The government has published a response to the Rugg Review.
One of the proposed changes is that the upper limit threshold on Assured and Assured Shorthold Tenancies (set at £25,000 by para 2(1)(b) of Schedule I of the Housing Act 1988) should be raised to £100,000.
Section 2A of the Act allows this amount to be easily varied by Stautory Instrument and we have heard on the grapevine that the government is minded to do this as soon as October this year.
This will have far reaching consequences, particularly in the South-East as the majority of higher value tenancies that were outside the Act will not be brought into it. This will mean a large increase in the number of tenancies requiring to have their deposits protected and changes in the way possession proceedings are brought for these tenancies.
There are some important uncertainties. Will it be the case that the raise will be retroactive such that all tenancies under a rent of £100,000 per annum will automatically fall inside the Act? If so, this will affect tenancies already in place and will mean that their deposits will need to be placed in protection.
It would be better if the change was made so that only new tenancies after the start date were caught. However, in that case it will be necessary to bear in mind that renewal tenancies will drop inside the Act.
Filed under: Uncategorized , deposits, Housing Act 1988, legislation
Where a suspended possession order is granted by the court but suspended on terms there has been a problem in the past. The reason for this is that the Court order has the effect of ending the tenancy but prevents eviction of the tenant as long as they comply with the terms of the order. The result is that the tenant becomes a, so-called, ‘tolerated trespasser’ on the date of possession as stated on the order. A tolerated trespasser is a peculiar legal fiction which denotes that the former-tenant has lost ther tenancy rights thereby making them a trespasser but cannot be removed from the property hence the use of the word tolerated (admittedly a rather strained use!).
The loss of tenancy rights has some rather bizarre consequences such as an inability for the tenant to enforce repairing covenants against landlords and the landlord losing the right to rely on the relevant Housing Act provisions and the tenancy agreement itself. So the landlord’s ability to increase the rent, for example, is also affected.
However, the House of Lords has eliminated this problem by holding in the cases of Knowsley Housing Trust (Respondents) v White (FC) (Appellant) Porter (FC) (Appellant) v Shepherds Bush Housing Association (Respondents) [2008] UKHL 70 that the tolerated trespasser is indeed a fiction and does not exist.
In Knowsley they allowed White’s appeal against the decision of the Court of Appeal that her assured tenancy had come to an end when she failed to comply with the terms of a suspended possession order. The Lords held that assured tenancies only came to an end when the tenant either voluntarily gave up possession or when they are evicted pursuant to an order. Therefore an assured tenant cannot become a tolerated trespasser.
This could be a problem where a landlord with a previously assumed tolerated trespasser has taken advantage of their status by refusing to repair the property. As the status cannot now have ever arisen these reinstated tenants will have a claim for disrepair against their landlords.
The situation will become a lot clearer when the Housing and Regeneration Act 2008 comes into force. The Act received Royal Assent on 22 July 2008. Schedule 11 of the 2008 Act makes amendments to the Housing Act 1985, Housing Act 1988 and the Housing Act 1996 to prevent the tolerated trespasser arising by stating that a tenant’s assured or secure tenancy does not end until the landlord has obtained a Court Order for possession and the eviction has actually taken place. Existing tolerated trespassers still in occupation of their original properties as their only or principle home, have had their tenancy status reinstated by virtue of “replacement tenancies”, which reinstate the tenant’s rights and obligations of the tenancy they held prior to the Possession Order coming into effect. The possession order itself will remain enforceable against the new tenancy.
Filed under: Uncategorized , Housing Act 1988, legislation, litigation
29 December, 2008 • 19:49
The Corporate Manslaughter and Homicide Act 2007 came into force on 1 April 2008. This Act introduced a new offence of Corporate Manslaughter (Corporate Homicide in Scotland) which applies to organisations that cause the death of an individual by way of a gross breach of their Duty of Care.
The Duty of Care is the same as that set out by the common law of negligence but for lettings agents or corporate landlords would certainly include their basic requirements to ensure that a property is safe and that a landlord’s Gas Safety Certificate has been obtained.
The offence is triable in the High Court before a jury. The jury must consider whether the breach of the Duty of Care is one which falls “far below what can reasonably be expected of the organisation in the circumstances”. Factors to consider will include breaches of any legislation designed to protect health and safety and the seriousness and risk of death posed by such breaches and whether “there were attitudes, policies, systems or accepted practices within the organisation that were likely” to have encouraged or tolerated the breach of Duty that led to the death.
It is important to note that the offence is only committed if it can be shown that it was the manner of organisation and management of an organisations activities by its senior management that led to the death. In this case senior management is defined as those responsible for making or implementing decisions as to the management or organisation of the whole or a substantial part of the organisations activities.
For many organisations it will be the attitude and policy considerations that will cause the greatest concern. However, there is no requirement to spend excessive time dealing with individuals as long as the senior management is making the right decisions and promoting the right policies. However, the definition of ‘senior management’ could be very wide. It will certainly include board members, lettings directors, operations managers, and possibly branch managers. It should not be forgotten that the Act applies equally to partnerships and this form of operation provides no protection. Sole traders were, of course, already liable under the more common charge of manslaughter by gross negligence.
The key point to protection is the need for all organisations to ensure that they have clear, written policies in respect of all health and safety matters, whether these are in connection with their internal or external relations and further to ensure that staff are fully aware of and trained in these policies. Finally, it is important that no ‘culture’ of ignorance of the policies is promulgated by the senior management and that any breach of policy is dealt with swiftly and seriously.
Filed under: Uncategorized , legislation
