SINGLE TENANCY AGREEMENT

In March ‘01 the government asked the Law Commission to consider the law on housing tenure, ‘as the first phase of a broader reform of housing law’. Consultation papers were issued during ‘02. The Law Commission reported their conclusions in a report called ‘Renting Homes’ Nov’03. In May ‘06 a final report with proposed model contracts and a draft bill were published.

The intention is to create two new tenancy agreements to replace the many types that currently exist, (with two exceptions – Rent Act 1977 protected and statutory tenancies and agricultural occupancies protected by Rent (Agriculture) Act 1976). The apparent aims are ‘simplification, increased comprehensibility and flexibility.’

One agreement would ‘provide considerable security of tenure’ - intended principally for ‘social housing tenants’ (that is council and housing tenants). It would be modelled on the present secure tenancy. The second would be a standard contract modelled on the present assured shorthold tenancy where the duration of the occupation is determined by the contract; providing less security and principally for use within the private sector.

Both sectors would though be able to use both types of tenure to ‘increase flexibility in provision and management of housing’ and eliminate unnecessary differences between them – enabling the social and private rented sectors of the rented housing market to operate with greater freedom.’ Councils for example would use the less secure tenancy for probationary tenancies and in cases of a court order after an Anti Social Behaviour term has been breached.

In relation to the secure type, the Law Commission says ‘Technical legal distinctions between councils and housing associations are removed; giving opportunities for them both to enter new partnerships and other forms of agreement for the development and management of social housing and provide opportunities for social landlords to enter new sectors of the housing market.’

Private landlords, the report says would be able to ‘respond even more flexibly to different demands for rented accommodation at market rents’ and housing associations would be able to provide housing at market or sub market rents in areas where needed to provide accommodation for key workers.

Statute or contract? The proposal is that instead of our rights being enshrined in statute under Housing Act legislation, we would instead have an occupation agreement determined by contractual negotiations between us and our landlord. Statute would determine the structure of the contract but the terms will be shaped by principles of consumer law, which would be expected to be ‘fair’ within the meaning of the term in the Consumer Contracts Regulations UK 1999. Model contracts are prescribed by the law commission, which they suggest would be ‘readily and cheaply available’.

A contract would set out a statement of rights and obligations between landlord and occupier, which the law commission suggests would reduce the need to seek legal advice and facilitate the resolution of problems and disputes. Occupiers of rented homes, they say, would have clearer information about their rights and obligations and what they can expect from their landlords and circumstances in which contracts may be brought to an end.

Terms of the contract Each contract would include 4 sections:

1. Terms relating to key matters (including name and address of property and rent level).
2. Fundamental terms (rights and obligations of the landlords and ‘contract holders’).
3. Supplementary terms (practical matters like the requirements of the occupier to pay rent and look after fixtures and fittings)
4. Additional terms (issues where there is no statutory provision)

Modification and variation of the contract. The bill provides that the parties can agree to incorporate most fundamental provisions and all supplementary provisions, with modifications.

Modification could include: repairing obligations, prohibited behaviour (with new and specified details), landlords name and address, consultation on management matters.

Variations on the existing agreements include issues relation to terminating the contract i.e. grounds for possession (existing list of grounds for possession would be repealed and be replaced with – 1. a breach of the occupation contract and 2. estate management grounds); termination by the contract holder; termination by joint contract holders, (so that a notice to quit by one joint occupier would no longer mean that the contract is then ended by the other tenant) and abandonment (revision of current law to allow repossession without court proceedings).

Powers of the court. The Law Commission suggests that the courts currently exercise discretion (to evict) inconsistently – so this recommends that court’s discretion be statutorily structured – ie. The judge will in effect have a checklist of questions he or she must answer in coming to a decision whether or not to order possession.

Areas of contention / issues to consider

• Bringing housing tenants into a contract that is nearer to a secure tenancy would mean removal of ‘ground 8’ within their tenancy agreements. Effectively this currently means that should housing association landlords take a tenant to court for rent arrears of more than 8 weeks, it is a mandatory rather that a discretionary ground for eviction. (With local authority tenants the courts have discretion in this area – and in most cases will try to avoid homelessness and establish agreements between tenants and landlords for paying off arrears).

• Housing Associations and the Council for Mortgage Lenders have made loud opposition. If their opposition to this is conceded, it could mean worse conditions for existing secure council tenants.

• But, if the proposal were to genuinely give housing association tenants the same rights as council tenants currently enjoy, why not just give them secure tenancies? If this is what this is about, we must assume that council tenants will be losing out in some way.

• Would a contract covered by consumer legislation afford us as much security as Housing Act legislation – how much of our rights could be ‘negotiated’ away?

• The concept of law in this country has always been against changing peoples’ rights retrospectively – but this is what is suggested in this proposal.

We understand that government hasn’t moved any further on this proposal as yet as it was awaiting the publication of the John Hills Review of Social Housing – (please see our home page)

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