Key points from the Law Commission report on a single form of tenure
June 2002
The Law Commission has recently published a consultation paper on a single form of tenure - "Renting Homes - 1: Status & Security". Its aim is to unite all forms of tenancy. The report is a consultation paper. This paper outlines some key issues from the consultation paper, but not all issues are included below and we would suggest if you wish to consider these issues in further depth, read the full report (extending to some 280 pages - whilst the summary is 47 pages!).
1 It is intended that the single tenancy proposals will apply to all publicly funded housing and to private tenancies (with some exceptions).
2 The report makes it clear that it is intending that the proposals will apply to fully mutual housing co-ops, but it only considers fully mutual housing co-op status in relation to legal jurisdiction in rent arrears cases.
3 It is suggesting that all tenancies should become contractual tenancies - ie. dependent on what is in the tenancy agreement rather than on statute.
4 The report also suggests that the new tenancy will apply to all existing tenancies.
5 The report talks about a "consumer approach" throughout, and that the tenancy agreement should comply with consumer law.
6 The report proposes two tenancy forms - type I - a long (permanent) tenancy and type II - a short tenancy.
7 Part of the consultation is on whether social landlords (ie. those that have received public grants/loans to build or refurbish housing) should be required to use type 1 tenancies, with some exceptions.
8 The report is consulting on whether landlords should be required to provide tenants with a summary of the tenancy agreement.
9 It is proposed that there should be three parts of the tenancy agreement:
- core terms describing the essence of the agreement.
- compulsory terms on circumstances in which the landlord could apply for possession and terms implied by law, such at the landlord's covenant to repair and
- default/negotiable terms - where the law would draft a series of default terms which would apply unless different terms had been negotiated. Terms in this section would have to comply with consumer law (and would have to comply with Housing Corporation or other regulations, dependent on the type of landlord) and if they didn't the default terms would apply in their place.
10 There is an indication that a list of matters to be covered by the negotiable terms will be drawn up by "industry representatives".
11 The report proposes using the tenancy agreement to "modernize the eviction process". It suggests changing the Notice Seeking Possession or Notice to Quit to a notice of intention to take proceedings (ie. so that the tenant remains a legal tenant, rather than a "tolerated trespasser" at the end of the notice period).
12 It proposes that legal proceedings on the basis of anti-social behaviour could start immediately; it is consulting on whether the notice period for other breaches of tenancy (including non-payment of rent) should be two weeks or the current four weeks.
13 It is proposing that the Notice Seeking Possession should expire after 3 months if further action is not taken.
14 It is consulting on whether Suspended Possession Orders should be scraped and replaced with a system whereby once a case is entered into court, the court would carry out an administrative process instructing a tenant to comply with the terms of the tenancy agreement and if the tenant continued not to comply, then the case would be heard before a judge who would either issue a further warning, grant possession or dismiss the application.
15 It proposes that there should only be discretionary grounds of possession (ie. that rely on the discretion of the courts - removing mandatory grounds) for Type I tenancies.
16 It also refers to "structured discretion", which is intended to clarify how judges apply discretion, although there is very little detail about what this would mean in practice.
17 It suggests some mandatory grounds for possession under Type II tenancies (including for housing co-ops - referring to short-life arrangements).
18 There is also a proposal to introduce a process for recovery of abandoned premises akin to Scottish Law, although this is not explained in the consultation paper.
19 It is consulting on whether tenants should be able to take legal action if the landlord failed to take action on Anti-Social Behaviour.
20 There is also a proposal that there is a clause in the tenancy agreement about Alternative Dispute Resolution.
21 The report does not consider the Right to Buy or the Right to Manage, saying that these are matters for Government to determine on - ie. saying that those who currently have these rights (ie. local authority tenants) will continue to do so (through statute, rather than through the tenancy agreement), and those that don't (ie. RSL tenants) won't!
See also:
- CCH's response to the consultation document (June 2002)
- Report on CCH meeting with the Law Commission (Oct. 2002)
