Part VII      

the type I agreement: the security regime

Introduction

                             7.1              We have already stated that at the heart of the reforms we propose there should be created two types of agreement. We propose that the type I agreement will give long-term security of tenure and, broadly, replace the current secure[1] and assured[2] – as opposed to assured shorthold – tenancies. The type II agreement will have much less security of tenure guaranteed by law (though security may be enhanced by the terms of the agreement). This will, broadly, replace the assured shorthold tenancy. We consider, in Part XIV below, how existing residential tenancies might map onto the new scheme.

                             7.2              We have considered, in Part VI above, how the two types of agreement we propose should be created and put into writing. We have also considered the contents of the agreements.

                             7.3              This Part discusses

                             7.4              Two preliminary points should be noted. First, the proposals we make in this part will also broadly apply to the type IIagreement, considered in Part VIII. Second, we deal with the specific issue of possession on the basis of anti social behaviour in Part XIII.

                             7.5              As noted in Part II, a century ago the primary providers of rented accommodation – both long- and short-term – were private landlords. Now the situation is transformed. Long-term rented housing is now primarily provided by local authorities and other social landlords.

                             7.6              One option would have been to create a single social tenancy to cover tenancies provided in the social rented sector. This idea is not new. In 1998, the Chartered Institute of Housing proposed it.[3] It would have had the effect of bringing together tenancies granted by local authorities and registered housing associations which, since the Housing Act 1988, have been governed by different legislative codes. In Scotland, this is what has been done by the creation of the Scottish Secure Tenancy under Part 2 of the Housing (Scotland) Act 2001.

A single long-term agreement

                             7.7              We have thought it desirable to go further. We think it right to create a system that can be used by private as well as social landlords. There are already a number of social landlords who fall outside conventional statutory definitions of registered social landlord because they have not registered with the Housing Corporation. We are also aware of a number of other private landlords who let on a long-term basis. We see no reason for not allowing private and unregistered social landlords to let on the same basis as local authorities and registered social landlords, should they so wish.[4] This would encourage the social inclusion the Government seeks to achieve, by providing type I occupiers with the security necessary for a stable life-style.

                             7.8              Such a proposal would also provide greater flexibility for the future. For example, a local authority – in carrying out its housing functions – might wish to contract for the provision of housing with a private landlord, but on the basis that agreements will be long-term rather than short-term.

                             7.9              One of our underlying principles[5] is that, so far as practicable, both types of agreement should be defined in a way that is landlord-neutral; that is, there should be nothing about their legal characteristics which makes it impossible for them to be used by both social landlords and private landlords. In this we are departing from previous practice which has made the identity of the landlord a key factor in defining the scope of each type of status.[6]

                          7.10              We provisionally propose that there should be created a type I agreement, providing long-term security of tenure. It should be defined adopting the landlord-neutral approach.

                          7.11              Although we propose that the definition of the type I agreement should be landlord-neutral, we recognise that there may be circumstances in which it will be appropriate for use of the type I agreement to be prescribed. This is discussed in Part XI.

                          7.12              Although it may seem to run counter to our aim of trying to ensure that the legal structure for renting housing should be as flexible as possible, we have considered whether the scheme we propose should provide that type I agreements should only be able to be created on a periodic basis. The reason for this is that the very concept of the type I agreement provides security of tenure. A contractual term which specifies a fixed period of tenure only adds unnecessary complexity and indeed could be misleading.

                          7.13              Under the present secure and assured tenancy schemes, it is possible for a landlord to enter into fixed term agreements. However, the provisions for bringing such fixed term tenancies to an end prior to the end of the period of the agreement, and even where there is default on the part of the tenant, are extremely complex.[7] It seems to us that, if retained, these are provisions which we should seek to simplify.

                          7.14              At the same time we wonder how significant they are. We are not aware that landlords who provide lettings with a high degree of statutory security are supplementing this with a high degree of contractual security.

                          7.15              Against this, it may be argued that most landlords who let on type I agreements would not want to let on a fixed term basis and that therefore we should allow the issue to be determined by housing management practice.

                          7.16              We invites views on the question whether type I agreements should only be able to be created on a periodic basis. For the purpose of discussion, we assume that type I agreements will only be available on a periodic basis.

                          7.17              The arguments in relation to type II agreements – where there is very little statutory security of tenure – are quite different. We discuss this in Part VIII.[8]

Court orders for possession: discretionary or mandatory?

                          7.18              Given that the type Iagreementwill be able to be used both by social landlords and by private landlords acting on a similar basis to provide long term agreements,we have considered whether there should be circumstances in which the court should be required to make an order for possession or whether the court should always exercise its discretion before an order for the possession of a home subject to a type I agreement can be made.[9] We note that, under the Housing (Scotland) Act 2001, no mandatory grounds attach to the Scottish secure tenancy.

                          7.19              At present no mandatory grounds for possession attach to local authority secure tenancies.[10] Nor did they to housing association tenancies created prior to 15 January 1989 which, for security of tenure purposes, were treated on a par with local authority tenancies. Eight mandatory grounds attach to assured tenancies.[11]

                          7.20              There are two major arguments against the idea of requiring the courts to order possession of a home subject to a type I agreement without the exercise of their discretion.

                          7.21              First if our argument in Part V about the impact of human rights law is correct,[12] then the scope for public authorities using mandatory grounds has been reduced. Evicting an occupier engages his or her right to respect for the home under Article 8(1) of the European Convention on Human Rights, and will only be justifiable under Article 8(2) if it is proportionate to the legitimate end in view. A public authority must not act in a way that is incompatible with the occupier’s human rights. It must therefore only decide to use the mandatory ground if to do so would be proportionate. The proportionality of the decision will be subject to judicial review. We would expect the courts to extend the existing procedure established in Manchester City Council v Cochrane[13] of an adjournment of the possession proceedings to allow for an application for judicial review.

                          7.22              If an occupier did seek judicial review of the decision to use the mandatory ground, we would expect the process to be at least no quicker than establishing an equivalent discretionary ground. While it is true that not all occupiers against whom the ground was used would be expected to apply for judicial review, those that are well advised would and the practice, if successful, would no doubt become more common over time. We also do not believe it is sensible for a new system to include this sort of complexity and circularity, which would needlessly overload the Administrative Court.

                          7.23              Although the decision in Poplar Housing and Regeneration Community Association v Donoghue[14] leaves open the question of how far registered social landlords are public authorities for the purposes of the Human Rights Act 1998, it may be anticipated that challenges will be made by occupiers of registered social landlords on similar grounds, which, if successful, will further undermine the efficacy of any mandatory basis for seeking possession.

                          7.24              Second, those who are currently secure tenants could object if their tenancies, to which no mandatory ground currently attaches, were – on the enactment of the measures we propose – to be converted to type I agreements which contained circumstances where a court was obliged to order possession without exercising its discretion. Quite apart from its inherent undesirability, there could be a challenge that this amounted to a deprivation of a possession[15] contrary to Article 1 of Protocol 1 to the Convention. The existing Strasbourg jurisprudence, as applied by the UK courts, gives a considerable “margin of appreciation” so as to allow changes to protective legislation that can be clearly justified on social policy grounds. Thus it is far from certain that such a change would be regarded as incompatible with the Human Rights Act 1998. Nevertheless, it is an argument that would have to be clearly anticipated and met.

                          7.25              We accept that one of the fears that landlords have is that judges exercise their discretion inconsistently. We consider this matter further in Part XII where we discuss the powers of the courts. We think that at least some of those fears may be allayed by the creation of a more structured discretion, to be applied when judges come to decide whether or not it is reasonable to order possession against a defaulting occupier.[16]

                          7.26              We provisionally propose that, subject to the discussion on serious rent arrears and mortgage default, below, there should be no circumstances in which a court should be mandatorily required to make an order for possession in relation to a type I agreement.

                          7.27              In the assured tenancy regime, ground 8 is a mandatory ground for possession, whereby the court is obliged to order possession where it is proved that there were at least two month’s arrears of rent,[17] both at the date on which the notice of intended proceedings [18]was served on the occupier and at the date of the hearing itself. It is currently available to housing associations. It has never been available to local authorities.

                          7.28              When housing associations first began to grant assured tenancies, the Housing Corporation included in its “Tenants’ Guarantee” guidance[19] to the effect that associations should not use this ground. We have been told that this guidance has now lapsed, and housing associations have a much greater degree of discretion as to whether or not they will use this ground. Nevertheless we understand that many still do not as a matter of principle use ground 8 and many others do not in practice use ground 8.

                          7.29              The issue we address here is whether, in relation to the type I agreement,the court should be required to order possession on a basis akin to what is currently ground 8.

                          7.30              There are arguments in favour of the court having such a power.

                          7.31              First, notwithstanding our hope that private landlords might wish to use the type I agreement, most would not be willing to do so if it were not mandatory to order possession for serious rent arrears. Such landlords will always have the option of using a type II agreement, where we will be proposing that it would be mandatory for a court to grant a possession order in such circumstances. The type II agreementis flexible enough to allow the landlord to offer the occupier many of the benefits of the type I agreement. In particular, if they wish to provide security over a longer period then they cangrant the agreement on an extended fixed term basis. Indeed we would wish to encourage this.

                          7.32              Second, private investors have increasingly provided finance to the housing association sector in recent years. It has been suggested that the existence of ground 8 may have been one of the factors which has encouraged this. Investors may be reluctant to contemplate measures  – such as the loss of a mandatory basis for possession – which might increase their financial risk or reduce the level of security for the loans they had made. Were this to be the case, this might lead to less investment in social housing.

                          7.33              Third, the process of local authority stock transfer is now moving to the large scale voluntary transfer of inner city housing stock. In some areas, the open market values of the stock is low and insufficient to secure the loan. In such cases, it is the revenue stream which secures the loan. The removal of ground 8 might be thought to increase the level of risk for such transfers and therefore raise the cost of funding.

                          7.34              Fourth, we are aware that the existence of a mandatory ground for eviction for rent arrears would be attractive to some social landlords, particularly when they may be seeking to assess whether an occupier is willing/able to undertake their responsibilities as occupier.

                          7.35              We think that each of the arguments set out above can be answered.

                          7.36              First, to introduce a mandatory basis for possession into the type I agreement would be to undermine its social purpose.[20] To modify it in this way, in order to make it slightly more attractive to the private landlord, would start to reintroduce into our scheme some of the complications of the existing law we are seeking to remove. They will be able to achieve much the same outcome by letting on the basis of fixed term type II agreements, or even by contractually excluding reliance on mandatory possession orders.

                          7.37              In relation to the second point, we have no clear evidence of the extent to which private sector investors have wanted or been able to insist on the availability or use of ground 8, nor evidence of how, in practice, they have seen ground 8 as protecting their investments. We accept that they may think that it is important, but we wonder whether in practice it is as significant as they might claim. We have asked elsewhere for information on the real use of ground 8.[21]

                          7.38              On the third point, we have been told that it is a common feature of large scale voluntary transfers that the new social landlord agrees with the former local authority landlords and occupiers, prior to the transfer, that ground 8 will not be used. Therefore this argument does not appear to carry a great deal of force.

                          7.39              On the fourth point, we accept that there are particular considerations to be taken into account where a landlord is seeking to deal with anti social behaviour. We discuss our proposals on this matter below in Part XIII. However, we do not think that the whole structure of the type I agreement should be dictated by the small – although admittedly very important – number of cases involving anti social behaviour. We think there are other ways of dealing with this issue.

                          7.40              There are two other arguments which must also be taken into account. First, there are already a number of practical problems associated with the operation of the present mandatory ground. District Judges, who deal with the bulk of possession proceedings, tell us that on many occasions the real reason for the accrual of the rent arrears – which triggers the use of ground 8 – is failure in the administration of housing benefit, rather than any unwillingness on the part of the occupier to pay the rent. It seems to us harsh and unjust for the law to provide that possession could be granted mandatorily in cases where the true reason for the default was not the occupier’s but administrative error or inefficiency outside the occupier’s control. This particular difficulty could be solved by an amendment to the ground[22] rather than a complete abandonment of the mandatory basis for possession. However, such a solution would undermine the simplification of the current law we are seeking to achieve. In any event, the introduction of a defence that the arrears were not the fault of the occupier would mean that there would have to be a hearing; it would be unlikely that possession could be obtained any more quickly if a mandatory ground was available than it would be if all the grounds were discretionary.

                          7.41              Further, practitioners tell us that some courts attempt to circumvent the mandatory nature of ground 8 by using their case management powers to avoid giving possession. Because of its unfairness, some judges refuse to hear evidence in these housing benefit problem cases that would compel them to grant possession under ground 8. Therefore, the ground is currently working rather artificially. The removal of this basis for possession from the type I agreement might not have the detrimental impact that defenders of the present legal position might claim.

                          7.42              We find the arguments against the inclusion of a requirement on the courts to order possession akin to ground 8 in the type Iagreement more compelling than the arguments in favour. Without it, type Iagreements will enable landlords to offer occupiers secure long term housing which will be particularly appropriate both for the social rented sector and for private landlords who wish to let on an equivalent long-term basis. Further, the absence of such a ground will not compromise our aim of landlord-neutrality.

                          7.43              Local authorities, housing associations and private landlords would all be able to seek possession orders on the same basis. The default terms in the agreement relating to the payment of rent can be drafted to cover both failure to pay rent lawfully due and persistent failure to pay rent on time.[23] Private landlords who wish to be able to obtain possession against theiroccupiers automatically should be able to use a type IIagreement instead. Indeed there will be circumstances in which it will be appropriate for social landlords to let on the basis of a type II agreement.[24]

                          7.44              We provisionally propose that it is not appropriate that the court should be required to order possession without the exercise of its discretion, even where there are serious arrears of rent,where a home is provided on the basis of atype Iagreement.

                          7.45              The assured tenancy regime also includes a ground 2 which is available where a landlord is defaults on a mortgage. It can only apply where the tenancy was granted after the creation of the mortgage and with the consent of the lender. It is notoriously unclear as to whether it is only available to landlords who were formerly owner-occupiers of the property in question.[25] If this is correct, it limits its usefulness for private landlords and makes it unavailable in its current form to registered social landlords. It is an unusual ground in that it relates to the landlord's default rather than the occupier's. It is there to protect the innocent lender rather than the landlord.

                          7.46              The following points may be noted

                                                        (3)      It might be of value in cases where landlords have purchased property to let under a “buy-to-let” scheme. [26]

The arguments in favour

                          7.47              Ground 2 has the potential benefit of encouraging landlords to ask permission of lenders before letting. It might also encourage the growth of the private rented sector by allowing lenders to feel safe in giving permission without the risk of the value of the security for the loan being depressed by anoccupierwith security of tenure, should the landlord default on the loan.

                          7.48              First, today most landlords who have borrowed money on the security of a mortgage and wish to let will do so on the basis of a type IIagreement instead of a type I. Second, as the ground only applies in the minority of cases where the lender was aware of and approved the letting, there is a strong argument that the lender should not have approved letting on a type Iagreement if it was not confident in the borrower, and should either have refused consent or only consented to a periodic type II letting instead. Third, it therefore seems reasonable to treat this ground as redundant on the basis that it adds nothing to the notice-only basis[27] for possession available in type IIagreements. Fourth, in any event ground 2 seems of little use in practice because a defaulting landlord is hardly likely to spend money on helping the lender to repossess.

                          7.49              We invite views as to whether lenders have found themselves able to take eviction proceedings themselves on ground 2.

                          7.50              We also invite views on whether lenders are in practice insisting on registered social landlords using ground 2, whether any money has been lent on that basis and whether it would cause problems if money was in future not lent to registered social landlords because of abolition of a basis for possession akin to ground 2.

                          7.51              In Scotland, provisions have been made to enable creditors of registered social landlords to take steps to enforce their security on the insolvency of registered social landlords.[28]This seems to us to be a more appropriate way to protect the interest of the lender.

Conclusion

                          7.52              We provisionally propose that it is not appropriate that the court should be required to order possession without the exercise of its discretion where the landlord has defaulted on a mortgage.

                          7.53              We further suggest that consideration should be given to a scheme to enable lenders to enforce their security on the insolvency of a registered social landlord.

                          7.54              Six other mandatory grounds for possession are currently available to landlords under the assured tenancy regime.[29] Ground 1 is available to owner-occupiers; ground 3 is for off-season letting of holiday accommodation;ground 4 is for educational institutions’ vacation lettings. In each of these cases, landlords would be expected to use a type II agreement,possibly for an appropriate fixed term.

                          7.55              Ground 5 deals with accommodation held for letting to ministers of religion. Insofar as the landlord may wish to let – on presumably a relatively short-term basis to a non-minister – pending the arrival of a minister, we think that landlords should use a type II agreement. Insofar as the accommodation has been let to a minister and the landlord seeks to remove that person in order to accommodate a new minister, we think this should be treated in the same way as other forms of tied or employment-related accommodation, if necessary with a provision deeming ministers to be employees for this purpose. A type II agreement (or an agreement excluded altogether from the scheme) will be appropriate here.[30]

                          7.56              Ground 6 is a complex ground enabling possession to be ordered where major reconstruction is contemplated. Where, at the start of a letting, a landlord can foresee a definite need for such work we would regard use of the type IIagreement as more appropriate than type I. Where such need is not foreseen, our view is that social and private landlords who have grantedtype Iagreements of property that is now in need of major renovation, development or improvement, should use the equivalent of the estate management grounds for possession we propose below.[31] Although this would be discretionary rather than mandatory, we think that in practice there is likely to be little difference in outcome, particular if our proposals for structured discretion[32] are accepted.

                          7.57              Ground 7 covers a tenancy which has devolved under a will or intestacy (where the right of succession does not apply). While we do not think this is an issue that arises all that frequently in practice,[33] nevertheless it is an issue we have to deal with. However, we think that the sensible place to consider this is in our review of the law on the right of succession.[34] We therefore make no recommendations here, beyond expressing a hope that a solution can be found which does not involve requiring a court to order possession without the exercise of discretion. We will return to this issue in the consultation paper on succession and the transmission of agreements.

Security of tenure: the terms in the agreement

                          7.58              We have proposed that all the circumstances in which the landlord will be entitled to go to court to obtain an order for possession should be set out in Part B (compulsory terms) of the agreement. Here we consider in more detail the scope and content of these terms.

                          7.59              Currently grounds for possession can be categorised under three broad headings:

                          7.60              Under our proposed scheme, the first of the circumstances in which the landlord will be entitled to seek an order for possession will be that the occupier has breached any term of the agreement which imposes an obligation on the him or her. Examples will include failing to pay the rent, or using the premises for illegal or immoral purposes.

                          7.61              It will be important to ensure that each relevant term of the contract is drafted to provide that, where appropriate, it covers not only actions by the occupiers themselves, but also actions by members of their household and indeed by visitors to the home.

                          7.62              In relation to rent arrears, the present assured tenancy regime has three grounds of possession available. We think these should be amalgamated into a single term of the contract which would provide that rent should not only be paid, but paid on time; thus persistent delay in paying would be a circumstance in which the landlord could take proceedings.

                          7.63              Putting all these terms in the agreement has the advantage that each party should know from the start of the agreement what the occupier’s obligations are, breach of which can lead to proceedings for possession being taken. While not all occupiers may fully understand the terms of their agreement, we think that there will be a better chance of understanding them than exists under the complex mix of contract and statute law which currently regulates the housing relationship. It should also help advisers.

                          7.64              This approach may appear novel. But it should be remembered that, even under the present law, breach of any term of the contract can be the basis for a landlord taking possession proceedings.[35]

                          7.65              As discussed in Part VI, terms in agreements that contravene the Unfair Terms in Consumer Contracts Regulations 1999 will not be enforceable, whether by possession proceedings or otherwise.[36] Terms which sought to prevent trivial activities by occupiersmight be unfair on that basis alone.[37] Landlords wishing to impose obligations on occupiers which are not contained in the prescribed list of default terms, which will be Regulations compliant, will have to be confident that those terms do not fall foul of the Regulations.

                          7.66              We provisionally propose that breach of the agreement by the occupier should be the first of the circumstances in which the landlord may take possession proceedings.

                          7.67              In addition to direct breach of the agreement, there are other circumstances, based in social policy, where the landlord should be able to take possession proceedings. Based on the current law, we have three sets of circumstances in mind:

                          7.68              Our general approach is that, as with breaches of the terms of the agreement, the other circumstances in which the landlord may be entitled to take proceedings for possession of his or her property should also be contained within the agreement.

                          7.69              We discuss this is detail in Part XIII.

                          7.70              The Housing Act 1996 amended both the secure and assured tenancy regimes to provide[38] that where a dwelling was occupied by a married couple or a couple living together as husband and wife, and one (usually the woman) was driven from the accommodation as the result of the violence of the other (usually the man) who was also the (sole) tenant, it should be possible to seek an order for possession against the violent (tenant) partner.

                          7.71              The ground only applies where the victim is unlikely to return to the property. It cannot be used to grant a new agreement to the victim. It will therefore be of more use to the landlord who finds the man left living in accommodation designed for family use, while the woman has tobe re-housed as homeless, creating an inefficient use of housing resources.

                          7.72              We seek information on whether this ground is used in practice, whether it is seen as useful and what drawbacks are associated with it.

                          7.73              If it is to be retained, then even though private landlords may well not wish to get involved in attempting to tackle domestic disputes, it is our preliminary view that the limitation of this ground to registered social landlords, charitable housing trusts and local authorities is not necessary. Rather it should be made generally available.

                          7.74              We provisionally propose that there should be a provision in the agreement stating that proceedings may be taken against an occupier whose violence has driven his or her spouse or partner from the home.

                          7.75              Under both the secure tenancy regime,[39]and, more recently, the assured tenancy regime,[40] it is possible to take proceedings against a tenant who has obtained a home by making false statements. Since many social landlords provide housing for specific groups, and since local housing authorities also have to ensure that their allocation of housing is done on a fair basis,[41] we think it is necessary to retain this as a basis for seeking possession of a type I agreement.

                          7.76              We provisionally propose that the agreement should contain a provision which enables landlords to seek repossession where they can prove that the agreement was obtained on the basis of false information.

                          7.77              We accept the proposition that the rules on security of tenure should not be so drafted that landlords are prevented from making reasonable changes to use of their buildings and the allocation of housing resources. To do so would result in an unacceptable rigidity in the operation of the housing market.

                          7.78              At present there is a marked difference as between the assured tenancy and secure tenancy schemes on this issue.

                          7.79              In relation to assured tenancies there is the very general, suitable alternative accommodation ground 9,[42] supplemented by the very complex, mandatory ground 6, relating to the redevelopment of premises. In the case of secure tenancies, there are nine separate grounds where either possession will be granted if suitable alternative accommodation is available, or may be granted if suitable alternative accommodation is available and it is reasonable for the court to make the order.[43]

                          7.80              Examples include: where the accommodation is statutorily overcrowded; where the landlord intends to redevelop or substantially refurbish; where the landlord is a charity and the continued occupation by the occupier would be in breach of the objects of the charity; [44] wherethe home is designed for use by the disabled and the present occupier is not disabled orwhere the home house is part of a sheltered housing scheme and there is no occupier with special needs.

                          7.81              We provisionally propose that the agreement should contain a provision which would enable landlords to seek possession on estate management grounds where this would be reasonable.

                          7.82              We invite views on whether the provision should be a broadly drafted term, modelled on the suitable alternative accommodation ground; or whether the circumstances in which possession could be ordered should be more precisely defined, as in the secure tenancy scheme.

                          7.83              Our preliminary view is that the latter approach may be clearer to occupiers. It may also be clearer to landlords who will know the circumstances when they might be able to seek possession for estate management reasons. On the other hand, listing a number of detailed examples may mean that the unpredictable situation is not addressed and this might bring unnecessary rigidity to the use and development of housing stock.

                          7.84              In addition to the agreement setting out the circumstances in which the landlord may seek possession, we are also of the view that it should provide a summary of what powers the court has in relation to proceedings for possession. We discuss the powers of the court in relation to possession proceedings in Part XII.

                          7.85              In relation to the type I agreement, we think the agreement should make clear

                          7.86              We provisionally propose that the agreement should contain a statement about the powers of the court and the steps the occupier should take when threatened with possession proceedings.

                          7.87              General housing law provides for a number of other circumstances which have the effect of terminating assured and Rent Act tenancies, effectively providing more grounds for possession. We refer to provisions in the Housing Act 1985 which disapply the protections of the Housing Act 1988.[45] These are sometimes generically referred to as the “ghost grounds for possession”.

                          7.88              The circumstances are

                                                        (1)      where an undertaking not to use a dwelling for human habitation has been entered into;[46]

                                                        (2)      where a demolition order has been made;[47]

                                                        (3)      where a closing order has been made; [48]

                                                        (4)      where special occupancy directions relating to a housing in multiple occupation are in force;[49] and

                                                        (5)      where a home has been acquired by a local highway authority for development and is held for that purpose, and the Secretary of State certifies that possession is required immediately.[50]

                          7.89              There are also means of gaining possession of homes that are statutorily overcrowded. Under the secure tenancy scheme, overcrowding is a discretionary ground for possession where the landlord must provide suitable alternative accommodation.[51] Under the former Rent Act scheme landlords were given a special statutory right to bring possession proceedings.[52] The assured tenancy scheme has no special provisions. In addition, the local authority can bring proceedings for possession.[53]

                          7.90              In one sense these grounds for possession could be seen as further examples of the social policy circumstances, mentioned above, which might justify the landlord bringing proceedings for possession. On the other hand – with the exception of the overcrowding ground, where breach of the overcrowding rules will usually be the result of the occupier allowing more than the statutorily permitted number of person to reside in the premises – it could be argued that enforcement of the orders or undertakings should be undertaken directly by the relevant enforcement agency, rather than indirectly by the landlord.

                          7.91              We provisionally propose that Part C of the agreement (the default terms) should contain a term prohibiting overcrowding, breach of which would be a basis for the landlord taking proceedings for possession in the normal way.

                          7.92              We provisionally propose that enforcement of housing orders and undertakings should be undertaken directly by the authorities that made the orders or accepted the undertakings, not by the landlord.

                          7.93              If consultees are against this provisional proposal, we ask whether the possibility of action being brought against an occupier in any of these circumstances should be stated  in the agreement.

                          7.94              We are aware that there are various other enforcement powers which allow agreements to be terminated and might fall outside our new scheme.[54]

                          7.95              We invite views as to whether these are of enough significance in practice (particularly to the relevant enforcement agencies) to be worth bringing into the type I agreement scheme, along the lines suggested above.

                          7.96              One of the principal objectives of our project is to create a scheme which will not only apply to new agreements but also be able to absorb existing agreements. It should be clear from the discussion in this part that our proposals have evolved from the present law. We discuss further in Part XIV how existing agreements might map on to our proposed scheme, and indicate the transitional provisions that might be needed to achieve this.

                          7.97              The new type I agreement will be available to any landlords who wish to let on a long-term secure basis. We anticipate that it will primarily be used by social landlords.

                          7.98              It will be created on a periodic basis.

                          7.99              The landlord will be entitled to seek a discretionary order of possession

                      7.100              There will be no circumstances in which it will mandatory for a court to grant a possession order.