

• Fair contract terms– All agreements are contracts

• Don’t discriminate

• Understandable

Human Rights Defences

• Article 8 right to respect to … home • Number of cases where occupiers have no security of

tenure e.g. Ground 8 licence holders and s21 served on ASTs Pinnock, Frisby Hall and Powell

• Two defences – Public law organisation taken unlawful decision e.g.

not followed their policy and procedure– Proportionality: possession not necessary to resolve

problem

Corby BC v Scott and West Kent HA v Haycroft [2012]

• The Court of Appeal held • where an occupier raises an Article 8

proportionality defence, the county court should ensure that – Only relevant matters are taken into account and – Consider at an early stage whether the facts are sufficiently

exceptional to justify a full hearing of the proportionality issue

• The county courts were advised not to let understandable sympathy for a tenant to effectively lower the very high threshold.

Office of Fair Trading Guidance on unfair terms in tenancy agreements

November 2001• EU directive on unfair terms in consumer

contracts applies to all occupancy agreements

• Landlords are suppliers under consumer law and can be proceeded against by the OFT, Trading Standards and other bodies

• Terms successfully challenged in Europe ‘no pets’ and ‘no flammable materials’

• There must not be a significant imbalance in the rights and responsibilities of the parties to the contract

• Contracts intelligible to ordinary consumers without legal advice

Equality Act 2010

• New form of disability discrimination• A person (A) discriminates against a

disabled person (B) if– A treats B unfavourably because of

something arising in consequence of B’s disability, and

– A cannot show that the treatment is a proportionate means of achieving a legitimate aim

– Does not apply if A shows they did not know or could not reasonably be expected to know that B has a disability

Plain English

• Tenancy/licence easy read

• You – not the tenant or licensee

• Descriptions of what you mean e.g. nuisance

• Important information at the beginning

Example of unintelligible term

• The Tenant hereby agrees and undertakes, to the intent that such agreement and undertaking shall be an obligation under this Assured Short Hold Agreement, to pay to the Society the said sum of £[ ] insert the same sum as is mentioned in sub-clause 1.09 above mentioned in the immediately preceding sub-paragraph of this Agreement, by an initial instalment of £[ ] insert amount of first instalment and thereafter by [ ] insert number of further instalments to be paid instalments each in the sum of £[ ] insert sum for each further instalment such instalments to be paid on the Monday of each week the first of such instalments to be paid on [

• ] insert date for the first payment, which ideally should be the first Rent payment day after the date of this new agreement. Timely payment of each said instalment shall be of the essence.

Mental Capacity

• Mental Capacity Act (MCA) 2005 – presumption of capacity – low threshold of understanding

• Person lacks capacity same agreement as if they had capacity but property related transaction specifically listed s18 MCA only those below can sign the agreement – Lasting Power of Attorney– Court of Protection appointed Deputy– Single order from Court of Protection

• Court of Protection guidance on this area

• To give a written agreement (not legal requirement)

• Names and address (communal areas)• Date and duration• Purpose and link to support• Rent/accommodation charge• Altering the agreement• Serving of notices

General Terms

Landlord Responsibilities

• Possession (quiet enjoyment v privacy)

• Access arrangements (emergency)

• Succession (periodic tenancies)

• Housing management information

• Repairs

Resident Responsibilities• Possession

• Pay rent/accommodation charge and former arrears

• Use of home – Only main home (absence and abandonment)

– Lawful use (smoking)

– Subletting, number of occupants

• Visitors

• Nuisance and ASB

• Harassment

• Noise

• Disruption

Resident responsibilities

• Pets

• Alterations

• Damage

• Cleanliness

• Reporting repairs

• Access

• Fire, health and safety

House rules

• Gravitas – mixture of serious and non serious

• Change only with consent of all residents

• Serious terms in occupancy agreement

Ending agreements

• Resident giving notice

• Moving out (former occupant goods)

• Landlord giving notice– Must say why Frisby, Hall and Powell?– Licence excluded reasonable notice,

Protected 28 days in all circumstances

Social Housing Fraud Act

• Effect in October 2013

• Criminal Offence RP tenants sublet or part with possession of their home

• Assured (shorthold) tenants cannot regain possession by moving back in

Taylor v Spencer [2013]

• Fixed term AST defaulted to periodic weekly AST - rent due on Monday. Landlord served a notice ending on 1st January 2013 (Saturday) which had a saving clause

• “Or (b) at the end of your period of tenancy which will end next after the expiration of two months from the service upon you of this notice.”

• Court of Appeal ruled notice valid on two points– s21 notice was valid as the expiry date was more than two months

from the date of service and under s21(1)(b) this is all that was required.

– if one date is clearly primary and the other is seen as a fall-back then the position is clear to a reasonable reader of a notice.

– If the AST is fixed term use a 21(1) (b) notice even if it has defaulted into periodic and make sure you have the saving clause

Final Words

• Don’t forget the Sitra helpline www.sitra.org

• Fill in the evaluation form

Thank you