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You are here: BAILII >> Databases >> The Law Commission >> RENTING HOMES 1: STATUS AND SECURITY (A Consultation Paper) [2002] EWLC 162(15) (28 March 2002)
URL: http://www.bailii.org/ew/other/EWLC/2002/162(15).html
Cite as: [2002] EWLC 162(15)

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Part XV        

Summary of provisional proposals and consultation questions

In this Part, we list our provisional proposals and conclusions, and set out the other issues on which we seek consultees views. More generally, we invite comment on any of the matters raised in this paper and any other suggestions that consultees may wish to put forward. For the purposes of analysing theresponses, it would be helpful if, as far as possible, reference could be made to the numbers of paragraphs in this part.

 

Part I: Introduction

Regulatory impact

                                 15.1              We ask for information about the regulatory impact of our provisional proposals in this paper. (paragraph 1.98)

Part V: The impact of human rights law

Human rights and housing law: some conclusions

                                 15.2              We invite views on whether it should be made clear by statute that registered social landlords should be deemed to be public authorities for the purposes of the Human Rights Act 1998, in relation to their not-for-profit housing activities. (Paragraph 5.77)

Part VI: The consumer approach: focussing on the agreement

The need for a contract

                                 15.3              We provisionally propose that the agreement between the landlord and the occupier should be the place where their respective rights and obligations are definitively set out. (Paragraph 6.6)

                                 15.4              We provisionally propose that our scheme should, subject to the discussion in Part IX, apply to any contract for rent which confers a right to occupy premises as a home. (Paragraph 6.8)

The application of the law on unfair contract terms to housing agreements

                                 15.5              We provisionally propose that all those who enter into contractual agreements within the scope of our proposed scheme should be deemed to be suppliers and consumers within the scope of the Regulations, and thus the requirements of fairness and transparency should apply to all agreements covered by our new scheme. (Paragraph 6.45)

                                 15.6              We provisionally propose that, in relation to agreements covered by our scheme, the requirements of fairness and transparency should not be limited to non-negotiated terms, and should cover negotiated terms as well. (Paragraph 6.50)

                                 15.7              We provisionally propose that the definition of core terms should be left to consumer legislation rather than being included in a Housing Act. (Paragraph 6.53)

                                 15.8              We invite views on whether a special jurisdiction should be created, for example in the rent assessment committee, or the county court, to amend written agreements that do not accurately reflect previous oral agreements. (Paragraph 6.55)

The need for a written agreement

                                 15.9              We provisionally propose that a housing agreement which is made orally or which otherwise fails to comply with statutory requirements as to formality or registration of leases shall nevertheless be treated as a valid agreement between the landlord and the occupier and shall be subject to the regulation of our new scheme. (Paragraph 6.66)

                             15.10              We invite views on whether an oral agreement should become effective as soon as the oral agreement was made; or only after there has been written acknowledgement of the agreement in a letter; or by completion of the written agreement prior to the occupier going into occupation; or, assuming that a written agreement has not been provided, only after the occupier has entered into possession. (Paragraph 6.70)

                             15.11              We provisionally propose that all agreements covered by our new scheme should be put into a written form. (Paragraph 6.74)

                             15.12              We further provisionally propose that the duty to put the agreement into writing should fall on the landlord; that the landlord should be required to provide a copy for the occupier; and that in any court proceedings that might arise under the agreement, the landlord should be required to produce a copy of the written agreement. (Paragraph 6.75)

                             15.13              We provisionally propose that the rules relating to the core terms in Part A of the agreement should include specific requirements for providing occupiers with information about the landlord’s identity (and those of any agents) and a place of business as an address for service. (Paragraph 6.82)

                             15.14              We provisionally propose there should be a new evidential rule, to be used in any claims for arrears, that – in the absence of a system for recording rent payments – there will be a statutory presumption that the rent has been paid. The presumption would be rebuttable. (Paragraph 6.85)

                             15.15              We provisionally propose that the current rules on rent books should be replaced by a compulsory term in the agreement that, in the absence of the occupier having a record of payments made, the landlord should provide a system of payment which is documented, whether in a paper rent book or computer equivalent, and in such a way that the occupier can verify entries. (Paragraph 6.88)

The terms of the agreement

                             15.16              We provisionally propose that the structure of the contract should be prescribed by Act of Parliament. The details of the contents of each part of the contract should be set out in delegated legislation. (Paragraph 6.90)

                             15.17              We provisionally propose that the statutory instrument setting out the terms would also set the requirements as to the format and presentation of the written agreements. (Paragraph 6.94)

                             15.18              We also provisionally propose that the regulations are drafted in such a way that the terms of the agreement set out in the regulations can be translated, verbatim, into the model agreement. (Paragraph 6.95)

                             15.19              We provisionally propose that the Secretary of State should be obliged to consult relevant interests in the housing industry to ensure that the model agreement terms are fair and clear and that, so far as possible and practicable, terms should be drafted in plain English. (Paragraph 6.97)

                             15.20              We invite consultees’ views on whether it would be appropriate to require landlords to provide occupiers with summaries of their agreements. (Paragraph 6.100)

                             15.21              We provisionally propose that the core terms should be included in the written agreement. (Paragraph 6.102)

                             15.22              We invite views on whether other terms, for example the amount of any deposit, should be included as a core term. (Paragraph 6.103)

                             15.23              We provisionally propose that terms relating to security and other legally implied terms should be compulsory terms, which will need to be included in the agreement as fully written out terms, and not be subject to amendment. (Paragraph 6.110)

                             15.24              We provisionally propose that

                                                        (1)      the regulations should prescribe a list of items relating to the parties’ rights and obligations under the agreement which must be covered by a term in the agreement and which will be set out in Part C of the agreement;

                                                        (2)      that in relation to each item there will be a default term which takes effect in default of an express term but can be overridden by an express term;

                                                        (3)      that the agreement should set out the terms in full, not just by reference to the regulations; and

                                                        (4)      that the default terms will be applied either where the landlord has failed to provide a written agreement, or where the agreement fails to address all the prescribed matters. (Paragraph 6.117)

                             15.25              We invite views on the issues which should properly be prescribed in Part C of the agreement. (Paragraph 6.118)

                             15.26              We provisionally propose that legislation should make clear that the appropriate default term will apply where an express written term has been ruled unfair under the Unfair Terms in Consumer Contracts Regulations 1999. (Paragraph 6.121)

Sanctions

                             15.27              We provisionally propose that where a landlord fails to provide a written agreement within (say) the first two weeks of the occupier taking possession, the landlord should be deemed to owe the occupier an amount equivalent to one day’s rent for each day’s delay, starting with the date of entry into possession. There would be specific provision for the occupier to be able to withhold rent as one way of recovering this amount. The amount due would be calculated by the number of days starting on the date on which the occupier entered into possession of the dwelling under the terms of the agreement (not from two weeks later) and ending on the date the written agreement was provided, subject to an upper limit of the equivalent of (say) two months’ (or such other period as may be agreed) rent. (Paragraph 6.126)

                             15.28              We seek consultees’ views as to whether an ongoing sanction is required for cases where landlords still fail to provide a written agreement, despite the loss of rent. Do consultees feel that it would be useful and appropriate to create, in addition, a continuing criminal offence of failure to provide a written agreement by the end of the first two months of the agreement? (Paragraph 6.128)

                             15.29              We provisionally propose that the rent sanction should also apply wherever a written agreement is provided but which omits any of the issues prescribed in Part B and Part C of the agreement, but that this should not apply where all such terms are included in a written agreement but one or more term is found to be invalid. (Paragraph 6.133)

                             15.30              We also provisionally propose that the written agreement should set out all the terms in full. A mere reference to the statutory provisions containing the relevant terms would not be enough to meet the writing requirement. (Paragraph 6.134)

                             15.31              If there is to be a criminal sanction, we invite consultees’ views as to whether it should be limited to cases of complete failure to provide a written agreement, rather than including cases where an agreement is provided but is incomplete. (Paragraph 6.135)

                             15.32              We provisionally propose that provision of information about the landlord should be treated as one of the matters on which written information must be provided, so any failure will attract the rent sanction we provisionally propose. (Paragraph 6.137)

                             15.33              We invite views as to whether the threat of potential criminal proceedings in such circumstances might constitute a useful spur to compliance. (Paragraph 6.139)

Variation of agreements

                             15.34              We provisionally propose that the list of matters prescribed for the default terms in Part C of the agreement should make provision for a clause allowing rent to be reviewable and revisable on an annual basis. (Paragraph 6.148)

                             15.35              We invite views as to a whether non-rent variation clause should be included in the list of items prescribed for the default terms in Part C of the agreement or left wholly to negotiation between the parties. (Paragraph 6.155)

                             15.36              We provisionally propose that, to be enforceable, any variation to the agreement must be notified in writing by the landlord to the occupier. (Paragraph 6.157)

                             15.37              We further provisionally propose that, following notification of a variation, the occupier should be entitled to require the landlord to supply a revised copy of the agreement. (Paragraph 6.158)

Ensuring respect for the contract

                             15.38              We seek the view of consultees on the following questions:

                                                        (1)      Should the landlord’s desire to evict an occupier who has sought to assert his contractual or statutory rights be the basis of a defence to possession proceedings, as is common in the Commonwealth and the USA?

                                                        (2)      Should a former occupier be able to use the landlord’s “improper motive” as the basis of a claim for damages after the eviction?

                                                        (3)      Where the landlord’s improper motive could be shown, should the court have power to order reinstatement of the occupier in the premises, notwithstanding the complications that might arise, particularly where premises had been re-let? (Paragraph 6.173)

                             15.39              In the alternative, we invite views on whether consultees believe that a better approach would be to rely on promoting good practice. (Paragraph 6.175)

Alternative dispute resolution

                             15.40              We invite views on whether encouragement should be given to the appropriate use of alternative dispute resolution in the resolution of disputes about housing matters. (Paragraph 6.184)

                             15.41              If the answer is yes, we also invite views on whether alternative dispute resolution processes should be included in the issues to be covered by the default terms and in relation to what types of dispute alternative dispute resolution might be particularly relevant. (Paragraph 6.185)

Part VII: The type I agreement: the security regime

The type I agreement

                             15.42              We provisionally propose that there should be created a type I agreement, providing long-term security of tenure. It should be defined adopting the landlord-neutral approach. (Paragraph 7.10)

                             15.43              We invites views on the question whether type I agreements should only be able to be created on a periodic basis. (Paragraph 7.16)

Court orders for possession: discretionary or mandatory?

                             15.44              We provisionally propose that, subject to the discussion on serious rent arrears and mortgage default, below, there should be no circumstances in which a court should be mandatorily required to make an order for possession in relation to a type I agreement. (Paragraph 7.26)

                             15.45              We provisionally propose that it is not appropriate that the court should be required to order possession without the exercise of its discretion, even where there are serious arrears of rent,where a home is provided on the basis of atype Iagreement. (Paragraph 7.44)

                             15.46              We invite views as to whether lenders have found themselves able to take eviction proceedings themselves on ground 2. (Paragraph 7.49)

                             15.47              We also invite views on whether lenders are in practice insisting on registered social landlords using ground 2, whether any money has been lent on that basis and whether it would cause problems if money was in future not lent to registered social landlords because of abolition of a basis for possession akin to ground 2. (Paragraph 7.50)

                             15.48              We provisionally propose that it is not appropriate that the court should be required to order possession without the exercise of its discretion where the landlord has defaulted on a mortgage. (Paragraph 7.52)

                             15.49              We further suggest that consideration should be given to a scheme to enable lenders to enforce their security on the insolvency of a registered social landlord. (Paragraph 7.53)

Security of tenure: the terms in the agreement

                             15.50              We provisionally propose that breach of the agreement by the occupier should be the first of the circumstances in which the landlord may take possession proceedings. (Paragraph 7.66)

                             15.51              We seek information on whether this ground is used in practice, whether it is seen as useful and what drawbacks are associated with it.(Paragraph 7.72)

                             15.52              We provisionally propose that there should be a provision in the agreement stating that proceedings may be taken against an occupier whose violence has driven his or her spouse or partner from the home. (Paragraph 7.74)

                             15.53              We provisionally propose that the agreement should contain a provision which enables landlords to seek repossession where they can prove that the agreement was obtained on the basis of false information. (Paragraph 7.76)

                             15.54              We provisionally propose that the agreement should contain a provision which would enable landlords to seek possession on estate management grounds where this would be reasonable. (Paragraph 7.81)

                             15.55              We seek views on whether the provision should be a broadly drafted term, modelled on the suitable alternative accommodation ground; or whether it should be more precisely defined, as in the secure tenancy scheme. (Paragraph 7.82)

                             15.56              We provisionally propose that the agreement should contain a statement about the powers of the court and the steps the occupier should take when threatened with possession proceedings. (Paragraph 7.86)

The “ghost” grounds of possession

                             15.57              We provisionally propose that Part C of the agreement (the default terms)should contain a term prohibiting overcrowding, breach of which would be a basis for the landlord taking proceedings for possession in the normal way. (Paragraph 7.91)

                             15.58              We provisionally propose that enforcement of housing orders and undertakings should be undertaken directly by the authorities that made the orders or accepted the undertakings, not by the landlord. (Paragraph 7.92)

                             15.59              If consultees are against this provisional proposal, we ask whether the possibility of action being brought against an occupier in any of these circumstances should be stated in the agreement. (Paragraph 7.93)

                             15.60              We invite views as to whether these are of enough significance in practice (particularly to the relevant enforcement agencies) to be worth bringing into the type I agreement scheme, along the lines suggested above. (Paragraph 7.95)

Part VIII: The II agreement: the security regime

The type II agreement

                             15.61              We provisionally propose that there should be created a type II agreement, modelled on the existing assured shorthold tenancy, which should be able to be created on both a periodic and fixed term basis. (Paragraph 8.8)

The court’s powers to order possession

                             15.62              We provisionally propose that, in relation to the type II agreement, there should be circumstances in which the court would be mandatorily required to order possession. (Paragraph 8.12)

                             15.63              We provisionally propose that, on the assumption that our recommendation for a notice-only basis for seeking possession is agreed (below paragraph 67), a landlord employing it should be able to use an accelerated procedure, not involving a hearing. (Paragraph 8.14)

                             15.64              We invite views on the question: should the six months’ moratorium on a court granting a possession order, currently a feature of the assured shorthold tenancy, be a feature of the type II agreement? (Paragraph 8.27)

                             15.1              We would particularly welcome evidence about the benefit tenants currently derive from the six months’ moratorium in the assured shorthold tenancy.

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Security of tenure: the terms in the agreement

                             15.66              We provisionally propose that the circumstances in which a landlord may seek an order for possession of premises subject to a type II agreement should be set out in the terms of the agreement. (Paragraph 8.31)

                             15.67              We provisionally propose that the periodic type II agreement should provide that the landlord may seek an order for possession from the court merely on the basis of having issued an appropriate notice to the occupier. (Paragraph 8.34)

                             15.68              If the six months’ moratorium on granting possession is not to be a feature of the type II agreement, we provisionally propose that the statutory minimum period of notice required for seeking possession on the notice-only basis should be three months, rather than the two months’ notice (generally) required in assured shorthold tenancies. (Paragraph 8.37)

                             15.69              We invite views on whether the period should be two or three months, if there is to be a six months’ moratorium in the type II agreement. (paragraph 8.38)

                             15.70              We provisionally propose that the type II agreement should contain a term which provides that, where the occupier has accrued two months arrears of rent at the date of the notice of intention to seek possession and at the date of the court hearing, the landlord is entitled to seek an order for possession which the court is required to make without the exercise of discretion. (Paragraph 8.41)

                             15.71              Subject to later consideration of ground 7, we provisionally propose that there should be no other circumstances set out in the type II agreement which should entitle the landlord to seek a mandatory order for possession. (Paragraph 8.46)

                             15.72              We provisionally propose that all the circumstances entitling the landlord to seek a discretionary order for possession, available in the type I agreement, should also be available to landlords in the periodic type II agreement. (Paragraph 8.49)

                             15.73              We provisionally propose that the terms of a fixed term type II agreement should provide that, during the contractual period, the landlord is entitled to bring proceedings for possession before the end of the fixed term if the circumstances we have classified as occupier default or social policy arise. Such an order for possession would only be made where the court thought it reasonable in the exercise of its discretion. (Paragraph 8.53)

                             15.74              For the avoidance of doubt, we provisionally propose that the procedures for seeking possession in these circumstances should be those provided for within the scheme we propose, and that the law and procedures relating to forfeiture of tenancies should not apply. (Paragraph 8.54)

                             15.75              We invite views on whether the landlord under a fixed term type II agreement should be entitled to seek a discretionary order for possession in the circumstances falling within the scope of estate management. (Paragraph 8.59)

Break clauses

                             15.76              We provisionally propose that terms analogous to break clauses in fixed term commercial leases should be able to be included in fixed term housing agreements. (Paragraph 8.62)

                             15.77              We provisionally propose that while a landlord who seeks to take advantage of a break clause must be required to obtain an order for possession from the court, occupiers should not be required to obtain a court order, so long as they have notified the landlord that they intend to take advantage of the break clause. (Paragraph 8.65)

                             15.78              We invite views on whether courts should be required to order possession where the landlord seeks an order on the basis of an unconditional or conditional break clause, or whether any order should only be made following the exercise of discretion by the court. (Paragraph 8.67)

Expiry of fixed term tenancies

                             15.79              We provisionally propose that, on the expiry of the period of a fixed term agreement, a periodic agreement should automatically come into being, unless the parties have agreed to enter a further fixed term agreement. (Paragraph 8.71)

                             15.80              We provisionally propose that where a periodic tenancy has been created by operation of law, the landlord should be under a duty to provide the occupier with a new version of the contract. (Paragraph 8.75)

                             15.81              We provisionally propose that if the landlord fails to provide a revised version of the agreement, the occupier shall have the right to require the landlord to provide one. (Paragraph 8.76)

                             15.82              We provisionally propose that the sanction of the loss of rent to the landlord should not apply until after the occupier has notified the landlord in writing that he or she requires a revised version of the agreement. The sanction would come into effect 14 days from the date of the service of the notice requesting the copy of the agreement on the landlord. (Paragraph 8.77)

                             15.83              We provisionally propose that the terms of the original fixed term agreement should themselves set out the effect of these proposals. (Paragraph 8.78)

Part IX: The scope of the scheme

The relationship with other statutory schemes

                             15.84              We provisionally propose that our proposed statutory regime should exclude business tenancies, including those tenancies where there is mixed residential and business use where the business use is significant. (Paragraph 9.11)

                             15.85              We provisionally propose that licensed premises be excluded from our scheme even when such premises include residential premises. (Paragraph 9.13)

                             15.86              We provisionally propose that our proposals should not affect property subject to the Agricultural Tenancies Act 1995 or the Agricultural Holdings Act 1986. (Paragraph 9.15)

                             15.87              We provisionally propose that agreements for renting homes that include agricultural or other land not subject to the Agricultural Holdings Act 1986 or the Agricultural Tenancies Act 1995 should come within the statutory scheme we propose. (Paragraph 9.17)

                             15.88              We provisionally propose that leases granted for a term certain exceeding 21 years should be excluded from our proposed statutory scheme. (Paragraph 9.20)

Should the lease-licence distinction be retained as a test for determining the scope of the scheme?

                             15.89              We provisionally propose that the scope of our statutory scheme should be determined independently of the lease-licence distinction. (Paragraph 9.42)

                             15.90              We provisionally propose excluding from the ambit of our proposed statutory scheme all residential provision which has to be registered under the Care Standards Act 2000. (Paragraph 9.47)

                             15.91              We provisionally propose excluding hospitals defined under National Health Service Act 1977. (Paragraph 9.49)

                             15.92              We provisionally propose excluding military barracks from our proposed scheme of statutory regulation. (Paragraph 9.51)

                             15.93              We provisionally propose that, where there are exceptional reasons for so doing, defined categories of agreement may be excluded from the scheme by the Secretary of State by incorporation in list of exclusions in a statutory instrument. (Paragraph 9.53)

                             15.94              We provisionally propose that our proposed statutory scheme should explicitly include contracts for renting to those under 18 years of age. (Paragraph 9.57)

Other definitional issues affecting the scope of the scheme

                             15.95              We provisionally propose that our scheme apply to contracts which contain a requirement for the payment of “rent”. (Paragraph 9.62)

                             15.96              We invite views on whether it is necessary to provide a definition of rent. (Paragraph 9.63)

                             15.97              We provisionally propose that there should be no lower limit on the amount of rent payable under the contract for it to be included in our proposed statutory scheme. (Paragraph 9.66)

                             15.98              We provisionally propose that there should be no upper limit on the amount of rent payable under the contract. (Paragraph 9.68)

                             15.99              We provisionally propose that agreements at no rent would fall outside our proposed scheme. (Paragraph 9.70)

                          15.100              We provisionally propose that the word “home” be used in preference to the word “dwelling”. (Paragraph 9.74)

                          15.101              We provisionally recommend that the scheme should cover any agreement that confers a right to occupy premises as a home. (Paragraph 9.78)

                          15.102              We provisionally propose that the scheme should not be limited to the occupier’s “only or principal” home. (Paragraph 9.82)

                          15.103              We provisionally propose that there should be no specific additional requirement that the home be separate from that of others (leaving aside the special case of a resident landlord). (Paragraph 9.89)

                          15.104              We provisionally propose that the definition of the agreements covered by our proposed scheme should not include specific reference to occupation by an individual. (Paragraph 9.91)

Statutorily excluded categories of agreement

                          15.105              We propose that holiday lets should be excluded both from our proposed statutory scheme and from the Protection from Eviction Act 1977. (Paragraph 9.95)

                          15.106              We provisionally propose that agreements granted as a temporary expedient to a person who entered the premises as a trespasser should be excluded both from our proposed statutory scheme and from the Protection from Eviction Act 1977. (Paragraph 9.97)

                          15.107              We provisionally propose that the residents of almshouses should not be excluded from our proposed statutory scheme. (Paragraph 9.100)

                          15.108              We provisionally propose that all projects providing an appropriate level of supported accommodation to vulnerable groups should be excluded our scheme and from the Protection from Eviction Act 1977. (Paragraph 9.103)

                          15.109              We further provisionally propose that the definition of “hostel” inthe Protection from Eviction Act 1977 should be modernised to reflect the current practice of providing supported provision with an increasing use of self contained accommodation. (Paragraph 9.104)

                          15.110              We invite views on whether the Secretary of State should have the power to maintain a list of projects which he or she considered met the criteria. The inclusion of a project on the list would be definitive of the status of the project as excluded as supported accommodation. (Paragraph 9.106)

                          15.111              If there is a moratorium, we provisionally propose that occupiers of resident landlords be excluded from our proposed scheme. (Paragraph 9.110)

                          15.112              If there is a moratorium, we provisionally propose that the current exclusion of occupiers who share accommodation with resident landlords from the Protection from Eviction Act 1977 should be maintained. (Paragraph 9.112)

                          15.113              If there is a moratorium, we would provisionally propose that those to whom a right of occupation has been granted by a fully mutual housing association should be excluded from our proposed scheme. (Paragraph 9.114)

                          15.114              If there is a moratorium, we provisionally propose that agreements by educational institutions to students should be excluded from the scope of our statutory scheme. (Paragraph 9.117)

                          15.115              For the avoidance of doubt we provisionally propose that students who rent from educational institutions or local authorities should be included within the provisions of the Protection from Eviction Act 1977. (Paragraph 9.119)

                          15.116              If there is a moratorium, we provisionally propose that accommodation provided on a temporary basis for homeless persons be excluded from the scope of our proposed scheme, but continue to be protected by the Protection from Eviction Act 1977. (Paragraph 9.121)

                          15.117              If there is a moratorium, we provisionally propose that the agreements for the temporary purposes currently excluded from the secure tenancy regime should be excluded from the scope of our proposed scheme but should be included within the Protection from Eviction Act 1977. (Paragraph 9.124)

                          15.118              If there is a moratorium, we provisionally propose that accommodation provided for asylum seekers should fall outside our proposed statutory scheme. (Paragraph 9.126)

                          15.119              We invite views on whether asylum seekers should no longer be excluded from the Protection from Eviction Act 1977. (Paragraph 9.128)

                          15.120              If there is a moratorium, we provisionally propose that service occupiers who are required to occupy the premises for the better performance of their duties be excluded from the scope of our proposed scheme. (Paragraph 9.130)

                          15.121              We provisionally propose that all service occupancies should be protected by the Protection from Eviction Act 1977. (Paragraph 9.132)

                          15.122              If there is no moratorium, we provisionally propose that anagreement should be excluded from our scheme and from the Protection from Eviction Act 1977 where the landlord shares accommodation with the occupier and occupies the property as his only or principal home; or a member of the landlord’s family shares accommodation with the occupier and occupies the premises as his only or principal home. (Paragraph 9.138)

                          15.123              If there is no moratorium, we further provisionally propose that all other agreements made by resident landlords should fall within the scope of our proposed scheme (as type II agreements). (Paragraph 9.139)

                          15.124              If there is no moratorium, we provisionally propose that the occupiers of fully mutual housing associations (housing co-operatives) should no longer be excluded from statutory regulation. (Paragraph 9.141)

                          15.125              If there is no moratorium, we provisionally propose that lettings by educational institutions or by local authorities to students should come within scope of the type II agreement. (Paragraph 9.145)

                          15.126              If there is no moratorium, we provisionally propose that accommodation provided on a temporary basis for those to whom duties are owed under Part VII of the Housing Act 1996 should be provided on the basis of a type II agreement. (Paragraph 9.151)

                          15.127              If there is no moratorium, we provisionally propose that lettings for the for the temporary purposes currently excluded from the secure tenancy regime should be made as type II agreements. (Paragraph 9.154)

                          15.128              If there is no moratorium, we invite views on whether accommodation provided for asylum seekers should be on the basis of type II agreements. (Paragraph 9.157)

                          15.129              If there is no moratorium, we provisionally propose that service occupancies should come within the scope of our scheme as type II agreements. (Paragraph 9.161)

Crown tenancies

                          15.130              We provisionally propose that Crown tenancies should no longer be excluded from statutory regulation. (Paragraph 9.166)

Part X: Terminating Agreements

Due process – the notice requirements

                          15.131              We provisionally propose that a landlord should be required to obtain a court order for possession against any occupier covered by our proposed scheme. (Paragraph 10.7)

                          15.132              We provisionally propose that landlords should be required to issue a notice warning occupiers of their intention to bring possession proceedings and that this should be a compulsory term in the contract. (Paragraph 10.10)

                          15.133              We provisionally propose that failure to serve the notice should constitute a defence to possession proceedings. However, there should be power for the courts to ignore non-compliance with the notice requirements where that would just and equitable. (Paragraph 10.11)

                          15.134              We provisionally propose that a landlord’s notice of intention to take proceedings on the basis of anti social behaviour should be able to be effective immediately. (Paragraph 10.14)

                          15.135              We invite views as to whether the notice period where the landlord intends to seek possession on the ground that the occupier has broken the agreement should be two weeks or four weeks. (Paragraph 10.16)

                          15.136              We invite views on whether the period of notice in circumstances other than breach of the agreement by the tenant or the notice-only basis for possession for type II agreements should be four weeks or two months. (Paragraph 10.18)

                          15.137              We provisionally propose that the periods of notice be defined by statute, and the effect of these rules be incorporated in Part B of the agreement, subject to enhancements in Part C. (Paragraph 10.24)

                          15.138              We further provisionally propose that notices should be able to begin and end on any day, and not be required to end on the last day of a period of a agreement. (Paragraph 10.25)

                          15.139              We provisionally propose that notices should be able to be served on the occupier at the property rented as the address for service given in part A of the contract. (Paragraph 10.26)

                          15.140              We provisionally propose that a limit should be put on the length of time a landlord can allow to elapse after the date given in the notice before issuing proceedings, and suggest that the period should be three months. (Paragraph 10.29)

                          15.141              We provisionally propose that a landlord’s notice should include the date on which the notice becomes ineffective. (Paragraph 10.30)

                          15.142              We invites views on whether the date to be given in landlords’ notices should be the date before which proceedings cannot be started – as is currently the more common case; or the date before which a possession order cannot take effect. (Paragraph 10.37)

                          15.143              We provisionally propose that notices should contain prescribed information, in plain English, and that the details should be contained in a term in the agreement. A sample notice should appear in a Schedule to the model agreement. (Paragraph 10.44)

                          15.144              We invite views whether a copy of the original agreement should be attached to any landlord’s notice. (Paragraph 10.45)

                          15.145              We invite views as to the contents of notices relating to both type I and type II agreements and whether a single form of notice for both agreement types can be developed. (Paragraph 10.46)

                          15.146              We provisionally propose that any failure to comply with notice requirements should not form a defence to proceedings, so that the whole process has to be started again, but rather could become the basis for an adjournment and/or costs application as appropriate. (Paragraph 10.47)

Termination by the occupier

                          15.147              We provisionally propose that the length of notice to be given by a occupier should continue to be four weeks and that the default terms should contain a provision relating to the occupier’s notice to quit. (Paragraph 10.51)

                          15.148              We provisionally propose that the length of notice to be given by an occupier to exercise a break clause should be four weeks’ and that the default terms should contain a provision relating to the occupier’s notice. (Paragraph 10.55)

                          15.149              We further provisionally propose that in the case of both a occupier’s notice to quit and a occupier’s notice to exercise a break clause, the landlord should have the right to take proceedings against the occupier if he or she has not left the premises by the date stated in the notice. Pending the final departure of the occupier, the agreement should be deemed to continue, subject to the occupier’s liability in damages for any losses suffered by the landlord. (Paragraph 10.57)

                          15.150              We provisionally propose that the compulsory terms of the contract should refer to the occupier’s right to treat the agreement as terminated immediately if the landlord has committed a repudiatory breach of contract. (Paragraph 10.61)

                          15.151              We provisionally propose that, in relation to the termination of fixed term agreements covered by our regime, the requirement for a deed for express surrender should be replaced by a requirement for writing. (Paragraph 10.64)

Abandonment

                          15.152              We provisionally propose that a procedure modelled on sections 17-19 Housing (Scotland) Act 2001 should be created, allowing a clear simple procedure for repossession in abandonment cases with a procedure for the occupier to apply to court to put right any mistakes. (Paragraph 10.69)

Part XI: Using the new agreements

Social landlords

                          15.153              We provisionally reject two of the four options available: option 2, to require local authorities generally to use the type I agreement, subject to specified exceptions, but to give other social landlords a free choice between using type I or type II agreements; and option 4, to require all social landlords, including purely private charities, generally to use type I agreements, subject to the specified exceptions. (Paragraph 11.13)

                          15.154              We invite views as to which of the following two options would be preferred:

                                                        (1)      allowing all social landlords, including local authorities, free choice between using the type I or the type II agreement (option (1)); or

                                                        (2)      imposing a statutory requirement on all local authorities and registered social landlords to use type I agreements, subject to a range of exceptions (option (3)). (Paragraph 11.14)

Exceptions

                          15.155              We provisionally propose that a general probationary agreement be available to local authorities and registered social landlords. (Paragraph 11.26)

                          15.156              If local authorities and registered social landlords are required to use type I agreements, subject to specific exceptions allowing them to use type II agreements (option (3)), or if there is general freedom of choice (option 1), but the six months’ moratorium is retained, we provisionally propose that

                                                        (1)      local authorities and registered social landlords should be able to let to a new occupier on a probationary agreement for up to 12 months (in the first instance); and

                                                        (2)      if there is no six months’ moratorium, the type II agreement would be suitable as the general probationary agreement, but that if there is a moratorium, local authorities and registered landlords should be able to use a variant of the type II agreement that did not include the moratorium, for the purpose of creating a probationary agreement. (Paragraph 11.28)

                          15.157              We provisionally propose that, after 12 months on a probationary type II agreement, a landlord could extend the probationary period for a further 6 months, but only if it is of the opinion that the behaviour of the tenant was such as to warrant such an extension. (Paragraph 11.35)

                          15.158              We invite views on the periods suggested here. Would an 18 month period for the initial probationary agreement be more appropriate, with a six month extended period? (Paragraph 11.36)

                          15.159              We invite views on whether the Housing Corporation should be given powers to approve probationary agreement schemes for use by registered social landlords. (Paragraph 11.39)

                          15.160              We provisionally propose that challenges to a landlord’s decisions under a probationary agreement scheme should be to the county court, not the Administrative Court. (Paragraph 11.43)

                          15.161              We further recommend that the powers of the county court should be framed sufficiently flexibly to allow it to develop whatever level of intensity of review by the landlord is required under human rights law. (Paragraph 11.44)

                          15.162              If there is no six months’ moratorium, we provisionally proposed that social landlords should be permitted to let on type II agreements:

                                                        (1)      to service occupiers,

                                                        (2)      to asylum seekers,

                                                        (3)      to homeless persons to whom the local authority owes duties under Part VII to the Housing Act 1996, and

                                                        (4)      in circumstances where the social landlord is letting on a temporary basis as currently set out in paragraphs 3 and 5 to 7 of Schedule 1 of the Housing Act 1985. (Paragraph 11.47)

                          15.163              We invite views on the other circumstances in which social landlords should be entitled to use type II agreements. (Paragraph 11.53)

                          15.164              We provisionally proposeWe provisionally propose that in the absence of a clear written agreement specifying the agreement type social landlords will be presumed to let on type I agreements. (Paragraph 11.56)

Private landlords

                          15.165              We provisionally proposeWe provisionally propose that any restrictions on which types of agreement can be used by private landlords should, at least for the time being, be contained in statutory provisions. (Paragraph 11.61)

                          15.166              We provisionally proposeWe provisionally propose that private landlords should able to grant type I agreements if they choose, but should not be required to do so. (Paragraph 11.64)

                          15.167              We provisionally proposeWe provisionally propose that agreements granted by private landlords should be type II unless the landlord states that it is to be type I.. (Paragraph 11.67)

Part XII: The powers of the courts

The exercise of discretion

                          15.168              We provisionally propose that the court should have an extended discretion, when dealing with applications for possession orders on a discretionary basis. This discretion would allow the court to adjourn proceedings, to stay, suspend or postpone orders on appropriate conditions, and to discharge possession orders when conditions are complied with. (Paragraph 12.10)

                          15.169              We provisionally propose that our new regime should include a framework to structure the exercise of discretion in cases based on reasonableness grounds. It should explicitly require the court to consider whether the eviction of the household concerned is proportional to the benefit to be obtained by not doing so. It should explicitly refer to the effects of granting or not granting an order, not only on the occupier and the occupier’s household but also on the landlord, the landlord’s interests, the landlord’s other occupiers, and the general public. Where possession of a fixed term tenancy is for decision, the length of the term remaining should also be considered. (Paragraph 12.27)

                          15.170              We invite views on other factors that might be included in the structured discretion. (Paragraph 12.28)

                          15.171              We invite views on whether the new structured discretion should apply to the full range of the court’s extended discretion on suspension, adjournment and postponement of both orders and warrants or whether enforcement issues should be left to the Lord Chancellor’s Department enforcement review process and the developing case-law. (Paragraph 12.32)

Rent arrears and suspended possession orders

                          15.172              We invite consultees to comment on the following options and any practical problems they might cause.

                                                        (1)      Should new housing legislation make the attempt, along the lines suggested by the Woolf Report, to limit the use of suspended possession orders in rent arrears cases?

                                                        (2)      Should the first stage be limited to a court issuing a warning to the occupier instead of making a final judgement on the arrears owed, with liability for the arrears being left to be determined to the stage where the landlord wants an absolute possession order?

                                                        (3)      Should suspended possession orders for rent arrears be abolished, forcing parties and the court to focus on eviction? (paragraph 12.41)

Enforcement

                          15.173              We invite views on the following questions:

                                                        (1)      Does the current position, that agreements terminate on breach of a suspended possession order, lead to significant problems in practice? Should the present position be replicated in reform of the law? Our provisional view is that it should not.

                                                        (2)      Would there be more benefit than harm in a rule that an agreement is ended not by the coming into force of the possession order but by its execution?

                                                        (3)      Would it instead be preferable to tackle any problems by reducing reliance on suspended possession orders in arrears cases as recommended in the Woolf Report? (Paragraph 12.52)

                          15.174              We invite views as to the practicality of requiring a hearing before the issue of a possession warrant after a suspended possession order has been made on rent or other discretionary ground cases. (Paragraph 12.57)

                          15.175              Alternatively we invite views whether any related problems would be best tackled by rules on court forms and/or by adopting the Woolf Report recommendations on rent arrears cases. (Paragraph 12.58)

Part XIII: Anti social behaviour

Which landlords?

                          15.176              We provisionally propose that, so far as possible, local authorities and registered social landlords should have the same powers and duties, as landlords, in respect of anti social behaviour. (Paragraph 13.18)

                          15.177              We invite views on whether unregistered housing associations should have similar powers and duties. (Paragraph 13.19)

A general duty to deal with antisocial behaviour

                          15.178              We provisionally propose that a general duty should be imposed on local authorities to take action against anti social behaviour. (Paragraph 13.30)

                          15.179              We further provisionally propose that a similarly worded duty be placed on registered social landlords, expressed as not to take effect in tort, which the Housing Corporation would be obliged to take into account in the performance of its regulatory functions. (Paragraph 13.31)

                          15.180              We invite views on whether, as an alternative to the proposal in the preceding paragraph, the Secretary of State should be empowered to extend the duty on local authorities to registered social landlords, if he considers that they have come to be recognised as exercising functions of a public nature. (Paragraph 13.32)

                          15.181              We invite views as to whether there should be a requirement on social landlords to include in their agreements a term specifying that the landlord should take all reasonable steps to ensure that the occupier is able to occupy the home free of anti social behaviour by the occupants of other premises owned by the landlord. (Paragraph 13.34)

                          15.182              If consultees support the inclusion of a specific term in the agreement, we invite views on whether or not it should be expressed to be for the benefit of other members of the occupier’s household for the purposes of the Contracts (Rights of Third Parties) Act 1999 (subject to a further term not requiring their consent to any agreed rescission or variation). (Paragraph 13.36)

Dealing with serious anti social behaviour

                          15.183              We provisionally propose that it would be advantageous if there were a single concept of housing-related anti social behaviour which would apply to new procedures for dealing with the matter. (Paragraph 13.39)

                          15.184              We provisionally propose that serious housing-related anti social behaviour should be defined as “behaviour where the occupier or a person residing in or visiting the home has acted in a manner that caused or was likely to cause serious harm, harassment, alarm or distress to others where the behaviour is either linked to the occupation of the home and/or occurs in the locality of the home.” (Paragraph 13.40)

                          15.185              We provisionally propose that a new summary eviction procedure be created. It would be available to a local authority or registered social landlord believes that an occupier under a type II (probationary) agreement has been responsible for serious housing-related anti social behaviour. The occupier could subsequently challenge the reasonableness of the decision (option A) or the lawfulness of the decision (option B). (Paragraph 13.55)

                          15.186              The features of Option A would be as follows.

                                                        (1)      The landlord would apply to the county court for a formal order for possession, on the ground that the occupier had breached the term of the agreement prohibiting anti social behaviour. The procedure for obtaining the order would be a paper only one, the court being required only to satisfy itself that any relevant notices had been complied with. There would be no procedure for adjournment.

                                                        (2)      After eviction, the occupier would be entitled to apply to the court to consider the eviction. The court would determine whether the occupier had indeed breached the term prohibiting anti social behaviour, and, if he or she had, would go on to consider whether it was reasonable in all the circumstances to have evicted the occupier.

                                                        (3)      If the court found that the occupier had not breached the term, or that he or she had done so but that nevertheless the eviction was unreasonable, then the occupier would be entitled to

                                                                                 (a)     be re-housed by the landlord in similar accommodation in the same general area, and /or

                                                                                 (b)     compensatory damages.

                          15.187              The features of Option B would as follows.

                                                        (1)      There would be a statutory internal review procedure, similar to that for introductory tenancies, requiring notice to be given to the occupier of the decision, with reasons, followed by, at the request of the occupier, a further review by a senior officer which included a right to an oral hearing, representation and examination of witnesses.

                                                        (2)      On completion of the review process, and on the assumption that the occupier had failed to reverse the landlord’s decision, the landlord would obtain a summary possession order from the court.

                                                        (3)      The occupier would be entitled after eviction to apply to the county court to judicially review the decision to evict, the degree of judicial review being such as was necessary to make the procedure as a whole complaint with Article 6.

                                                        (4)      The reviewing county court would have the power to quash the order, substitute another order and/or make a declaration in relation to the case, and, at its discretion, order re-housing and/or damages as in option A.

                          15.188              We invite views on whether option A or option B is to be preferred. (Paragraph 13.56)

                          15.189              We invite views on whether local authorities and registered social landlords should be required to produce to the court a document setting out either what alternative steps have been taken to deal with the anti social behaviour, or, if none have been, why it was appropriate in the particular case to proceed without taking such steps. (Paragraph 13.59)

                          15.190              We also invite views as to whether failure by a landlord to provide the document or failure to do so adequately should be a matter that the court is entitled to take into account in coming to its decision, and could in addition be penalised in costs. (Paragraph 13.60)

                          15.191              We provisionally propose that the existing power of arrest in Housing Act 1996, section 153 should be replaced with a power for the court to add a power of arrest to any injunction for a social landlord to prevent a breach of a nuisance term which amounted to serious housing related anti social behaviour. (Paragraph 13.65)

                          15.192              We invite views on whether the power of arrest should be available in respect of

                                                        (1)      only behaviour involving violence or the threat of violence;

                                                        (2)      behaviour involving violence or the threat of violence, or which would result in serious harm to another; or

                                                        (3)      all breachesamounting to serious housing related anti social behaviour.(Paragraph 13.67)

                          15.193              We provisionally propose that where there is a breach of the compulsory anti social behaviour term the judge would be required to exercise his or her discretion to order possession unless certain circumstances obtain. Those circumstances would be very limited, for instance that the breach was trivial or that circumstances had changed such that it was highly unlikely that the behaviour would be repeated (for instance where the person who was responsible for it had left the household). (Paragraph 13.71)

                          15.194              We provisionally propose that where the county court finds that an occupier has breached an injunction restraining breach of the term of the agreement prohibiting anti social behaviour, the court should have the power, on the application of the local authority or registered social landlord, to order that the occupier be

                                                        (1)      demoted to a type II (probationary) agreement, to which the summary eviction procedure could then apply;

                                                        (2)      relocated elsewhere; and either demoted as in (1) above or offered supported housing; or

                                                        (3)      immediately evicted, if it is reasonable to do so. (Paragraph 13.76)

                          15.195              We provisionally propose that, where an occupier is demoted under one of the orders referred to in paragraph 194(1) or (2) above, the occupier would be promoted back to a type I agreement if:

                                                        (1)      the landlord chooses to do so;

                                                        (2)      the court so orders, on the application of the occupier after a certain time has elapsed; or

                                                        (3)      a certain period of time elapses. (Paragraph 13.79)

                          15.196              We invite views on the appropriate periods in paragraphs (2) and (3) above, but provisionally suggest six months for the former and two years for the latter. (Paragraph 13.80)

                          15.197              We provisionally propose that, where an occupier is relocated under the order referred to in paragraph 194 (2), the alternative accommodation should be suitable as defined in sections 206 and 210 of the Housing Act 1996, that is the landlord must have regard to the law governing unfitness, overcrowding and houses in multiple occupation, and the accommodation should also be affordable by the occupier and not put the occupier at risk of physical violence or racial harassment. The landlord should not be restricted as to its location. (Paragraph 13.83)

                          15.198              We provisionally propose that where the anti social behaviour orders can be certified as including a finding that the conduct of the occupier included behaviour within our concept of serious housing-related anti social behaviour (paragraph 183 above) then a local authority or registered social landlord would be able to choose to take breach proceedings in the county court, which would be able make an order to transfer, demote or (subject to reasonableness) evict the occupier, once breach is established. The court would then be empowered to commit the occupier to the magistrates’ court or the Crown Court for sentence for breach of the order. (Paragraph 13.88)

                          15.199              As an alternative to the provisional proposal above, we provisionally propose that the county court should be given jurisdiction to make housing related anti social behaviour orders. (Paragraph 13.90)

Part XIV: Mapping existing agreements onto the new regime

Secure tenancies and fully assured tenancies let by registered social landlords

                          15.200              We would be grateful for information particularly from registered social landlords about the proportion of fully assured tenancies to which ground 8 in reality applies, because its use is not pre-empted by either an agreement or a policy not to use it. (Paragraph 14.5)

                          15.201              We provisionally propose that, if the option to require local authorities and registered social landlords generally to use type I agreements is adopted, then existing local authority secure tenancies and registered social landlord fully assured tenancies should be converted into type I agreements. (Paragraph 14.9)

                          15.202              We provisionally propose that, if the option to allow local authorities and registered social landlords a free choice between type I and type II agreements is adopted,

                                                        (1)      existing local authority tenancies should become type I agreements; and

                                                        (2)      registered social landlords should be required to choose whether to give their occupiers, as a minimum, an enhanced type II agreementwhich does not contain provision for the landlord to gain possession on a notice-only basis, or a type I agreement. (Paragraph 14.14)

Other local authority and registered social landlord tenants

                          15.203              We provisionally propose that tenancies and licences granted by local authorities and registered social landlords which are not presently covered by one of the statutory schemes (excluding the Protection from Eviction Act 1977) should be converted into type II tenancies, or remain outside the scheme, according to their treatment in Part IX above. (Paragraph 14.16)

Private fully assured tenancies

                          15.204              We provisionally propose that fully assured tenancies, other than those granted by registered social landlords, should convert into enhanced type II agreements, which do not contain provision for the landlord to gain possession on the notice-only ground. (Paragraph 14.18)

Assured shorthold tenancies

                          15.205              We provisionally propose that assured shorthold tenancies should convert into type II agreements, the specific terms of the old tenancy becoming terms of the new agreement. (Paragraph 14.21)

Safeguardingthe terms of the old tenancy

                          15.206              We ask for views on whether there should be an addition to the general requirement for writing in relation to converted tenancies, such that the written agreement should have appended to it the written agreement constituting the old tenancy, if there was one. (Paragraph 14.23)

                          15.207              In the alternative, we ask for view onwhether the obligation should be for the landlord to provide the core and compulsory terms under the new scheme, together with a copy of the old agreement, with a statutory provision that the terms of the old agreement should apply to all matters not covered by the core and compulsory terms. (Paragraph 14.24)

                          15.208              In either case, should the sanctions for failure by the landlord to provide a copy to the tenant apply in relation to the old agreement? (Paragraph 14.25)

Rent Act protected tenancies

                          15.209              We ask for information as to the continued existence of protected shorthold tenancies. (Paragraph 14.36)

                          15.210              We provisionally propose that, subject to the preservation of the fair rent system, it would be desirable to convert Rent Act protected tenancies into type I agreements. (Paragraph 14.43)

The transition to the new scheme

                          15.211              We provisionally propose that the scheme be introduced as a single exercise, rather than through a staged programme of change. (Paragraph 14.48)

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