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You are here: BAILII >> Databases >> The Law Commission >> RENTING HOMES 1: STATUS AND SECURITY (A Consultation Paper) [2002] EWLC 162(4) (28 March 2002)
URL: http://www.bailii.org/ew/other/EWLC/2002/162(4).html
Cite as: [2002] EWLC 162(4)
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Part IV            

The Approach in other jurisdictions

                             4.1              As background to our work, we have given careful consideration to the new regulatory framework for social housing in Scotland which is set out in the Housing (Scotland) Act 2001.

                             4.2              We have also explored the various approaches adopted in a number of other common law countries for the regulation of residential tenancies. The countries selected for this purpose were Australia, Canada and New Zealand. Within their federal structures, in both Australia and Canada, this form of regulation is the responsibility of the state/provincial government. We have looked at models in the Australian Capital Territory, New South Wales, Victoria and South Australia (Australia) and in British Columbia and Ontario (Canada).

                             4.3              The following discussion concentrates on provisions within the Scottish and the Commonwealth legislation most closely related to the scope of this consultation paper.

Housing (Scotland) Act 2001[1]

                             4.4              The recent reform of social housing law in Scotland contained in the Housing (Scotland) Act 2001 is particularly relevant. Not only do the two jurisdictions share a history of statutory provision for residential lettings; they also share a commitment to social housing and a concern with social exclusion.

                             4.5              In Scotland, as in England and Wales, social housing is provided mainly, if not exclusively, by local authorities and housing associations. Social housing in Scotland plays an important role in the provision of affordable housing.

                             4.6              The nature of this provision is, however, changing. The Scottish Executive’s consultation paper[2] described the position thus:

Over the past thirty years the social rented sector in Scotland has become progressively smaller, and it now accounts for less than a third of housing across the country. At the same time as it has diminished in size, however, it has become more diverse. In particular the last quarter century has seen the growth of community-based housing associations as important players in the housing scene, and more recently we have seen increasing interest in exploring other innovative forms of social landlord.

                             4.7              Until the changes to housing law in England and Wales, introduced by the Housing Act 1996 (which did not apply to Scotland[3]), the legal framework for social housing in Scotland was substantially the same as that of England and Wales.[4] Following the Housing (Scotland) Act 1988 two different forms of legal tenure existed within the social rented sector:

                                                        (1)      the secure tenancy, provided by the local authority landlord, governed by Part III of the Housing (Scotland) Act 1987; and

                                                        (2)      the assured tenancy, provided by the housing association landlord, governed by Part II of the Housing (Scotland) Act 1988.

The two forms of tenancy provided different rights to tenants. The right to buy was limited to secure tenants[5] who also enjoyed greater security of tenure. Only assured tenants could be evicted under a mandatory ground – ground 8 – when they owed at least three months arrears of rent.[6]

                             4.8              The implications of two forms of tenure existing within the social rented sector were made explicit in the consultation paper.[7]

This situation is confusing to tenants, and results in anomalies whereby, for example, two tenants in identical accommodation owned by the same housing association can have significantly different rights and obligations. We believe that there should be a uniform set of rights and obligations across the socially rented sector, so that tenants and landlords know where they stand. In essence, all types of social landlord are providing the same range of services for tenants. The fundamental similarities of the service and the current inequalities in tenancy rights will become even clearer as local authorities and local communities contemplate the merits and implications of transferring houses into community ownership.

                             4.9              The primary purpose of the Housing (Scotland) Act 2001 is to create one form of tenancy for all social housing – the Scottish secure tenancy. The Act also simplifies and modernises the existing law, makes new provision for anti social behaviour, extends secure tenants’ rights and creates the short Scottish secure tenancy. In addition the Act includes provisions – not considered here – relating to homelessness and creates a unified regulatory framework for social landlords.

Creating one form of social tenancy

                          4.10              The Scottish secure tenancy is based upon the former secure tenancy scheme. The definition in section 11 of the Housing (Scotland) Act 2001 is broadly similar to sections 79 to 81 of the Housing Act 1985,[8] but is extended to include registered social landlords. The categories of excluded tenancies set out in Schedule 1 of the Act largely overlap. The structure and content of the grounds for possession in Schedule 2 are a modified and updated version of the grounds in Schedule 2 of the 1985 Act.

                          4.11              Registered social landlords are therefore returned to their pre-Housing (Scotland) Act 1988 position. The rights of their tenants have been aligned with those of local authority tenants. Registered social landlords no longer have available to them the mandatory rent arrears – ground 8 – which was a feature of the assured tenancy scheme.[9]

                          4.12              There are a number of notable differences between the old and the new schemes. First, the right to succession to a Scottish secure tenancy is extended in section 22 to a second successor.[10] Secondly, there is no ground for possession for under-occupation by a spouse successor as in Ground 16 of Schedule 2 of the Housing Act 1985. Thirdly, once a tenancy is a Scottish secure tenancy it will continue as one even if the landlord and/or tenant ceases to comply with the conditions set out in section 11(1) (b), (c) and (d) of the Act.[11]

Simplification and modernisation

                          4.13              The Housing (Scotland) Act 2001 has provided a vehicle for the simplification of the law relating to the social tenancy sector. Primarily this has been achieved by reducing two forms of tenure to one. However there have been other modifications.

Tenant termination and abandonment

                          4.14              Difficulties have been caused by the failure of the Housing Act 1985 to prescribe a statutory mechanism for a tenant wishing to terminate the tenancy. The tenant is able to use the common law methods of notice to quit or surrender. But it is not always easy for a landlord to know whether there has been a surrender of the property.[12] Nor did the law provide a simple means for the landlord to regain possession of a property it believes has been abandoned.

                          4.15              Section 12 of the Housing (Scotland) Act 2001 restricts the termination of the tenancy by either landlord or tenant to the statutory provisions. Under these a tenant must either give four weeks’ notice to the landlord, or enter into a written agreement with the landlord to terminate the tenancy.

                          4.16              Two separate devices have been included in the Act to deal with the situation where the tenant fails to comply with section 12 and the property appears to have been vacated.

                          4.17              First, the landlord is given a ground for possession (ground 5 of Schedule 2) when the tenant and, where relevant, the tenant’s spouse or co-habitee have been absent from the house without reasonable cause for a continuous period exceeding six months or have ceased to occupy the house as their principal home.

                          4.18              Secondly, sections 17 to 21 set out a procedure for the landlord to regain possession by service of four weeks’ notice on the tenant of its intention to terminate the tenancy where it has reasonable grounds for believing that the house is abandoned. The process only requires the court to become involved if a tenant aggrieved by this procedure applies to court for a remedy[13] within six months of the termination of the notice period.[14]

Notice requirements

                          4.19              The notice requirements, which must be complied with by a landlord before it starts possession proceedings, are set out in section 14(4). They apply to all grounds of possession set out in Part 1 of Schedule 2. The section provides that the notice must contain a date on or after which the landlord may raise proceedings for recovery of possession which is not earlier than the later of four weeks from the date of service of the notice or the date on which the tenancy could have been brought to an end by a notice to quit, had it not been a Scottish secure tenancy.

                          4.20              This contrasts with the requirements of section 83 and section 83A of the Housing Act 1985.[15] These provide for different (and shorter) notice periods where possession is sought on anti social behaviour or domestic violence grounds. Finally section 83 of the Housing Act 1985 allows the court to dispense with the notice requirements when it considers it just and equitable to do so. There is no parallel provision in the Scottish legislation.

                          4.21              The validity of a notice of intention to take proceedings is limited to six months under the Housing (Scotland) Act 2001 in contrast with the 12 months period of validity under the Housing Act 1985.

Other provisions

                          4.22              The Scottish secure tenancy regime contains several provisions which modernise the framework of social housing to reflect a greater variety of domestic lifestyles and living arrangements. The overarching duty – set out in section 106 of the Housing (Scotland) Act 2001 – on the Scottish ministers, local authorities and registered social landlords to consider equal opportunities in exercising their functions is amplified by more detailed provisions.

                          4.23              There are also provisions enabling individuals occupying or intending to occupy the house as their only or principal home to apply jointly with the tenant in writing to the landlord to be included as a joint tenant under the tenancy; and enabling “qualifying occupiers”[16] to be joined as parties to possession proceedings.

Anti social behaviour

                          4.24              The Scottish Executive has given priority to the need to provide social landlords with the means to respond effectively to anti social behaviour both by tenants and others.[17]

                          4.25              The grounds for possession most relevant to anti social behaviour had already been amended to provide provisions similar to ground 2 of Schedule 2 of the Housing Act 1985 as amended by the Housing Act 1996. The Housing (Scotland) Act 2001 further enhances the mechanisms available to social landlords to respond to the problem.

                          4.26              The Act re-enacts the existing law. In addition, ground 8 – a management ground for which there is no equivalent in the Housing Act 1985 and which enables a landlord to move a tenant who is causing nuisance or annoyance to other accommodation – has been extended to cover the same range of alleged perpetrators of anti social behaviour as provided for in the Housing Act 1985, Schedule 2, ground 2.

                          4.27              The most innovative measure for the control of anti social behaviour is the short Scottish secure tenancy. The Act does not follow the model which allowed local authorities in England and Wales to elect to use introductory tenancies as probationary tenancies for all new tenants. Instead Scottish social landlords can – where the prospective tenants have within the last 3 years been evicted on conduct grounds, or where the prospective tenant or a person who it is proposed will reside with the prospective tenant is subject to an anti social behaviour order under section 19[18] of the Crime and Disorder Act 1998 – let the property on a short Scottish secure tenancy.

                          4.28              The Act also enables the landlord to convert an existing Scottish secure tenancy to a short Scottish secure tenancy when the tenant or a person residing or lodging with the tenant is subject to an anti social behaviour order under section 19 of the Crime and Disorder Act.

                          4.29              The short Scottish secure tenancy is defined in section 34 of the Act. It is similar to the original form of the assured shorthold tenancy. It must be for a term of six months or more and the prospective tenant must be served a notice that it is to be a short Scottish secure tenancy. The tenant can be evicted without reason on two months’ notice. Notable differences however are that the tenancy will, in certain circumstances set out in section 37 of the Act, be converted or re-converted into a Scottish secure tenancy. Furthermore there is a duty on the landlord to provide the tenant and other occupiers with support services to enable the conversion to take place.

                          4.30              This provides a flexible tool to manage anti social behaviour at any time during the lifetime of a tenancy and to encourage changed (and improved) behaviour on the part of tenants and their families.[19]

                          4.31              A landlord can only evict for anti social behaviour when the court decides that it is reasonable to do so. In English law, judges have considerable discretion under the Housing Act 1985 to determine reasonableness[20] and this may lead to a lack of predictable outcomes for both the landlord and the tenant.[21] The Housing (Scotland) Act 2001 structures this discretion. Section 16 (3) sets out the matters which must be taken into account when deciding reasonableness in possession proceedings involving conduct grounds.

                          4.32              This means the court must take into account the extent to which someone other than the tenant was responsible for the anti social conduct, the effect which the conduct has had on people other than the tenant and any action taken by the landlord, prior to issuing proceedings, to try to stop the conduct.

                          4.33              The interface and overlap between the grounds for possession and the offence of harassment is made explicit by providing that harassment is to be construed in accordance with section 8 of the Protection from Harassment Act 1997.[22]

Tenants’ Rights

                          4.34              In “Better Homes for Scotland’s Communities: the Executive’s proposals for the Housing Bill” it is made clear that the Housing (Scotland) Act 2001 is intended to strengthen secure tenants’ rights. There is also, however, a recognition of the value of the flexibility that the assured tenancy regime provided; so the rights given in the Act are described as core statutory rights which can be supplemented locally, with agreement between the landlord and tenant, by additional contractual rights.

                          4.35              Section 23 of the Housing (Scotland) Act 2001 sets out the tenant’s right to a written tenancy agreement and information, and provides a power for the Executive to issue guidance as to the form and content of a tenancy agreement. The Scottish Executive has now published a model Scottish Secure Tenancy which is clearly structured and written in plain English.[23]

                          4.36              The Housing (Scotland) Act 2001 provides important extensions to the core rights of social tenants.

Repairs

                          4.37              The Housing (Scotland) Act 2001 includes, in Schedule 4, a statutory statement of the landlord’s repairing obligations, replacing and extending the former mix of common law and statutory duties. In particular, paragraph 1 states that

The landlord in a Scottish secure tenancy must-

(a) ensure that the house is, at the commencement of the tenancy, wind and watertight and in all other respects reasonably fit for human habitation, and

(b) keep the house in such condition throughout the tenancy.

                          4.38              In addition, regulations will set out the extent of the Scottish secure tenant’s right to repair.

Variation

                          4.39              Section 24 of the Housing (Scotland) Act 2001 sets out the mechanisms by which the tenancy agreement may be varied. It requires either that the variation is by written agreement between the landlord and the tenant or that the relevant statutory procedure is complied with.

                          4.40              Section 25 provides that the landlord must give at least four weeks’ notice of an increase in rent and that, prior to giving notice, it must consult with its tenants and have regard to the views expressed by those consulted.

                          4.41              Other terms can only be varied by the landlord with the consent of the tenant. Where the landlord cannot obtain the consent of the tenant the proposed changes must by ratified by a court.

                          4.42              A tenant also has the right to vary terms of the tenancy (other than those relating to rent) on the grounds:

                                                        (1)      that there have been changes in the character of the house of the neighbourhood or other circumstances making the term either unreasonable or inappropriate,

                                                        (2)      that the term is unduly burdensome compared with any benefit resulting from its performance, or

                                                        (3)      that the existence of the term impedes some reasonable use of the house.

                          4.43              If the landlord does not agree the variation the tenant may apply to the court.

Short Scottish secure tenancies

                          4.44              As well as being used in the context of anti social behaviour, short Scottish secure tenancies may be used to grant security of tenure for at least six months to certain tenants who would otherwise be excluded from statutory protection. The grounds for granting short Scottish secure tenancies are set out in Schedule 6 to the Act. They include

                                                        (1)      temporary lettings to persons moving into the area in order to take up employment there, and for the purpose of enabling that person to seek accommodation in the area;

                                                        (2)      temporary lettings pending development;

                                                        (3)      temporary accommodation for homeless persons;

                                                        (4)      temporary accommodation for persons requiring housing support services; and

                                                        (5)      accommodation in property not owned by the landlord.

Commonwealth legislation

                          4.45              We have also considered statutory regulation of residential tenancies in a range of Commonwealth jurisdictions. The housing policy framework underpinning the legislative provisions in each jurisdiction will vary depending upon the housing market, the extent of provision of social housing and the existence and nature of subsidies for housing costs. The most recent Commonwealth statutes were an explicit attempt to reform and modernise their existing law.

                          4.46              For example, in Australia – in contrast to the United Kingdom – the general common law principles of landlord and tenant had traditionally applied to residential tenancies, with only minimal intervention by statute in the development of the law. Even those few developments that had occurred had applied equally to all types of tenancy. In the mid-1970s two major reports of the Commonwealth Commission of Inquiry into Poverty concluded that the general common law had failed to adapt to modern residential tenancy needs. New legislation specifically directed to residential tenancies was then mooted in Australia.[24] Over the next 20 years, such legislation was drafted in most Australian States. Despite being politically controversial and strongly contested by landlord interest groups at the time,[25] these reforms are now considered the norm in most Australian States. We have been able to draw some useful conclusions from our analysis.

Consumer perspective

                          4.47              First, one very important theme that emerges from the analysis is that landlords’ and tenants’ rights and responsibilities are set within a consumer protection framework.[26] Key features of this approach are that

                                                        (1)      parties retain their freedom to contract within statutory constraints;

                                                        (2)      market rents prevail, but with statutory controls on excessive rent increases; and

                                                        (3)      the statutes contain comprehensive and comprehensible provisions regulating the whole relationship between landlord and tenant.

                          4.48              Most jurisdictions provide a mechanism enabling tenants to challenge the terms of their agreement. For instance, section 28 of the Residential Tenancies Act 1997 (Victoria, Australia) allows the tribunal to declare invalid or vary a term of the tenancy agreement if it is satisfied that the term is harsh or unconscionable.

Comprehensible provisions

                          4.49              Most of the statutes considered were remarkable for the clarity of their language. In particular the New South Wales legislation – the Residential Tenancies Act 1987 and the Residential Tribunal Act 1998 – contains readily comprehensible provisions.

Administrative support

                          4.50              Most of the jurisdictions provide integrated administrative support with information and research functions underpinning the regulatory framework. In addition there is an emphasis on mechanisms to avoid disputes or to provide cheap and informal resolution of disputes where necessary.

                          4.51              It is also worth noting the internet resources dedicated to residential lettings maintained by the relevant state administration. These provide a range of useful information, including tribunal decisions and help-lines for both landlords and tenants.[27]

Comprehensive provision

                          4.52              In general the statutes are comprehensive in that they cover all residential occupancies with no requirement of exclusive possession[28] and no requirement that the occupancy is as the occupier’s “only or principal home”. This is despite the fact that most of the statutory frameworks include provisions that operate to give residential occupiers exclusive occupationalrights, for instance the covenant of quiet enjoyment.

                          4.53              Some jurisdictions have a single regulatory framework for both social and private residential lettings. Social housing is then exempt from certain provisions, such as rent increases, but additional grounds are given for possession, such as ceasing to be financially eligible for public housing.

                          4.54              Whilst none of the statutes claims that they provide a residential lettings code, it does appear that there is a move towards codifying residential letting provisions in several of the jurisdictions. In particular the Residential Tenancies Act 1997 (Victoria, Australia) contains a comprehensive set of statutory provisions relating to both public and private lettings.[29]

Exclusions

                          4.55              There is a wide variety in the scope of the exclusions, which probably reflects both the history of and contemporary housing arrangements in the jurisdictions concerned. Holiday lets and lodgings where there is a resident landlord are always excluded. Several jurisdictions exclude long lets – generally fixed terms of more than five years.

                          4.56              The Residential Tenancies Act 1987 (New South Wales, Australia) also gives a wide-ranging power to exclude certain types of occupancy by regulation. This has been exercised to exempt, amongst others, premises used for aged persons’ accommodation, leases of certain leasehold strata scheme properties and premises subject to certain equity purchase agreements.[30]

Issues addressed

                            4.57              A full range of issues that may cause conflict between landlords and tenants during the lifetime of the arrangement is regulated. For instance, the landlord’s right of access to the property is set out in detail in several of the statutory frameworks; so, too, are the responsibilities of the landlord for the condition and repair of the premises.[31]

                          4.58              Sections 14 to 16 of the Residential Tenancy Act 1996 (British Columbia, Canada) not only specify the landlord’s right of access, it also allows the court to authorise the tenant to change the locks if it is satisfied that the landlord is likely to contravene those rights. It also allows an arbitrator to suspend any of the landlord’s rights of entry and/or order that a right of entry of the landlord be exercised only on conditions ordered by the arbitrator.

Procedures

                          4.59              In addition a range of procedural matters are set out in detail. For instance, section 42 of the Residential Tenancy Act 1996 (British Columbia, Canada) contains clear provisions detailing the formal requirements for a notice of end of tenancy agreement, the consequences of failure to comply with these requirements and the powers of courts to amend defective notices. Section 43 deals with the common failure to give the correct effective date for the end of the tenancy by deeming the notice to be effective on the earliest date permitted under the Act.

Notice-only possession proceedings

                          4.60              The majority of the jurisdictions permit the termination of the letting agreement without cause as long as there is compliance with notice and other procedural requirements.[32] However most of the jurisdictions (including all of the Australian statutes considered) also seek to prevent “retaliatory evictions”, that is to say evictions which are simply a response to a tenant exercising or proposing to exercise a statutory right or a power.[33]

Requirements for writing

                          4.61              There is a variety of arrangements for ensuring that the parties to the agreement are fully aware of the provisions. Sections 13 and 13(B) of the amended[34] Residential Tenancies Act 1986 (New Zealand) require that the agreement and any variations be in writing and signed by both the landlord and the tenant. Section 13(A) prescribes a relatively extensive minimum of information that must be included in the tenancy agreement. Section 13(C) sets out the default provision that tenancy agreements are not unenforceable on the grounds that they are not in writing.

                          4.62              Section 26 of the Residential Tenancies Act 1997 (Victoria, Australia) provides that if tenancy agreements are in writing then they must be in the prescribed standard form. Section 66 of the Act prescribes the written information which must be given to the tenant by the landlord on or before the occupation day.

                          4.63              One of the more extensive sets of provisions is contained in the Residential Tenancies Act 1997 (Australian Capital Territory). Section 7(a) provides that a residential tenancy agreement must contain, or will be taken to contain, terms to the effect of the prescribed terms. There are no less than one hundred prescribed terms set out in the Schedule to the Act, governing all aspects of the landlord and tenant relationship. Section 7(b) provides that a residential tenancy agreement may contain any other terms provided that either they are consistent with the prescribed terms or, if inconsistent, have been endorsed by the Tribunal. Similar mechanisms exist within the Residential Tenancies Act 1987 (New South Wales, Australia).

                          4.64              In contrast, the Tenant Protection Act 1997 (Ontario, Canada) contains no requirement for a written agreement and no prescribed terms. Information that the landlord must give to the tenant is limited to the legal name and address for the purpose of giving notices or documents under the Act.[35]

Dispute resolution

                          4.65              All but one of the jurisdictions considered here have a specialist tribunal system. The tribunals have extensive powers, including the power to make possession orders, monetary compensation orders, orders requiring a party to undertake designated work, orders reducing a rent the tribunal finds to be excessive, restraining orders, the power to waive defects in notices and to shorten the term of fixed term tenancy agreements in certain circumstances.

                          4.66              The tribunal system has been very successful in many of these jurisdictions. The caseload of the Australian tribunals has exceeded all expectations, with applications in the large state of New South Wales reaching 20,000 per year. The cases are heard very cheaply; filing fees are extremely low and legal representation is only allowed in exceptional cases. Cases are also heard speedily with applications for compensation usually determined within a month, applications for termination within two weeks and in cases of alleged vandalism or damage to the rental property within a matter of hours.[36]

                          4.67              The Residential Tenancies Act 1997 (Victoria, Australia) also includes “fast-track” procedures, which enable landlords to obtain an order for rental arrears or a possession order without a hearing by the Tribunal. There is also a “fast-track” procedure to enable tenants to get a prompt order requiring the landlord to carry out “urgent” repairs.

Alternative dispute resolution

                          4.68              All the jurisdictions considered provide for alternative dispute resolution. For example, full and detailed provisions for the arbitration of tenancy agreements are contained in Part 4 of the Residential Tenancy Act 1996 (British Columbia, Canada). By section 18 of that Act a landlord and tenant are deemed to have agreed to submit to an arbitrator a large number of matters including repairs, rent reduction, the right to assign or sublet and security deposit return.

                          4.69              The New Zealand legislation differs from its Australian counterparts in that it requires most applications to the tribunal to first be referred to mediation.[37] Mediated agreements constitute a binding and legally enforceable order. This system of mediation is advantageous to the disputants in that it is paid for by the interest from rental deposits.[38] Thus disputes can be resolved at no cost to the parties in a process which may help to improve future relations between them.[39] It also reduces pressure on the tribunal system; two-thirds of residential tenancy disputes in New Zealand are now resolved by mediation without ever coming before the tribunal.[40]

Deposits

                          4.70              Deposits can be a major source of tension between landlords and tenants. More than half of the jurisdictions considered provide for the centralised holding of deposits by the state. In general, upon receipt of the deposit the landlord must lodge it with a state-run trust account until the termination of the tenancy agreement. The tribunal or the state administration resolves disputes arising from the return of deposits. [41]

                          4.71              The interest from the deposit holding accounts is used by the state to finance the regulation of residential lettings, to cover the running costs of the tribunal system (where applicable) and to fund information and research functions.

                          4.72              It is not just the return of deposits that causes problems. Financial matters such as the amount of the deposit; requests for “holding deposits”(that is a sum required by the landlord to hold the property for the tenant prior to the tenancy being agreed); rent in advance or responsibility for the payment of legal fees also provide potential for dispute or exploitation. Most of the jurisdictions considered have made provisions to regulate these matters. For instance, section 18 of the Residential Tenancies Act 1997 (Australian Capital Territory, Australia) prohibits the lessor from requiring a “holding deposit”, as does section 36 of the Residential Tenancies Act 1987 (New South Wales, Australia). Section 50 of the Residential Tenancies Act 1997 (Victoria, Australia) permits “holding deposits” but sets a short time limit for their refund.

                          4.73              In general the statutes provide that landlords must keep accurate records of rent paid and provide receipts.

Anti social behaviour

                          4.74              All the statutes make explicit the duties of the tenant to behave appropriately. A typical example is section 23(1) of the Residential Tenancies Act 1987 (New South Wales, Australia), which providesthat “it is a term of every residential tenancy agreement that: (a) the tenant shall not use the residential premises, or cause or permit the premises to be used, for any illegal purpose, (b) that the tenant shall not cause or permit a nuisance, and (c) that the tenant shall not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant.”

                          4.75              All of the jurisdictions make the tenant responsible for the actions of others. The Residential Tenancies Act 1995 (South Australia) contains a statement of the tenant’s vicarious liability for the acts or omissions of any person on the premises at the invitation or with the consent of the tenant.

                          4.76              Section 41 of the Residential Tenancies Act 1986 (New Zealand) provides that the tenant shall be responsible for anything done, or permitted to be done, by any person who is on the premises with the tenant’s permission, if the act or omission would have constituted a breach of the tenancy agreement had it been the act or omission of the tenant. It also includes a rebuttable presumption that the tenant will have permitted a person who caused damage to the property to be in the premises.

                          4.77              In addition the New Zealand legislation places a duty on the landlord in respect of protecting the tenant from the anti social behaviour of the landlord’s other tenants. Section 45(1)(e) provides that the landlord shall “take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort or privacy of the tenant in the use of the premises.”

                          4.78              The statutes contain a variety of mechanisms to allow the landlord to respond quickly to anti social behaviour. For instance, sections 243 to 244 of the Residential Tenancies Act 1997 (Victoria, Australia) allow the landlord to give immediate notice where the tenant or a visitor of the tenant has caused malicious damage to the property (including common parts) or has endangered the safety of occupiers of neighbouring premises.

                          4.79              A particularly interesting method of regulating hostel and other managed accommodation is contained in the Residential Tenancies Act 1997 (Victoria, Australia). In sections 367 to 377 managers of managed premises – including buildings with two or more rented premises and an on-site manager, rooming houses and caravan parks – can give residents or their visitors notice to leave the managed premises if the manager reasonably believes that a serious act of violence has occurred or the safety of someone on the premises is in danger from the resident or a visitor. It is a criminal offence to remain on the premises if notice to leave has been given. The notice operates to suspend the tenancy agreement for two days during which time the landlord may apply to the tribunal for an order to terminate the tenancy. The application must be heard by the tribunal within two days.

                          4.80              The New South Wales legislative framework contains two useful mechanisms which reflect the additional responsibilities of social landlords.

                          4.81              First, it provides an additional ground for possession for social landlords. Section 64(6) of the Residential Tenancies Act 1987 allows the tribunal to make an order for possession immediately if the breach of the agreement involves the use of the premises, or any property adjoining or adjacent to the premises, for the purposes of the manufacture or sale of prohibited drugs or subjects persons or property to unreasonable risk.

                          4.82              Secondly, section 64(4) provides that the tribunal, in considering the circumstances of a case concerning social housing premises, must – in addition to having regard to the circumstances of the tenant and other circumstances of the case – have regard to other matters. These are

                                                        (1)      any serious adverse effects the tenancy has had on neighbouring residents or other persons,

                                                        (2)      whether the breach of the residential tenancy was a serious one and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk,

                                                        (3)      the landlord’s responsibility to its other tenants,

                                                        (4)      whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, and

                                                        (5)      the history of the tenancy concerned.

                          4.83              Sections 62 to 65 of the Tenant Protection Act 1997 (Ontario, Canada) contain four grounds for the termination of the tenancy in response to anti social behaviour but also contains provisions that allow the tenant to remedy the situation within seven days, thus rendering the notice void. However, under section 67 of the Act, a repetition of the activity within six months of the notice becoming void is a ground for termination on 14 days’ notice.

Minors and tenancies

                          4.84              The Residential Tenancies Act 1986 (New Zealand) contains a useful provision that provides a mechanism to balance the need of a minor to have a tenancy agreement against the potential exploitation arising from a lack of understanding of the responsibilities involved. Section 14 provides that minors who are or have been married are bound by the tenancy and in other cases an application can be made to the tribunal to approve a tenancy with a minor. The tribunal may also enquire into the fairness of an arrangement where approval has not been sought and approve it if reasonable to do so.

Conclusion

                          4.85              Both the Scottish and the Commonwealth approaches to the reform of residential lettings have provided examples which have potential for our project.

                          4.86              Although the Housing (Scotland) Act 2001 is limited to the social rented sector, it contains some useful models for solutions to particular legal and practical problems within that sector, such as the procedure for the recovery of abandoned premises and the statutory structuring of discretion.

                          4.87              Certain concerns, such as the eradication of anti social behaviour and the need to minimise areas of conflict between landlord and tenant, are clearly universal and we have much to learn from comparative approaches.

                          4.88              All of the legislation we have considered has concentrated on providing comprehensive provisions which are transparent and comprehensible to the landlord and tenant. It is clear that this has to be the basis for a consumer approach to housing law. However it is also clear that simplicity is not necessarily consistent with this approach,[42] and a careful balance has to be achieved between detailing the respective rights and responsibilities of landlords and tenants and overwhelming the parties with prescriptive and technical provisions.

 


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[1]For a helpful summary, see Simon Halliday, “Lessons from North of the Border: a Brief Commentary on the Housing (Scotland) Act 2001” [2001] JHL 79.

[2]Scottish Executive, Better Homes for Scotland’s Communities – The Executive’s Proposals for the Housing Bill (5th July 2000) at para 3 of “The Executive’s strategy and legislative proposals”. Cf http://www.scotland.gov.uk/consultations/housing/bhsc-00.asp

[3]Save for the provisions in the Housing Act 1996, Part IV relating to housing benefit: Housing Act 1996, s 231.

[4]For a useful explanation of Scottish housing law cf Peter Robson and Simon Halliday, Residential Tenancies (2nd ed 1998).

[5]Housing (Scotland) Act 1987, s 61. The right to buy was further preserved for tenants who became assured tenants as a consequence of a voluntary transfer; cf the Housing (Scotland) Act 1987, s.81A, as inserted by Housing Act 1988, s 128.

[6]Ibid,  s 18 and Sched 5, Ground 8. Housing Act 1996, s 101 – which reduced the amount of arrears under the equivalent ground in England and Wales to two months – does not apply in Scotland.

[7]Scottish Executive, Better Homes for Scotland’s Communities – The Executive’s proposals for the Housing Bill (5th July 2000) section 1, para 3.

[8]Comparisons are made between the Housing (Scotland) Act 2001 and the Housing Act 1985 because of the greater familiarity of our readership with the statutory framework within England and Wales. However readers should note that the provisions governing secure tenancies in Scotland despite being largely identical to the English provisions were actually contained within the Housing (Scotland) Act 1987.

[9]In “Rights and Security in Housing: the Repossession Process in the Social Rented Sector” (1999) 62MLR 11, Mullen et al point out that in general Scottish housing associations have issued to their tenants a model assured tenancy agreement published by the Scottish Federation of Housing Associations rather than taking full advantage of the Housing Act 1988. The model is designed to give contractual rights for housing association tenants which are as close as possible to existing secure tenants’ rights. Despite this a significant number of housing associations retained and used the mandatory rent arrears ground.

[10]We shall be discussing the question of rights of succession in a later consultation paper: see para 1.11 above.

[11]Section 11(8). Section 11(1)(b) to (d) sets out the landlord and tenant conditions.

[12]Eg Zionmor v Islington LBC (1997) 30 HLR 822. Here the tenants notice addressed to those “who have written graffiti on the walls of my flat” left on the tenants notice board was held not to be conduct that amounted to surrender of his tenancy. The note had not been addressed to the landlord and did not evidence an unequivocal intention to relinquish possession, especially in the context of his continuing right to buy application.

[13]Section 18(3) provides that, where a tenancy has been terminated in accordance with that section, the landlord may take possession of the house without any further proceedings. Section 19(3) outlines the remedies available to a tenant who successfully challenges the termination of a tenancy under s 18(2).

[14]This procedure is a re-enactment of the provisions in the Housing (Scotland) Act 1987, ss 49 to 51. There is no equivalent procedure in the Housing Act 1985.

[15]Much of the complexity is caused by the amendments made under Housing Act 1996, s 147.

[16]“Qualifying occupier” is defined in the Housing (Scotland) Act 2001, s 14(6) as “a person who occupies the house as that person’s only or principal home and who is (a) a member of the tenant’s family aged at least 16 years, (b) a person to whom the tenant has, with the landlord’s consent under section 32(1), assigned, sublet or otherwise given up possession of the house or any part of it, or (c) a person whom the tenant has, with such consent, taken in as a lodger”.

[17]See for instance the introduction to the Scottish Executive’s paper, Housing and Anti social Behaviour: The Way Ahead (14th Jan 2000). Available at http://www.scotland.gov.uk/ library2/ doc10/hasb-00.asp.

[18]The English and Welsh equivalent to this section is found in the Crime and Disorder Act 1998, s 1.

[19]Cf Rebecca Cattermole, “Introductory Tenancies and the Human Rights Act: R (on the application of Johns and McLellan) v Bracknell Forest District Council” [2001] JHL 27 and “Introductory Tenancies and the Human Rights Act” [2002] JHL 7.

[20]Though there is a certain amount of case law on the exercise of discretion: see paras 12.13 and, in connection with anti social behaviour, 13. 72 below.

[21]Cf Jonathan Manning, “Reasonableness: A New Appoach” [1998] JHL 59.

[22]Housing (Scotland) Act 2001, Sched 2, ground 7(2).

[23]Cf http://www.scotland.gov.uk/library3/housing/msst-00.asp

[24]A Bradbrook, “Residential Tenancies Law – The Second Stage of Reforms” (1998) 20 Sydney Law Review 402, 402 to 3.

[25]Ibid.

[26]Eg the Director of the Office of Fair Trading and Business Affairs administers the Residential Tenancies Act 1997 (Victoria, Australia) as provided by s 486 of that Act. Further, s 486(a)(ii) provides that complaints about excessive rent are made to the Director.

[27]Eg http://www.minhousing.govt.nz/tenancy and http://www.pssg.gov.bc.ca/rto/index.htm.

[28]The fact that there is no requirement of exclusive possession in these statutes brings licences within their ambit, and thus makes it unnecessary to distinguish between leases and licences for the purposes of residential lettings in many Commonwealth jurisdictions.

[29]Section 1 of the Act sets out a broad remit which includes defining the rights and duties of landlords and tenants of rented premises, providing for the regulation of caravan parks and moveable dwellings, providing for inexpensive and quick resolution of disputes and for a centralised system for the administration of bonds.

[30]Residential Tenancies (Residential Premises) Regulation 1995, Part 5 (NSW, Australia).

[31]A useful example is s 48 of the Residential Tenancies Act 1986 (New Zealand), as amended by s 21 of the Residential Tenancies Amendment Act 1996 (New Zealand), which sets out in detail when and with what notice the landlord may enter the premises.

[32]Eg the Residential Tenancies Act 1997, s 263 (Victoria, Australia) provides that the landlord is able to give notice to the tenant to vacate rented premises without specifying a reason. The notice period must be at least 90 days.

[33]Eg the Residential Tenancies Act 1997, s 266(2) (Victoria, Australia) provides that a no reason notice or a notice terminating a fixed term tenancy before the end of the fixed term is of no effect if it is given in response to the exercise or proposed exercise, by the tenant, of a right under the Act.

[34]Amended by the Residential Tenancies Amendment Act 1996, s 6 (New Zealand).

[35]Tenant Protection Act 1997, s 8 (Ontario, Canada).

[36]A Bradbrook, “Residential Tenancies Law – The Second Stage of Reforms” (1998) 20 Sydney Law Review 402, 414.

[37]Mediation is a process used for dispute resolution whereby an impartial third party acts as a facilitator to help the parties to come to a mutually acceptable, workable and reasonable settlement of the issues in dispute.

[38]See para 4.71 and note 41 below.

[39]M Slatter, “Landlord and Tenant Disputes in New Zealand: Jaw Jaw not War War” (1988) Conv(NS) 89, 94. Cf also H Wilkinson, “Quicker Routes to Justice? Residential Tenancy Tribunals in New South Wales” (1992) Conv (NS) 141-145.

[40]P Skinner, “Judicial Independence and Residential Tenancy Tribunals” (1998) 7 J Judicial Admin (Aust) 130.

[41]The development of the regulation of deposits in the state of Victoria, Australia provides an interesting example. The Residential Tenancies Act 1980 required landlords to lodge bond moneys in a trust account with an approved financial institution. However, in response to concerns about unsatisfactory interest returns on bond moneys, lack of compliance with the legislation and the perception that the landlord and his agent had control of the bond moneys, a new system was established by the Residential Tenancies Act 1997. The Act set up the centralised and streamlined administration of rental bonds by a new independent body called the Residential Tenancies Bond Authority, which is responsible for the collection, investment and refund of bond moneys. Like the 1980 Act, the 1997 Act sets maximum bond limits, sets out the specific circumstances in which the landlord is entitled to retain an amount of bond money and requires the landlord to give the tenant a signed “condition report”, which provides evidence of the state of the premises at the start of the lease. However, the ResidentialTenancies Bond Authority must not pay out an amount of bond money unless the landlord and tenant make a joint application for a refund or in accordance with a determination of the Residential Tenancy Tribunal

[42]See for example the provisions of the Residential Tenancies Act (ACT), above para 4.63.

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