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xxxhousing status and Security of Tenure:

promoting simplification

Introduction

 

                    3.1               Part II provided an overview of how housing law has developed over the last century, and identified some lessons to be drawn from the approaches that have been adopted in the past. Here we set out in summary form

                                                        (1)      a statement of the statutory schemes for residential tenancies that exist in the current law;

                                                        (2)      a statement of the types of arrangement excluded from the three principal schemes;

                                                        (3)      the statutory provisions relating to security of tenure; and

                                                        (4)      a summary of ways in which the statutory schemes differ.

                    3.2               This providesthe essential backdrop against which our proposals for change can be set.  The impact of the Human Rights Act 1998 is discussed separately in Part V below.

                    3.3               As will be seen, the current position is extremely complex. The project’s principal objective is simplification. Indeed that objective is central to the statutory function of the Law Commission. As a preliminary issue we consider the challenge of simplification.

The challenge of simplification

                    3.4               In proposing simplification, it is important to recognise the reasons why the current law is so complex. Legal complexity is in large part the result of political decisions taken at different stages in the development of housing law about which categories of agreement should or should not fall within the scope of any regulatory scheme. Legislators have in the past thought it right to make a large number of special provisions for particular situations. We do not seek to challenge the validity of those past decisions. But we do need to make clear the consequences of those decisions. They have resulted in the complexity that now confronts us.

                    3.5               If there is to be a radical simplification of the current position, the differences in the present law must be significantly reduced. While accepting the government’s view that the broad balance of rights as between landlords and tenants should remain, there will need to be adjustments – on both the landlords’ and the tenants’ side – to the current position.

                    3.6               In addition, if there is to be real simplification of the present position, as opposed to the creation of yet more complexity by the addition of yet another layer of regulatory legislation onto the existing statutory schemes (and the exemptions and exclusions therefrom), we have to find a way of mapping existing tenancies onto the new framework so that from the date any new legislation is effective, all residential tenancies are covered by the new scheme.

                    3.7               To that extent, and reflecting a general comment we made in Part I,[1] in making our proposals, we have to make choices that will change the details of the existing package of rights and obligations. We think that our proposals do reflect the view that the broad balance between the rights of landlords and the rights of tenants should not be disturbed. To that extent, while our proposals necessarily involve policy choices, we are confident that they fall within the proper constraints of a law reform project.

                    3.8               Furthermore, we accept that there is a general disinclination to legislate with retrospective effect. We think, however, that objections rightly raised in the context of the criminal law have less force in the area of civil law. We are also very conscious that were retrospective legislation to substantially damage existing rights this might anyway attract challenge under the Human Rights Act 1998.

                    3.9               However, if we are to satisfy our statutory function to simplify and modernise the law, we think we should put forward proposals which seek to cover existing residential agreements as well as future ones. It will of course be for consultees in the first instance, and at a later stage government, to consider whether – in developing our proposals for a simpler structure – we have gone too far by proposing that our scheme should have retrospective effect.

                3.10               We also accept that, even if the general principle that our proposed new scheme should apply to all residential tenancy agreements, not just ones entered into after any new legislation comes into effect, is broadly agreed, there will need to be transitional provisions to protect essential rights available under existing arrangements. We consider below in Part XIV how existing tenancy schemes might map onto our proposals.

Housing status: the statutory schemes

                3.11               The current position is that the occupiers of residential accommodation may either fall into one of the following statutorily defined housing status categories or may fall outside these statutory schemes.

Secure tenancies

                3.12               Secure tenancies are created under the provisions of the Housing Act 1980, as consolidated into the Housing Act 1985.[2] Two specific conditions must be satisfied: a landlord condition[3] which restricts the secure tenancy regime local housing authorities; and a tenant condition.[4] In addition, tenancies created by registered housing associations between 1980 and before 15 January 1989 are secure tenancies for the purposes of security of tenure;[5]; though they are also “housing association tenancies”, and thus in effect treated as Rent Act protected tenancies, for the purpose of fair rent regulation.

Introductory tenancies

                3.13               Introductory tenancies are also created by local authorities under the provisions of the Housing Act 1996.[6] They can only be created in those authorities that have elected to adopt the introductory tenancies scheme; but once such election has been made, all[7]new tenancies created by the authority must be introductory, irrespective of whether such a tenancy is really appropriate for a particular tenant or not. Introductory tenancies usually last for a year, after which they become secure tenancies. The provide only very limited security of tenure to tenants.

Assured tenancies

                3.14               Assured tenancies are tenancies created by private landlords and registered social landlords which have been entered into on or after 155 ^thJanuary 1989.[8] Assured tenants have a high degree of security of tenure, similar to but not identical with secure tenants (above) and Rent Act protected tenants (below).

Assured shorthold tenancies

                3.15               Assured shorthold tenancies are, strictly, only a type of assured tenancy. Tenants have only limited security of tenure, apart any contractual period that may be agreed between the landlord and tenant. Initially they could only be created if the landlord adhered to a number of qualifying conditions; [9]from 28 February 1997, these conditions have been removed, and they are the “default” tenancy for the private rented sector.[10]

                3.16               All new private sector tenancies will be assured shorthold tenants, unless a landlord decides to opt into the fully assured tenancy. The category of landlord most likely to make such a choice is that of registered social landlords (housing associations) who provide social housing with long-term security of tenure. A small number of private housing charities and other private landlords who are not registered with the Housing Corporation are also thought to have made such a choice.

Rent Act protected tenancies

                3.17               These are tenancies created by private landlords before the Housing Act 1988 came into force on 15^th January 1989. No new Rent Act tenancies have been created since then.[11] But there is a significant number of tenants who retain Rent Act protection, either because they were the tenants under the original protected tenancy, or because they have the statutory right to succeed to the Rent Act protected tenancy.[12] As with assured and secure tenants, Rent Act tenants have a high degree of security of tenure.

Excluded tenure groups

                3.18               A large number of different groups of tenants and other occupiers are excluded from these principal statutory categories.

Tenancies falling within other statutory schemes

Mutual exclusions

                3.19               First, tenancies within one of the three principal regimes listed above are mutually excluded from coverage by another regime (for example, assured tenancies cannot be secure tenancies and vice versa).

                3.20               Tenants can however change tenure groups. For example, secure tenants will become assured tenants, when the “landlord condition” – that secure tenancies can only be created by local housing authorities – is no longer satisfied. This frequently occurs where local authority dwellings are transferred to registered social landlords.Similarly Rent Act protected tenants could become secure tenants, should a local housing authority purchase a dwelling formerly owned by a private landlord.[13]

Other statutory schemes

                3.21               Other categories of tenancy which fall outside the three principal regimes listed above include

                                                        (1)      business lettings,[14]

                                                        (2)      agricultural holdings,[15]

                                                        (3)      dwellings let with a substantial quantity of other land,[16]

                                                        (4)      long leases,[17] and

                                                        (5)      mobile homes.[18]

Lettings for particular purposes

                3.22               A number of types of letting for particular purposes have also been largely excluded from the three principal regimes. These include

                                                        (1)      lettings by educational institutions to students,[19]

                                                        (2)      holiday lettings,[20]

                                                        (3)      tied accommodation,[21]

                                                        (4)      licensed premises,[22] and

                                                        (5)      lettings of accommodation required by a minister of religion.[23]

                3.23               In addition, under the former Rent Acts, lettings by resident landlords (formerly, tenancies where furniture, board or attendance was provided), where the assumption was that lettings were likely to be on a short-term basis, were largely excluded from statutory protection.[24]

Tenancies which have been left outside the schemes

                3.24               There is a number of categories of tenancy which have been left outside the schemes, principally because the original focus of the schemes was on the dwellings of the poor and less well-off. In this category are excluded

                                                        (1)      properties above certain rateable value levels,[25]

                                                        (2)      properties above certain rental levels,[26] and

                                                        (3)      properties below certain rental levels at no or low rents (these are usually the subject of leasehold arrangements rather than shorter tenancy arrangements).[27]

Only or principal home

                3.25               In addition, there is a general principle that if a tenant already has a tenancy which falls within one of the principal schemes,[28] then the same tenant cannot have another tenancy falling within the same category. Protections are limited to the accommodation in which the tenant has his “only or principal home”.

Other exclusions from the secure tenancy regime

                3.26               Three categories of lettings/licences fall outside the secure tenancy scheme. These include

                                                        (1)      almshouse licences,[29]

                                                        (2)      dwellings on land acquired for development,[30] and

                                                        (3)      accommodation provided for temporary purposes, including housing for the homeless,[31] for asylum seekers,[32] persons taking up employment,[33] certain other accommodation provided on a short-term basis[34] and temporary accommodation provided during the carrying out of works.[35]

Other exemptions: Crown tenancies

                3.27               The position of residential lettings by the Crown has always been treated as a special case outside the statutory schemes.[36].

Licensees

                3.28               Those with licences to occupy premises are outside the basic statutory framework, apart from the limited category of secure licences which fall within the Housing Act 1985.[37] They do not fall entirely outside statutory protection. The Protection from Eviction Act 1977 applies to licences, unless they fall within a special sub-group of “excluded licences”.

Protection from Eviction Act 1977

                3.29               The Protection from Evictions Act 1977 provides that rights to occupation cannot be brought to an end without a notice to quit of at least 28 days from the landlord, and without the landlord obtaining an order from the court. This is a general rule that covers all occupiers of homes that fall outside one of the three principal schemes.Thus it can be more procedurally complex to obtain a court order for possession of a tenancy falling outside the principal regulatory regimes than for one within it.In particular, the summary procedures for obtaining possession of premises let under assured shorthold tenancies[38] are not available to landlords of premises wholly outside the protective framework.

                3.30               These provisions do not apply to “excluded licences and tenancies”.;Exclusions are not determined by the legal status of the occupiers as tenants or licensees, but are the result of factual characteristics set out in section 3A. A tenancy or licence is excluded if

                                                        (1)      the landlord or licensor shares accommodation[39] with the occupier and occupies the property as his only or principal home;[40]

                                                        (2)      a member of the landlord’s or licensor’s family[41] shares accommodation with the occupier and occupies the premises as his only or principal home;

                                                        (3)      it is granted as a temporary expedient to a person who entered the premises in question or any other premises as a trespasser;

                                                        (4)      it grants the tenant or licensee the right to occupy the premises for a holiday only;

                                                        (5)      it is granted otherwise than for money or money’s worth;

                                                        (6)      it is granted in order to provide accommodation under Part VI of the Immigration and Asylum Act 1999; or

                                                        (7)      it confers rights of occupation in a hostel within the meaning of the Housing Act 1985[42] where the landlord is listed in section 3A(8) of the Protection from Eviction Act 1977.[43]

Social Housing

                3.31               The Protection from Eviction Act applies to social landlords as much as private landlords. Therefore there is a requirement on the social landlord to obtain a court order to evict an occupier even if a particular occupancy arrangement is excluded from the Housing Act 1985 or the Housing Act 1988. This applies regardless of the lease/licence distinction.

                3.32               It is clear to us that there is a great deal of confusion amongst social housing providers about the law particularly in relation to the legal rights of occupiers of supported provision, provided for vulnerable groups. This confusion operates to limit tenants’ rights, distorts housing management decisions and ultimately brings the law into disrepute.[44]

Total exclusion from statutory regulation

                3.33               Where a tenancy (or licence) falls outside the principal regulatory regimes and is also excluded from the Protection from Eviction Act 1977, the legal relationship between landlord and occupier is governed by the common law and the terms of the agreement between the parties, plus any statutorily implied terms.

Criminal Law Act 1977, Part II

                3.34               The consequence of exclusion from the Protection from Eviction Act 1977 is that there is no need for the landlord/licensor to obtain a court order to evict the occupier and there is no need for the landlord to give 28 days’ notice to quit.[45] The process of determining the tenancy will be as provided for in the tenancy agreement; in the case of contractual licences, reasonable notice must be given if the contract does not deal with the issue.

                3.35               However, Part II of the Criminal Law Act 1977 may indirectly provide some statutory protection to the occupier.[46] Section 6 provides that any person who, without lawful authority, uses or threatens violence for the purpose of securing entry into any premises for himself or for any other person is guilty of an offence, provided that

                                                        (1)      there is someone present on those premises at the time who is opposed to the entry which the violence is intended to secure; and

                                                        (2)      the person using or threatening the violence knows that that is the case.

                3.36               There is an exception to the offence, set out in section 6(1A), available to the person seeking entry who is a displaced residential occupier or a protected intending occupier of the premises or someone who is acting on behalf of such an occupier. Protected intending occupiers are defined in section 12A of the Criminal Law Act 1977 and include someone with a freehold interest or a leasehold interest with not less than two years to run who requires the premises for his own occupation as a residence. The risk of exposing a protected intending occupier of premises to proceedings under the Criminal Law Act 1977[47] can be avoided if the person obtains an interim possession order[48] from the court.

                3.37               The complexity of these statutory provisions means that evictions without court orders, even if prima facie permitted by law, run the risk of criminal sanctions. Landlords are always well advised to seek the security of court orders.

SSecurity of tenure and gGrounds for pPossession

                3.38               We now set out, in summary form, the statutory grounds for possession that attach to each of the three principal schemes of protection. They are as follows:

Secure tenancies

                3.39               In relation to secure tenancies there are 18 grounds for possession.[49] They fall into three broad categories.

                                                        (1)      Those where the court has a discretion to order possession on the grounds that it is reasonable to do so.

                                                        (2)      Those where the court may order possession where suitable alternative accommodation is available.

                                                        (3)      Those where the court may order possession where it thinks this would be reasonable and where suitable alternative accommodation is available.

                3.40               Although we do not set out the full detail of each ground, we think that the reader may find it helpful to bear the following summary of the grounds in mind, particularly when we come to discuss how our proposed scheme for security of tenure may operate.

                3.41               The circumstances falling into category (1) are set out in table 1; those in category (2) in table 2, and those in category (3) in table 3.

Table 1 Secure tenancies: grounds where the court thinks it reasonable to order possession
Ground number	Ground
1	Rent arrears or breachof tenancy agreement.
2	Tenant or other person residing in or visiting causing a nuisance or being convicted for immoral/illegal use or for an arrestable offence in locality.
2 A	Domestic violence by the tenant, and victim is driven from the premises and unlikely to return.
3	Acts of waste or neglect by the tenant or other resident causing deterioration of dwelling.
4	Ill-treatment of furniture by tenant/resident causing deterioration.
5	False statement made to obtain tenancy.
6	Premium has been paid for a mutual exchange made under Housing Act 1985, section 92.
7	Tenant or other person residing in the premises has been guilty of conduct which makes it no longer right for him to retain job-related accommodation.
8	Secure tenant decanted to property while works done on main home and these works are now complete.

 

 

Table 2 Secure tenancies: grounds where suitable alternative accommodation is available
Ground number	Ground
9	The premises are statutorily over-crowded.
10	Landlord intends demolition or reconstruction or other works requiring possession.
10 A	Dwelling in area approved by the Secretary of State or the Housing Corporation for a redevelopment scheme.
11	Conflict with objects of charity, where landlord is a charity.

 

Table 3 Secure tenancies: grounds where suitable alternative accommodation is available and the court thinks it reasonable to order possession
Ground number	Ground
12	Tenant is ex-employee in job-related accommodation required for another person.
13	Specially designed property required for physically disabled person.
14	Landlord is specialist housing association or trust which requires the property for person in its client group.
15	Property is situated close to special needs provision, and is required for person with such special needs.
16	Tenant has succeeded to the premises, but they are now larger that reasonably required. Proceedings under this head cannot take place before six months after the previous tenant’s death, or more than 12 months after it. Special factors – age, time there, support to previous tenant – are to be taken into account.

 

Assured tenancies

                3.42               Under the assured tenancy regime there are now also 18 grounds for possession.[50] These are divided into two broad categories.

                                                        (1)      Mandatory grounds: where the court must order possession if the ground alleged is proved.

                                                        (2)      Discretionary grounds: where the court may order possession where it thinks it is reasonable so to do.

                3.43               The circumstances under category (1) are summarised in table 4, those in category (2) in table 5.

Table 4 Assured tenancies: grounds where the court must order possession
Ground number	Ground
1	Premises which are let are the landlord’s former or future principal home.
2	Mortgagee repossessing premises let by the landlord under ground 1.
3	Former holiday let which has been let for no more than eight months in the off season.
4	Fixed term tenancy of not more than 12 months of premises formerly let by an educational institution to a student.
5	Premises are held to be available for occupation by a minister of religion and the court is satisfied that they are actually required for occupation by a minister of religion.
6	Demolition or reconstruction or substantial works by original landlord, requiring possession.
7	Inherited periodic tenancy, where proceedings are started within 12 months after death or the date on which the landlord became aware of the death.
8	Rent arrears, eight weeks both at the date of the notice seeking possession and the date of the hearing.

 

Table 5 Assured tenancies: grounds where the court thinks it reasonable to order possession
Ground number	Ground
9	Suitable alternative accommodation.
10	Rent arrears at the date of the notice seeking possession and at the issue of the proceedings.
11	Persistent delay in paying the rent, even if no arrears now.
12	Any other breach of the tenancy agreement.
13	Waste or neglect by the tenant or other resident causing deterioration of dwelling.
14	The tenant or a person residing in or visiting the premises is guilty of conduct causing a nuisance or has been convicted for immoral/illegal use of the premises or for an arrestable offence committed in the locality.
14 A	(Registered social landlords only): tenant guilty of domestic violence, and victim is driven from the premises and is unlikely to return.
15	Ill-treatment of furniture by tenant or another resident causing deterioration.
16	Tenant is ex-employee of landlord living in accommodation needed for another employee.
17	False statement by the tenant to obtain the tenancy.

 

Rent Act protected tenancies

                3.44               As with assured tenancies, the 19 statutory grounds for possession (technically called “cases”[51]) are divided into two categories.

                                                        (1)      Discretionary, where the court may order possession if the ground alleged is proved and the court thinks it reasonable to make the order.

                                                        (2)      Mandatory, where the court must order possession if the ground alleged is proved.

                3.45               In addition, and unlike the codes for the secure and assured tenancy regimes, the ground for possession on the basis that the landlord is able to provide suitable alternative accommodation does not fall within the list of cases, but is found in a separate statutory provision in the body of the legislation.[52]

                3.46               The cases falling into category (1) are set out in table 6, those in category (2) in table 7.

Table 6 Rent Act tenancies: cases where the court thinks it reasonable to order possession
Case   number	Case
1	Rent arrears or other breach of the tenancy agreement.
2	Where the tenant or person residing or lodging with him or a sub-tenant is guilty of nuisance (more narrowly defined than for assured or secure tenancies) or has been convicted for immoral or illegal use of the dwelling.
3	Waste or neglect by the tenant or other resident causing deterioration of the dwelling.
4	Ill-treatment of furniture by the tenant or other resident causing deterioration.
5	Notice to quit issued by the tenant, where the landlord plans to sell the premises.
6	There has been an unauthorised assignment or sub-letting of the premises.
8[53]	The tenant is an ex-employee of the landlord and the premises are needed for a new employee.
9	The landlord or a member of his family reasonably requires the premises for their own home.
10	The tenant is over-charging a sub-tenant.

 

 

Table 7 Rent Act tenancies: cases where the court must order possession
Case number	Case
11	Premises are the landlords’ former or future home.
12	Premises are a home bought by the landlord in anticipation of retirement.
13	Letting is for a fixed period of no more than eight months of a dwelling used for holiday lettings.
14	The letting is for a fixed term of no more than 12 months of premises formerly let by an educational institution to students.
15	The premises are held for use by a minister of religion and are now required for a new incumbent.
16-18	Lettings of accommodation to former agricultural employees.
19	Protected shorthold tenancies.
20	Dwelling owned by a member of the armed forces now returning to live in it.

 

Occupiers outside the principal schemes

                3.47               Occupiers of residential accommodation who do not fall within one of these schemes have their rights determined principally by the contractual terms of their tenancy agreements. In addition, they come within the scope of the Protection from Eviction Act 1977, unless their agreement is an “excluded tenancy or licence”.[54]

The a

Assured tenancy, andsecure tenancy and rent act tenancy schemes compared

Use of mandatory grounds

                3.48               In the case of grounds 1 to 5 under the assured tenancy regime, and cases 11 to 20 under the Rent Act regime, the ability of the landlord to use the ground is not absolute, but is contingent upon the landlord issuing a notice at the start of the tenancy informing the tenant that he might seek to use the mandatory ground for possession.

                3.49               In the case of grounds 1 and 2 and cases 11, 12 and 20, the court has a discretion to dispense with this notice if that would be “just and equitable”.

                3.50               In the case of assured shorthold tenancies created before 28 February 1997, specific formalities were required as a pre-condition to the valid creation of the tenancy. These were

                                                        (1)      that a notice that the tenancy was an assured shorthold tenancy had to be served on the tenant by the landlord;

                                                        (2)      that the tenancy was for an initial fixed-term of six months; and

                                                        (3)      that the landlord did not have the power to determine the tenancy during that six months’ period.[55]

For assured shorthold tenancies created after that date, no such formalities are required.

                3.51               No mandatory grounds are available for secure tenancies, though the requirement that the court must find it reasonable to make the order for possession does not apply to grounds 9 to 11 where there is suitable alternative accommodation available.

Notices seeking possession

                3.52               Under the Rent Act scheme, it was always necessary to bring the contractual tenancy to an end before possession proceedings could be brought.

                3.53               Under the secure and assured tenancy schemes, this requirement has been replaced by a requirement that, before proceedings can be taken, notice that the landlord intends to bring proceedings must be given to the tenant.

Secure tenancies

                3.54               In the case of secure tenancies, the basic notice requirement may be waived by the court if the court thinks that it would just and equitable to do so.[56]

                3.55               Where the tenancy is a periodic tenancy and the ground specified is ground 2 (nuisance or anti-social behaviour), the notice must state that proceedings may be brought immediately, and specify the date on which the landlord seeks to ensure that the tenant gives up possession of the dwelling. The court cannot grant possession before that date.

                3.56               In the case of any other ground being used in relation to a periodic tenancy, the notice must state the date after which proceedings may be begun – which cannot be earlier than the date on which a valid notice to quit would have taken effect.[57] The notice must state that it will cease to be effective 12 months after the date specified in the notice.

                3.57               Where ground 2A is being used, the landlord must show that he has served or taken all reasonable steps to serve notice on the partner who has been driven from the dwelling by the domestic violence.[58]

                3.58               If the tenancy is a fixed term tenancy, the notice does not have to specify a date; nor is there any date after which it lapses.

Assured tenancies

                3.59               As with secure tenancies, the basic notice requirement may be waived if the court thinks this would be just and equitable. This exception does not, however, apply, where possession is sought under ground 8.[59]

                3.60               Where the ground on which possession is sought is ground 14, proceedings cannot be started before the date on which the notice was served. The earliest date on which possession will be sought does not have to be stated in the notice.

                3.61               In the case of proceedings brought under grounds 1, 2, 5 to 7, 9 and 16, the date before which proceedings can be brought must be at least two months from date of service of the notice, and, where the tenancy is periodic, the earliest date on which a valid notice to quit could become effective.[60]

                3.62               In any other case, the date is two weeks from service of the notice.[61]

                3.63               Proceedings must be brought within a year from the date specified in the notice.[62]This applies both where the tenancy is periodic and where it is fixed-term.

Assured shorthold tenancies

                3.64               There are distinct notice requirements which apply when the landlord seeks possession of an assured shorthold tenancy on the “notice-only” basis, without any particular ground for possession being specified. The notice requirements differ depending on whether the tenancy in relation to which possession is sought is a fixed-term tenancy or a periodic tenancy.[63]

Drafting differences

                3.65               Suitable alternative accommodation grounds are found listed in the grounds for possession in both in the secure tenancy regime and the assured tenancy regime. In the Rent Act it comes within a separate statutory provision and does not appear in the cases listed in the Rent Act Schedule of grounds for possession.

                3.66               In both the assured tenancy and Rent Act schemes, the right of the landlord to seek possession on the suitable alternative accommodation ground is expressed as a general ground. In the secure tenancy scheme, the circumstances in which the landlord may use the ground are defined with great precision.[64]

                3.67               Rent arrears and other breaches of the tenancy agreement are treated as one in the secure tenancy and Rent Act tenancy schemes; they are given separate treatment in the assured tenancy scheme.

                3.68               The renovations grounds (ground 8 in secure and ground 6 in assured) are respectively discretionary and mandatory.

                3.69               Overcrowding is only a specific ground (ground 9) in the secure tenancy scheme.

                3.70               The mortgagee ground is exclusive to the assured tenancy scheme (ground 2).

                3.71               The tenant’s notice to quit ground is only available in the Rent Act tenancy scheme (case 5).

                3.72               There are numerous other differences which largely derive from the fact that, as currently drafted, the grounds are designed to reflect the different interests of different classes of landlord.

Add in a para on the cases where a notice must be issued at the start of the tenancy to get the ground: distinguish those where the notice can be dispensed with from those not.

Add in a para on the notice seeking possession – differences in the time scales involved.It will be obvious, just looking at the above paragraphs that, though there are many similarities, tT alsosignificant Differences not relating to security of tenure

                3.73               Other important differences between the schemes include

                                                        (1)      a tenancy of a single room, with shared living accommodation, may be an assured tenancy;[65] it may not, however, be a secure tenancy;[66]

                                                        (2)      a licence may be statutorily treated as a secure tenancy.[67] Licences fall completely outside the assured tenancy regime, as they did under the Rent Act scheme;

 

 

                                                        (3)      rents under a secure tenancy are set by the local authority; rents under an assured tenancy are market rents or, in the case of registered social landlords, “affordable” rents;[68] and

                                                        (4)      tenants under a secure tenancy may qualify for the right to buy. Tenants under an assured tenancy do not in general qualify for such a statutory right unless they were formerly secure tenants in the public sector.[69]

The project goal

                3.74               The principal objective of this project is to develop proposals for law reform which simplify the current position, and to increase transparency and flexibility. This may be the first step in the creation of a comprehensive code of housing law which would codify all the law affecting the renting of housing.

                3.75               To repeat the point made in Part I[70] and anticipate the argument made more fully in Part VI, we think that the adoption of a consumer approach to housing law is a key building block for this long-term objective as well as forming a central part of the present project.

                3.76               As the first step, we argue that any simplification of the law must involve a reduction in the number of housing statuses and the existing differences between them. It must also seek to reduce the numbers of particular cases which are treated differently by being kept outside the basic legislative scheme.

                3.77               To achieve this goal, we have adopted a number of criteria which underpin our thinking which we set out here.

Two agreement types

                3.78               The first is that, to reduce the number of statuses, the regulatory framework should recognise only two statuses: the type I and the type II agreement.[71]

Inclusion not exclusion

                3.79               In order to achieve these goals we shall also be proposing that the numbers of types of agreement that currently fall outside the statutory schemes should be greatly reduced. While we acknowledge that a small number of  situations may need to fall outside these, we think the number of exceptions should be markedly reduced.[72]

Landlord neutrality

                3.80               While the fundamental aims of current legislation are much the same – the delineation of rights and responsibilities as between landlords and tenants – much of the specific detail in the law differs for no other reason than the separate landlord identity.  In our proposals we seek to ensure that, so far as possible, the definition of the key concepts used in our proposals are “landlord-neutral” and do not turn on the identity of particular landlord types.

                3.81               While ensuring that questions of definition are landlord-neutral, we accept that usage of the two types of tenancy will differ as between social landlords and private landlords. We anticipate that social landlords will usually use the type I tenancy, and private landlords the type II agreement. We shall be consulting on the degree to which social landlords should be able to use the type II agreement.[73]

The emphasis on the contract

                3.82               We are proposing that all agreements should be put into writing. The agreement will provide an accurate statement of the rights and obligations of the parties to the agreement, including a detailed statement of the circumstances in which a landlord may go to court to seek an order for possession.

                3.83               Imbalances in bargaining power between the parties will be mediated by the application of the principles set out in the Unfair Terms in Consumer Contracts Regulations 1999[74] to the agreement. To assist landlords, a number of model agreements[75] will be prescribed in a Schedule to regulations which will, by definition, be compliant with the requirements of the 1999 Regulations. Their use will enable landlords and tenants to avoid any uncertainty that may arise from the concept of “fairness” and protect landlords and tenants from those whose task it is to regulate consumer contracts.

Due process

                3.84               As indicated in Part I, nothing in these proposals is designed to weaken the principle that, in order to obtain possession, there should be due process, comprising both the need to warn a tenant – in writing – that proceedings are in contemplation, and the need to obtain an order from the court.[76]

Dispute resolution

                3.85               The courts will retain a key role to ensure that possession is not ordered without the satisfaction of due process. In addition, our scheme will be flexible enough to encourage appropriate alternative modes of dispute resolution. These may be particularly helpful in the context of nuisance and anti-social behaviour; as well for matters – outside the scope of this paper – such as disrepair.[77]

Incorporation of existing schemes and transitional provisions

                3.86               Finally we shall be seeking to address the issue that has led to so much of the complexity of the current law. Past practice has been to add new layers of law onto old. We seek to create a scheme which will not only apply to all new tenancies, but whichwill also embrace existing tenancies.[78]

                3.87               We accept that this may be controversial. However, even under the present system, individual tenants can find that their tenure category can change, for example where a local authority transfers its estates to a registered social landlord. We accept that there will need to be transitional provisions to ensure that important existing rights are not removed. For example, although we would like Rent Act protected tenants to be brought within our proposed type I tenancy, they would need to have their right of access to the rent officer and rent assessment committee maintained.

                3.88               Particular issues on the right to succession will be dealt with in our second consultation paper to appear later this year.