Why Councils advise tenants to remain in property until eviction

by David Asker

10:53 AM, 24th November 2014
About 4 years ago

Why Councils advise tenants to remain in property until eviction

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Why Councils advise tenants to remain in property until eviction

In the last few years I have had several meetings with various Councils across the UK regarding their stance on tenants that are due to be evicted.

In almost all circumstances, the Council’s advice is that despite the granting of an order for possession and a possession date coming and going the tenant should remain in the property until they a physically evicted by a bailiff.

This advice seems to be based on directions given by Jan Luba QC in his guide to Housing Allocation and homelessness.

He states:

“Some Acts of Parliament expressly provide that individuals who are otherwise without rights may remain in possession. The classic example is the Rent Act 1977. Statutory tenants, whose contractual tenancies have ended, enjoy a personal right under the Rent Act 1977 not to be evicted without a court order and thus fall within this category. The code specifically refer to Rent Act statutory tenants because their personal right to remain is created by statute. A statutory tenant remains under the protection of the Rent Act 1977 and the Protection from Eviction Act 1977 not just until a possession order has been obtained against him or her, but until the point of actual eviction by court bailiffs.

Other Acts of Parliament provide that tenancies cannot be ended without landlords obtaining possession orders. This is the case for introductory, demoted, secure and assured tenants. Even when former tenants remain in occupation as trespassers, they are not “homeless” because a different form of enactment, the procedural rules of court, restricts them from being ousted other than by a bailiffs warrant. They do not lose the benefit of that enactment until the bailiffs actually turn them out”.

Happy to hear any thoughts on whether the above remains or if any other case law has emerged since.

David
The Sheriffs Officeevicted



Comments

13:16 PM, 24th November 2014
About 4 years ago

I see this all the time, most if not all local councils will tell a tenant to stay until the bailiffs come.

this is mainly a legal situation as, for a client to be accepted as homeless they need to show there is no property in the UK or abroad that they are legally allowed to occupy.. a tenant is legally allowed to occupy a property right up until bailiffs arrive

it also cuts down on time restrictions for the council, as they do not have to act on a tenant being homeless until that tenant is 28 days threatended with homelessness, as S21 or possession order is not a threat to make them homeless, it is a stage in the process to that end.

i can see this issue from the landlords point of view as you have a tenant in a property longer than you wanted.
However the councils are so overwhelmed they are forced to read the law to their advantage

Monty Bodkin

14:04 PM, 24th November 2014
About 4 years ago

Julie,

as S21 or possession order is not a threat to make them homeless

See the following link from the Councils own code of guidance. Councils choose to ignore it for short term solutions but in the longer term it is self defeating.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/7841/152056.pdf

Each case must be decided on its facts, so housing authorities should not adopt a
general policy of accepting – or refusing to accept – applicants as homeless or
threatened with homelessness when they are threatened with eviction but a court
has not yet made an order for possession or issued a warrant of execution. In any
case where a housing authority decides that it would be reasonable for an applicant to
continue to occupy their accommodation after a valid notice has expired – and
therefore decides that he or she is not yet homeless or threatened with homelessness –
that decision will need to be based on sound reasons which should be made clear to
the applicant in writing (see Chapter 6 for guidance on housing authorities’ duties to
inform applicants of their decisions). The Secretary of State considers that where a person applies for accommodation or assistance in obtaining accommodation,
and:
(a) the person is an assured shorthold tenant who has received proper notice in
accordance with s.21 of the Housing Act 1988;
(b) the housing authority is satisfied that the landlord intends to seek possession;
and
(c) there would be no defence to an application for a possession order;
then it is unlikely to be reasonable for the applicant to continue to occupy the
accommodation beyond the date given in the s.21 notice

Robert Mellors

14:52 PM, 24th November 2014
About 4 years ago

Unfortunately, Jan Luba (via David's posting), Julie, and Monty, are all correct, even though they appear to be saying slightly different things!

Councils tell people to stay because they want the person to sort themselves out rather than come to the council for help. This is because councils are overwhelmed with homeless applications and don't have enough properties for everyone, so they engage in "gatekeeping" (though of course they deny this practice). They will also try to put off the inevitable in the hope of being able to deal with it at a later date. The consequences to the household being evicted, or the consequences to the landlord, are of no concern to them.

The homelessness legislation itself (Part VII of the Housing Act 1996 as amended) refers to legal occupancy, BUT it also refers to what is "reasonable to continue to occupy", so it is possible for someone who is not facing eviction to be classed as legally homeless. There is good caselaw on this, but trying to get a council to accept this argument (without taking them to court) can be a very difficult struggle. Many councils are so desperate to not accept a homelessness duty, that they will reject applications simply because they know that the applicant won't have the persistence and determination to pursue a court appeal (especially with the reductions in the Legal Aid budget making it more difficult to access legal assistance.

A property may be legally available for occupation right up until the bailiffs arrive (as Jan Luba, and Julie says), but whether it is "reasonable" to continue to occupy up until that point is a different matter (as Monty says), but that judgment of what is "reasonable" is a subjective finding by the Housing/Homelessness Officer, and as such is not necessarily easy to challenge (though knowledge of relevant caselaw does help).

I would add at this point that I used to be a debts/benefits/homelessness caseworker for the Citizens Advice Bureau and have won many cases against local authorities, AND I have also been a homelessness officer (a very fair one I hope) and have managed a team of homelessness officers in a local authority, so I can speak with personal experience from both sides.

John MacAlevey

9:33 AM, 25th November 2014
About 4 years ago

`However the councils are so overwhelmed they are forced to read the law to their advantage` ..quite right Julie, this is the prime mover.

David Asker

10:00 AM, 25th November 2014
About 4 years ago

Thank you for your comments in this matter.

I suppose I was hoping somebody would say that the guidance was incorrect and provide relevant caselaw to support.

As you will no doubt understand we are inundated with Landlords questioning why a tenant can stay in their property even after a possession date has passed. Clearly the above is the answer and one that we will continue to advise.

I would add that I fully sympathise with the Council's position also. Not to mention those facing the eviction themselves and the Landlords own property issues.

All in all it is often a very unpleasant experience for all stakeholders but one that is necessary.

Romain Garcin

10:27 AM, 25th November 2014
About 4 years ago

Reply to the comment left by "David Carter" at "25/11/2014 - 10:00":

In relation to assured shorthold tenancies, the Housing Act 1988 itself clearly states that, in relation to s.8 and s.21 proceedings, the tenancies continues until a court order is obtained _and_ executed.
Based on that, the tenant indeed has a perfectly valid tenancy until the bailiffs, or yourself, come knocking on their door.

Considering that councils indeed try hard to delay having to re-house this is gold for them.

The Protection from Eviction Act 1977 indeed says that the (ex-landlord) cannot evict by himself, even if the tenancy has ended and the ex-tenant has no longer a right to occupy the property.
That's relevant e.g. when a tenant gives notice to quit but does not leave: The (ex-)landlord must still seek a court order and cannot just change the locks on the (ex-)tenant.

Robert Mellors

22:38 PM, 25th November 2014
About 4 years ago

Reply to the comment left by "David Carter" at "25/11/2014 - 10:00":

Hi David

Although the tenancy does not come to an end until a possession order is obtained and the date for leaving has expired, and the tenant cannot be physically evicted without the use of a bailiff (or HCEO), the tenant CAN be considered to be legally homeless prior to either of these events (in some circumstances).

In addition to this "homelessness" definition, it should be noted that the council's homelessness duties kick in when the person is "threatened with homelessness within 28 days", so if you have an eviction date set within 28 days, then the council may have a duty towards the person being evicted (though there are other conditions they also need to meet before the council have a full rehousing duty).

If the council can be persuaded to accept that the person is "legally homeless" prior to the possession (or eviction) then this could give the tenant a way of leaving the property before possession or eviction become necessary, (thus avoiding the need for legal proceedings altogether). Such a situation can occur when it would be "unreasonable" for a tenant to continue to occupy the property even though it is still lawfully available for occupation.

It may be unreasonable to continue to occupy a property for a whole wide variety of reasons, e.g. affordability, threats of violence, harassment by neighbours, not fit for human habitation, etc, etc, (I even had a case once that involved a tenant believing the house was haunted, and that was why they needed to move). The test of what is reasonable/unreasonable is subjective, but is also restrained by the legal fiction of the "average man on the Clapham omnibus".

You have hoped for some caselaw that may be helpful, so I would refer you to my favourites on this point, which are:

R v Hillingdon LBC ex p Tinn (1988) 20 HLR 305, QBD (This is a case about homelessness on the grounds that the accommodation was unaffordable).

R v Wandsworth LBC ex p Hawthorne (1994) 1 WLR 1442; (1995) 27 HLR 59, CA (This is another case about the affordability of accommodation as being the cause of their eviction).

R v Newham LBC ex p Khan and Hussain (2001) 33 HLR 269, QBD (This is a case about the council's duties when a person is threatened with homelessness within 28 days).

These situations will only apply to some cases, but where such circumstances do exist then there is at least some scope for getting the tenants rehoused without the trouble and expense and delay of going through the repossession route and eviction route, but don't expect the council to give in easily, you will have to have a very persuasive argument, but it can be done!

23:38 PM, 29th November 2014
About 4 years ago

The only way this will be settled is if a council is taken to court and the case is found against them.

Steve Gracey

17:51 PM, 4th December 2014
About 4 years ago

As Monty says section 8.32 in their guidance is quite clear ...... it is unlikely to be reasonable for the applicant to continue to occupy the
accommodation beyond the date given in the s.21 notice

My council knows what they are doing is wrong because they officially deny that they are doing it. All the local agents, landlords, homeless charities, even their own advice line insist that they do tell tenants to wait until bailiffs arrive. We asked for clarification of their advice at their Landlords forum and were promised an answer in April and we're still waiting.

I think we need a test case - Mark is this something for Property 118 maybe? Challenging the councils wrongful interference in a legal contract between landlord and tenant resulting in financial loss to landlord.

J Aruna

22:35 PM, 26th January 2015
About 4 years ago

Reply to the comment left by "Robert Mellors" at "24/11/2014 - 14:52":

are u LL now?

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