Tenants in the public sector who enjoy security of tenure have secure tenancies see Housing Act 1985 Part IV.Secure tenants can only be evicted if
a)the landlord serves a notice seeking possession (or persuades the court that it is just and equitable to dispense with such a notice);
b)the landlord proves a ground for possession; and
c)(in most cases) the landlord satisfies the court that it is reasonable to make a possession order.
Secure tenants also enjoy other important rights, such as the right to buy (often at a discount) the right of spouses, civil partners and other family members to succeed to the tenancy after death of the tenant, rights to mutual exchange etc.
A secure tenancy exists at any time when
a)the property is a "dwelling-house" - see s112;
b)it is let as a "separate dwelling" ;
c)the "landlord condition" is satisfied - see s80;
d)the "tenant condition" is satisfied - see s81; and
e) none of the exceptions in Sched 1, ss89(3) and (4), 90(3) and (4) and 91(2) and (3).
applies.
Licensees may enjoy the same rights as secure tenants, provided that the licence was not granted as a temporary expedient to someone who entered the premises as a trespasser.See s79(3) and (4).
The landlord condition
Housing Act 1985 s80 lists the types of landlord who can be secure landlords.
It includes
a)local authorities - see s4.
b) housing action trusts - see s4.
c) urban development corporations - see s4.
d) housing co-operatives - see s5.
Note that if a housing association granted a tenancy before 15 January 1989, and all the other requirements of a secure tenancy exist, that tenancy remains a secure tenancy - see s80(1) prior to amendment by Housing Act 1988 and Housing Act 1988 s35.Tenancies granted by housing associations on or after 15 January 1989 are likely to be assured or assured shorthold tenancies within the meaning of Housing Act 1988.
The Court of Appeal has held that the landlord condition is not satisfied if there are joint landlords and only one of the joint landlords comes within the list of bodies specified in s80(1) - see R v Council of City of Plymouth and Cornwall CC ex p Freeman (1987) 19 HLR 328, CA.
The tenant condition
Housing Act 1985 s81
In order to gain and retain public sector security of tenure, tenants must occupy premises as their only or principal home (cf Housing Act 1988 s1(1)(b) ("as his only or principal home"), Leasehold Reform Act 1967 s1 ("as his residence") and Rent Act 1977 s2 ("as his residence").Security of tenure and associated rights, such as the right to buy, are lost if secure tenants cease to occupy premises as their only or principal home (Sutton LBC v Swann (1986) 18 HLR 140, CA) or if they sublet or part with possession of the whole (Housing Act 1985 s93). However, it is possible for tenants or licensees to have two or more homes in the public rented sector, but only the one which is the principal home can be secure.However, ceasing to occupy does not normally terminate the tenancy it merely stops it from being secure.
In order to maintain a home a tenant need not be physically resident, so long as there is an intention to return after a temporary absence and some physical sign of continued occupation (eg, furniture and possessions in the property).Two houses can be occupied as a home at the same time - Crawley BC v Sawyer (1988) 20 HLR 98, CA where a council tenant went to live with his girlfriend for a period of approximately one and a half years during which time the gas and electricity supplies to the premises which he rented from the council were cut off. It was held that the rented premises remained his principal home throughout the period.
It is possible for a tenant to lose security of tenure by reason of nonoccupation but to regain it by reoccupying the property before service of a notice to quit - see Hussey v Camden LBC (1995) 27 HLR 5, CA where, as the tenant was occupying the property as his only or principal home at the time of service of the notice to quit, the Court of Appeal held that the earlier loss of security was irrelevant.
Sub-letting of the whole of premises means that any tenancy ceases to be secure - see s93 and Jennings v Epping Forest DC (1993) 25 HLR 241, CA, Muir Group Housing Association Ltd v Thornley, (1993) 25 HLR 89, CA and Brent LBC v Cronin (1997) 30 HLR 43, CA, cf Merton LBC v Salama (1989) CAT No 89/169; June 1989 Legal Action 25, CA (parting with possession of part of premises).Parting with possession is not to be inferred simply from the fact that another person has been allowed to use and occupy a tenants home during his temporary absence - Lam Kee Ying v Lam Shes Tong [1975] AC 247, PC.
Excluded categories
See Sched 1 which provides that following cannot be secure tenancies
a)long lessees;
b)introductory tenancies;
c)premises occupied in connection with employment;
d)land acquired for development;
e)accommodation for homeless persons;
f)temporary accommodation for persons taking up employment;
g)private sector leasing;
h)temporary accommodation during works;
i)agricultural holdings;
j)licensed premises;
k)student lettings;
l)business tenancies under Landlord and Tenant Act 1954 Part II; and
m)almshouses;
n)demoted tenancies;
o)family intervention tenancies (Sched 1, para 4ZA, as inserted by Housing and Regeneration Act 2008 s297.
Security of tenure
A secure tenancy cannot be brought to an end by a landlord except by obtaining an order of the court (s82).This principle does not apply where the tenancy has ceased to be secure (eg as a result of the tenant ceasing to occupy as his or her only or principal home - see s81, but N.B. the need for a court order under Protection from Eviction Act 1977) or where the termination is brought about by the action of a tenant by serving a notice to quit on the landlord (see eg Hammersmith and Fulham LBC v Monk[1992] 1 AC 478; [1991] 3 WLR 1144; [1992] 1 All ER 1, HL, Harrow LBC v Johnstone [1997] 1 All ER 929, [1997] 1 WLR 459, HL; Greenwich LBC v McGrady (1983) 6 HLR 361; (1982) 267 EG 515, CA); Newham LBC v Kibata [2003] EWCA Civ 1785; [2004] HLR 28; and Bradney v Birmingham CC; Birmingham CC v McCann [2003] EWCA Civ 1783; [2004] HLR 27.
Note also Harrow LBC v Qazi [2003] UKHL 43; [2003] 3 WLR 792, where by a majority (Lord Bingham and Lord Steyn dissenting) the House of Lords held that the law enabling a public authority landlord to exercise its unqualified right to recover possession, following service of a tenant's notice to quit which has terminated the tenancy, with a view to making the premises available for letting to others on its housing list, does not violate the essence of the right to respect for the home under Article 8(1). Contractual and property rights cannot be defeated by a defence based on Article 8 (Lord Hope and Lord Scott), although in exceptional cases where defendants believe that local authorities are acting unfairly or from improper notices, they can apply to the High Court for judicial review (Lord Millett).See too Lambeth LBC v Kay; Leeds CC v Price[2006] UKHL 10; [2006] 2 WLR 570; McCann v UK ECtHR,App No 19009/04, [2008] HLR 40; andBirminghamCity Council v Doherty[2008] UKHL 57, [2008] 3 WLR 636, although Kay v United Kingdom has been found admissible by ECtHR (Application 37341/06; 17 October 2008).
Notice of proceedings
Housing Act 1985 s83 (as introduced by Housing Act 1996 s147) provides that the court shall not entertain possession proceedings against a secure tenant unless the landlord has served a s83 notice or the court considers it just and equitable to dispense with the requirement.
A s83 notice must state the ground for possession and give particulars of the ground (s83(2)(c)).
As to service see Wandsworth LBC v Attwell (1995) 27 HLR 536, CA and EnfieldLBC v Devonish (1997) 29 HLR 691, CA. If there are joint tenants, it should be addressed to all of them - Newham LBC v Okotoro March 1993 Legal Action 11,
Bow County Court.
Notices must specify a date after which proceedings may be brought which must not be earlier than the date on which the tenancy could otherwise be brought to an end by a notice to quit served by the landlord.(Normally 28 days - see also Protection from Eviction Act 1977 s5.)However a notice may state that proceedings under Ground 2 (nuisance or anti-social behaviour) may be begun immediately.In that case, the notice should specify the date sought by the landlord as the date on which the tenant is to give up possession.
Notices cease to be in force 12 months after the date specified in the notice.If that date passes, a new notice should be served (s83(3)(b) and s83A).
Particulars of the ground
In rent arrears cases the particulars given must at least show the amount claimed, and in all cases the notice must be sufficiently particularised to "tell the tenant what he had to do to put matters right before proceedings are commenced" - Torridge DC v Jones (1986) 18 HLR 107 at 114; (1985) 276 EG 1253, CA. ("The reasons for taking this action are nonpayment of rent" not sufficient - notice invalid.)See too East Devon DC v Williams and Mills December 1996 Legal Action 13,
Exeter County Court(possession claimed under Sched 2 Ground 1 (breach of the terms of the tenancy). The notice set out the relevant terms but in the section marked 'Particulars' merely repeated the terms in full, without indicating the conduct relied upon -possession claim struck out); Slough BC v Robbins [1996] 12 CL 353, Slough County Court (notice seeking possession giving as particulars: "Numerous complaints have been received over a period of time that annoyance and nuisance is being caused to your neighbours by noise and disruptive behaviour. This nuisance and annoyance has been investigated by my staff and I believe the complaints to be substantiated" held to be defective, proceedings struck out); and South Buckinghamshire CC v Frances [1985] 11 CL 152; [1985] CLY 1900, Slough County Court (where it was held that Housing Act 1980 s33(2) (now Housing Act 1985 s83(2)(c)) required detailed particulars which should be similar to those required under Law of Property Act 1925 s146. It must be obvious to tenants what they must do. Although there was discretion to allow amendment of the notice (now contained in Housing Act 1985 s84(3)), the council would not be permitted at a late stage in the proceedings to amend the notice to include a schedule of dilapidations and particulars of nuisance which ought to have been included in the original notice).
However in DudleyMBC v Bailey [1991] 10 EG 140; (1990) 22 HLR 424, CA Ralph Gibson LJ stated that
"The question is whether, at the date of the notice, the landlord has in good faith stated the ground and given the particulars of that ground. The requirement of particulars is satisfied, in my judgment, if the landlord has stated in summary form the facts which he then intends to prove in support of the stated ground for possession. Error in the particulars does not, in my judgment, invalidate the notice, although it may well affect the decision of the court on the merits". (22 HLR at p431)
See too Marath v MacGillivray (1996) 28 HLR 484, CA under Housing Act 1988 s8.
Section 83 expressly enables a court to give leave for a landlord to add to or alter the 'grounds' on which possession is claimed (s83(4)), but is silent about the addition or alteration of the 'particulars' required by the notice. In CamdenLBC v Oppong (1996) 28 HLR 701, CA, the Court of Appeal held that s83(4) allows courts to add to or alter the particulars. The court stated that such leave would be granted only in circumstances where it would be just do so and that the nature and extent of the addition or alteration would always be a critical factor.
The form of notice is prescribed by the Secure Tenancies (Notices) Regulations 1987 SI No.775 (as amended). Paragraph 2(1) of the Regulations states that the notice should be "substantially to the same effect" as that contained in the Regulations.Minor variations are unlikely to invalidate a notice - see DudleyMBC v Bailey(1990) 22 HLR 424, CA where Ralph Gibson LJ held that a notice, although not precisely in the prescribed form, was substantially to the same effect.In City of London v Devlin (1995) 29 HLR 58, CA, the Court of Appeal held that a notice seeking possession which had not been signed by the Director of Housing above that description which appeared on the printed form was "substantially to the same effect" as that prescribed and accordingly valid.Simon Brown LJ stated that "The reality here is that a series of aridly technical points raised by the applicant at trial were defeated by a series of creative, largely procedural rulings" which were not even arguably impermissible.
The court considers it just and equitable to dispense with the requirement of such a notice (s83(1)(b)).This provision brings secure tenancies into line with assured tenancies (cf Housing Act 1988 s8(1)(b)).There have been few Court of Appeal decisions involving cases where landlords have completely failed to serve any notice under s83 or Housing Act 1988 s8. It is "obviously only in relatively exceptional cases where the court should be prepared to dispense with a section 83 notice".(Braintree DC v Vincent [2004] EWCA Civ 415; 9 March 2004 - a case where the Court of Appeal held that a judge was entitled to dispense with the notice on unusual facts.)In Kelsey HA v King (1995) 28 HLR 270, CA it was held that it was just and equitable to dispense with the notice requirement where a notice served was found to be invalid because it had not given adequate particulars of the complaints of nuisance.The court had regard, inter alia, to (a) developments since the commencement of proceedings; and (b) the late stage in the proceedings at which any point about the deficiency in the notice was taken.
Grounds for possession
See s84 and Schedule 2.
There are 18 grounds for possession. The most common are Grounds 1 (rent arrears or breach of an obligation of the tenancy) and Ground 2 (nuisance of annoyance).The burden of proof lies upon the landlord to satisfy the court that the ground for possession is made out.
Reasonableness
Housing Act 1985 s84 provides that in relation to the discretionary grounds (Grounds 1 to 8) the court shall not make an order for possession unless it considers it reasonable to do so.
If one of grounds 1 to 8 is proved, the court may;
a)make an outright order for possession;
b)make a suspended possession order (see N28) an order for possession in (normally) 28 days, suspended on condition that the defendant do pay current rent and £x per week off arrears of £yyyy, the next payment to be made by 4 p.m. on [date].
c)make a postponed order (see N28A) -an order for possession which provides that the date on which the defendant is to give up possession of the property is postponed to a date to be fixed by the court on an application by the claimant. The claimant shall not be entitled to make an application for a date to be fixed for the giving up of possession and the termination of the defendants tenancy so long as the defendant pays the claimant the current rent together with instalments of £[_____] per week towards the judgment debt.
d)adjourn the proceedings, either to a fixed date, or more normally generally, with liberty to restore, often on condition that the defendant do pay current rent and £x per week off arrears of £yyyy, the next payment to be made by 4 p.m. on [date]
e)(rarely) dismiss the claim for possession.
In a public sector possession list, the most common questions one has to consider are Is it reasonable to make a possession order?If it is, is it reasonable to suspend the order?
Housing Act 1985 s84
The court shall not make an order for possession [of a dwelling-house let under a secure tenancy] . . . on the grounds of [ e.g. arrears of rent] unless it considers it reasonable to make the order.
Housing Act 1985 s85(2)
On the making of an order for possession of such a dwelling-house on any of those [discretionary] grounds, or at any time before the execution of the order, the court may (a) stay or suspend the execution of the order.
The question of reasonableness is an overriding requirement' - Smith v McGoldrick (1976) 242 EG 1047, CA.Proof of reasonableness is a separate and distinct requirement in addition to proof of the ground for possession.
Failure to consider reasonableness means that a judgment for possession is a nullity - Shrimpton v Rabbits (1924) 131 LT 478.
See too R v Bloomsbury and
Marylebone County Courtex p Blackburne (1985) 275 EG 1273, CA - consent order whereby Mr Blackburne was paid £11,000 in return for him consenting to possession. He subsequently changed his mind and instructed new solicitors to apply for judicial review to quash the possession order. The Court of Appeal granted his application, approving Glidewell Js conclusion that:
". . . if there is before the court a claim that the defendant is entitled to the benefit of the Rent Acts, the court may not make an order for possession unless it is satisfied, either by evidence or by admission by or on behalf of the defendant, that he is not entitled to that protection." ((1984) HLR 56 at 67)
Exactly the same principles apply to secure tenancies.
Hounslow LBC v McBride(1999) 31 HLR 143, CA- possession proceedings relying on Housing Act 1985 Sch 2 Grounds 1 (non-payment of rent) and 2 (conduct causing nuisance or annoyance). Before the hearing of the claim the parties agreed that a suspended possession order should be made. At a brief hearing, attended by solicitors, a district judge made the order sought, without hearing any evidence. Later Ms McBride applied to have both the possession order and the warrant set aside, claiming that the district judge had not had sufficient material before her to enable her to reach the conclusion that it was reasonable to make the order. The circuit judge allowed the defendants application. The Court of Appeal agreed that the order should be set aside. Nothing in the order itself or in the circumstances surrounding the making of the order indicated that Ms McBride had admitted that it was reasonable to make the order. Nor had the district judge taken sufficient steps to satisfy herself of the reasonableness of making the order.
See too R v Birmingham CC ex p FoleyMarch 2001 Legal Action 29, (2000) 14 December, QBD and Baygreen Properties Ltd v Gil[2002] EWCA Civ 1340; [2003] HLR 12.
The burden of proving that it is reasonable to make a possession order (whether suspended or absolute) lies upon the claimant landlord
In Cumming v Danson [1942] 2 All ER 653 at 655, Lord Greene MRsaid:
"in considering reasonableness . . . it is, in my opinion, perfectly clear that the duty of the Judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in what I venture to call a broad common‑sense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation. Some factors may have little or no weight, others may be decisive, but it is quite wrong for him to exclude from his consideration matters which he ought to take into account."
The requirement of reasonableness "gives the court a very wide discretion" - Bell London and Provincial Properties Ltd v Reuben [1946] 2 All ER 547, CA.
In considering reasonableness, courts should not be concerned with the propriety or impropriety of a landlord's policy or rules, but rather with "the reasonableness in the particular case of ordering possession".Barking and Dagenham LBC v Hyatt (1992) 24 HLR 406, CA.
See the Pre-action Protocol for Possession claims based on Rent Arrears (White Book 2008, Vol. 1, C11-001) which applies to possession claims brought by social landlords.It aims to encourage more pre-action contact between landlords and tenants and sets out various steps which landlords should take before and after issuing possession claims.
Three examples
WoodspringDC v Taylor (1982) 4 HLR 95, CA
The defendants, were in their mid-fifties, had been tenants of the council for 24 years and had a good rent record. Mr Taylor was made redundant and received a large tax demand. His wife became ill.They owed £557 at the start of possession proceedings and £700 at the date of the hearing. By this time, they were receiving benefit and the DHSS was paying current rent plus £1 per week off the arrears. In the county court, a registrar made an absolute possession order. The Court of Appeal set aside the order, finding that no reasonable registrar could have found that it was reasonable to make the order. Waller LJ stated that it was hard to understand a conclusion that it was reasonable to make an order turning them out of their house (at 99).
Second WRVS Housing Society v Blair (1987) 19 HLR 104, CA
The defendant, a secure tenant, had lived in property for seven years when he became affected by a psychiatric illness. His life fell apart and rent arrears mounted. He received supplementary benefit towards the housing costs but spent it on food. A county court judge, finding that there were arrears of £1,198 and that the tenant was still on supplementary benefit, ordered possession suspended for two months in case the debt could be cleared in that time.The Court of Appeal set aside the order, because the judge had failed to consider in detail the question of reasonableness and, in particular, the available welfare benefits. The case was sent back for reconsideration to ascertain more fully the benefits which could be obtained from DHSS in relation to arrears and more generally in relation to [the tenants] condition. Dillon LJ stated,
"It is well known that arrangements can be made with the DHSS when housing benefit is payable to see that the rent is paid direct to the landlord and I feel that is a matter which should have been taken into account."
Brent LBC v Marks(1999) 31 HLR 343, CA
In 1993 the tenant was granted a secure tenancy.Arrears of rent for temporary accommodation were transferred to the rent account. Housing benefit was then credited weekly to the rent account from 1996 to meet current rent. Deductions were made by the DSS from income support and paid to the council in respect of (a) the charges which were ineligible for housing benefit and (b) £2.50 per week towards the arrears. These payments were made quarterly in arrears and so the pattern of the rent account was of regularly accruing arrears which were only reduced four times a year. The council served a notice of intention to seek possession in 1997. Legal aid was not granted to the tenant, but her solicitors wrote to the court drawing attention to the pattern of payment and the reasonableness condition. A circuit judge granted a possession order, suspended on terms that the tenant pay current rent and £2.50. The Court of Appeal allowed the tenants appeal and remitted the case to the county court. The judge ought to have had more regard to the fact that current rent was being paid and that the benefit system was both causing and then dealing with the arrears. Looking at the overall position this was a responsible tenant whose position had stabilized. On a new exercise of the courts discretion, a possession order might not be made.