Part IX
Summary of provisional proposals and consultation
questions
In this Part, we list
our provisional proposals and conclusions, and set out the other issues on
which we seek consultees views. More generally, we invite comment on any of the
matters raised in this paper and any other suggestions that consultees may wish
to put forward. For the purposes of analysing theresponses, it would
be helpful if, as far as possible, reference could be made to the numbers of
paragraphs in this part.
Part
I: Introduction
Regulatory impact
1.
We ask for information about the regulatory impact of our
provisional proposals in this paper (paragraph 1.35).
Part II:
Obtaining consent
The structure of consent requirements
2.
We provisionally propose that three standard possibilities should
be recognised:
(1)
nNo
requirement for consent;
(2)
a requirement that the landlord gives consent, which can only
be withheld on reasonable grounds; and
(3)
a landlord’s veto.
These will be
contained in the occupation agreement as appropriate (paragraph 2.24).
3.
We further provisionally propose that the relevant term in the
agreement should provide that any request for consent should be made in writing
and that proof of service, for example by recorded delivery, should be obtained
(paragraph 2.25).
Withholding consent: reasonableness in consent requirements
4.
We provisionally propose that what is meant by “reasonable”
should not, in general, be statutorily defined (paragraph 2.32).
5.
We invite views on whether the discretion of the court to
determine reasonableness in this context should be statutorily structured, and
if so what factors should be taken into account (paragraph 2.33).
Failure by the landlord to respond
6.
We provisionally propose that it should be a compulsory term
in the agreement that where a a person , whose
consent to a transaction is required , failss
to respond within a given period to a request for consent, this should
be regarded as an unreasonable refusal of consent, so that the requisite
consent should be deemed to have been given (paragraph 2.38).
7.
We invite views on what that appropriate period should be
(paragraph 2.39).
Provision of reasons for refusal
8.
We provisionally propose that where a
landlords think they have reasonable
grounds to refuse consent, they should be required to inform the occupier of
the reasons why consent was refused (paragraph 2.41).
9.
We invite views on whether the landlord should be required to
provide a written statement of reasons,
and, if so, whether this should be a
universal requirement to apply in all cases or one that only arises where the
occupier asks for it (paragraph 2.42).
10.
We invite views on the sanction that should be applied to the
landlord who fails to provide a written statement of reasons, following a
request – properly made – so to do (paragraph 2.44).
Effect of transactions where necessary consents have not been obtained
11.
We provisionally propose that the occupation agreement should
make clear that any transaction carried out by the occupier, which was either
contrary to the landlord’s veto or subject to consent which has been reasonably
withheld, will expose the occupier to the possibility of possession proceedings
for breach of the occupation agreement, and will not bind the landlord
(paragraph 2.48).
When should receipt of rent count as creation of
a new agreement by the landlord?
12.
We provisionally propose that after a prescribed maximum
period during which the landlord should be able to take such payments without
starting possession proceedings, a fresh agreement, covered by our new scheme,
should be taken to have been created if, after termination of the original
agreement, the landlord accepts payments from an unlawful occupier in return
for delaying, or not taking, possession action against them as trespassers
(paragraph 2.64).
13.
We invite views on whether there should be a prescribed
maximum period of time during which the landlord should be able to take such
payments, without starting possession proceedings, and without being taken to
have created a new agreement. Alternatively should it be left as a matter of
fact to be determined by the court whether the landlord has agreed to refrain
from or delay possession action in return for the payments (paragraph 2.65)?
14.
We provisionally propose that, if there is to be general
requirement on social landlords to use type I agreements, one of the
exceptional circumstances justifying use of a type II agreement would be where
the landlord wished to make a temporary arrangement with a new occupier who has
been granted the right to occupy without the landlord’s consent or in breach of
a landlord’s veto (paragraph 2.67).
Part III:
Co-occupation agreements
Joint occupation agreements – creation
15.
We provisionally propose that there should be no limit to the
number of people to whom joint rights of occupation may be granted, subject to
the overall limit imposed by the laws against over-crowding (paragraph 3.17).
Joint occupation agreements – liability
16.
We provisionally propose that, where an occupation agreement
is entered into by more than one occupier, there should be a default term that
liability of the occupiers under that agreement should be on the joint and
several basis (paragraph 3.28).
New joint occupiers entering the agreement
17.
We provisionally propose that there should be a compulsory
term in the agreement that an occupier should be able to apply to the landlord
for permission to have someone else brought into the agreement as a new joint
occupier. The landlord should be able to refuse consent unless it is
unreasonable to do so (paragraph 3.40).
18.
In this context, the assessment of reasonableness should take
account of all relevant circumstances including in particular any prejudice to
the landlord that might arise if the new person ended up as sole occupier
(paragraph 3.41).
19.
It should also take account of the numbers that would reside
in the premises and the landlord’s interest in retaining control over those
numbers (paragraph 3.42).
20.
We invite views on whether the right to apply for a joint
occupation agreement should be limited to particular categories of people. If
so, we invite views on what those categories should be (paragraph 3.43).
21.
We invite views on whether the provisional proposal should be
limited to type I agreements only, or should apply to all agreements falling
within our proposed scheme (paragraph 3.44).
22.
We provisionally propose that where the occupier regards the
refusal of consent as unreasonable, he or she should have the right to apply to
the county court for a determination of the matter (paragraph 3.47).
23.
We further provisionally propose that, in appropriate cases
where the landlord was held to have been unreasonable, the court should have
the power to add a new occupier to the agreement (paragraph 3.48).
24.
We invite views on whether the court should have any wider
power to vary the terms of the agreement (paragraph 3.49).
Joint occupiers seeking to withdraw from the agreement
Type I agreements
25.
We provisionally propose that a joint occupier under a type I
agreement should be able to terminate his or her interest in the agreement by
written notice to the landlord without this bringing the whole agreement to an
end (paragraph 3.82).
26.
We further provisionally propose that a copy of the notice
should be served on the remaining occupiers (paragraph 3.83).
27.
We invite views as to whether the copy should be served by the
occupier seeking to withdraw from the premises, or by the landlord (paragraph
3.84).
28.
We invite views on whether, following the departure of one or
more joint occupier or occupiers, the landlord of a type I tenancy should be
able to seek repossession of the home, subject to reasonableness and the
provision of suitable alternative accommodation, if the home is no longer
suitable for occupation by the remaining occupier or joint occupiers (paragraph
3.85).
29.
If there is to be a special ground of possession, we also
invite views on whether the landlord should be required to make use of it
within any defined time limit. If so, what should the time limit be? Should
there be a period before which the landlord should not be able to take
proceedings, to enable the remaining occupiers find a lodger or a replacement
joint occupier (paragraph 3.86)?
Type II periodic agreements
30.
We provisionally propose that a joint occupier under a type II
agreement, should be able by written notice to the landlord to determine his or
her interest in the agreement without this bringing the whole agreement to an
end (paragraph 3.92).
Type II fixed term agreements
31.
We provisionally propose that it should be a default term of
fixed term type II agreements with a break clause that where one of a number of
joint occupiers exercises the break clause, it will have the effect of only
terminating his or her rights under the agreement and will not bring the entire
agreement to an end. The remaining occupiers will be entitled to remain in
occupation, having assumed all the rights and obligations under the agreement
(paragraph 3.100).
Informal withdrawal of occupier
32.
We provisionally propose that the procedure whereby a landlord
may seek to terminate an occupation agreement, where it appears that the premises
have been abandoned, should also apply where a joint occupier has abandoned the
premises. If the first notice produces no response, the landlord should be
required to serve a second notice giving the occupier another eight weeks in
which to apply to court to challenge the finding of abandonment (paragraph
3.106).
33.
We provisionally propose that, when the landlord intends to
use the abandonment procedure against a joint occupier who has withdrawn from
the premises, the landlord should also notify the other joint occupiers of this
intention (paragraph 3.109).
34.
We further provisionally propose that where a landlord has
used the proposed abandonment procedure against a departed occupier, the
remaining joint occupiers would continue to be jointly and severally bound by
the agreement in the same way as if the removed occupier had given notice under
a notice clause (paragraph 3.110).
35.
We provisionally propose that, where there is a response from
the departed joint occupier to the initial notice, which is equivocal as to
whether the occupier has or has not abandoned, there should be a procedure to
enable the landlord to obtain an declaration from the court. If satisfied that
the occupier has demonstrated an intention no longer to accept being bound by
the agreement, the court should declare that the agreement has terminated in
respect of that occupier (paragraph 3.112).
Non-contractual arrangements
Possession proceedings – proposals for protection
36.
We provisionally propose that our new scheme should include
rights for non-contracting occupiers to be notified of any possession
proceedings (paragraph 3.120).
37.
We invite views on whether the procedure for so doing should
be modelled on the rights of “qualifying occupiers” in the Housing (Scotland)
Act 2001, sections 14 and 15, or to the provisions relating to mortgage
possession hearings in the Civil Procedure Rules 1998 (paragraph 3.121).
38.
We further invite views as to whether the people who must be
notified should also have a right to be joined as defendants, or should only be
able to do so at the court’s discretion (paragraph 3.122).
39.
We further invite views as to whether these notice
requirements should attach to all discretionary possession proceedings or only
those which arise from type I agreements (paragraph 3.123).
Restricting the landlord’s powers to regulate
non-contractual occupiers?
40.
We invite views as to whether there are – currently or
potentially – significant problems arising from attempts by landlords to
regulate those who may live with the occupier on a non-contracting basis
(paragraph 3.127).
41.
We provisionally propose that the occupation agreement should
contain a default term which allowed the occupier the freedom to control who
would occupy the premises on a non-contractual basis, with any departures from
the default being regulated under the Unfair Terms in Consumer Contracts
Regulations 1999 (paragraph 3.131).
Amending the Family Law Act 1996
42.
We provisionally propose that Family Law Act 1996, section 30
be amended to refer to occupiers under our new scheme (paragraph 3.133).
43.
We provisionally propose that, in relation to cases where the
occupier obtains an adjournment, stay, suspension or postponement of a
possession order, a partner’s matrimonial home rights to occupy and tender rent
should be preserved until the possession order is enforced (paragraph 3.136).
44.
We further provisionally propose that the current law should
be expanded so that those with matrimonial home rights are given the right to
be joined to possession proceedings with the same rights as the occupier to
defend themselves against the making of a possession order and to apply after a
possession order for any adjournment, stay, suspension or postponement
(paragraph 3.137).
Part IV: The
right to take in lodgers
Type I agreements
45.
We provisionally propose that the right of a person to take in
a lodger should be extended to all those with type I agreements, by means of a
compulsory term to that effect (paragraph 4.5).
46.
We provisionally propose that there should be a statutory
definition of “lodger” for the purposes of the right to take in lodgers
47.
We further provisionally propose that “lodger” should be
defined as a person who occupies premises where there is a resident landlord
who shares accommodation with the lodger, irrespective of whether the person
does so under a tenancy or a licence (paragraph 4.18).
48.
We invite views on whether the unprotected status of an
occupier as a “lodger” should continue, even where the resident landlord no
longer actually shares the accommodation with the lodger but retains the
contractual right to do so (paragraph 4.19).
49.
We provisionally propose that the right to take in a lodger
should be exercisable without a consent requirement, as at present (paragraph
4.28).
Application to type II agreements
50.
We invite views on whether or not occupiers under a type II
agreement should also have the right to take in a lodger (paragraph 4.35).
51.
If the answer to the question is yes, we also invite views
whether the right should be an absolute one, or one that can only be exercised
with the consent of the landlord (paragraph 4.36).
Should lodgers have a written agreement?
52.
We provisionally propose that there be no requirement for the
provision of a written agreement between a lodger and his or her resident
landlord (paragraph 4.41).
The effect of a lodger on the head landlord
53.
We provisionally propose that, on termination of an agreement
covered by our new scheme, the head landlord should not be bound by any lodging
agreement entered into by the former occupier, irrespective of whether that
lodging agreement amounted to a tenancy or a licence (paragraph 4.46).
Part V:
Sub-occupation agreements
Our approach
54.
We provisionally propose that the issue of whether or not an
occupier should be able to enter a sub-occupation agreement of the premises
should be determined by a term in the original agreement (paragraph 5.10).
Type I agreements
55.
We provisionally propose that there should be a compulsory
term in the type I agreement that the occupier may enter a sub-occupation
agreement of part of the premises, subject to the consent of the landlord,
which may not be unreasonably withheld. This right would not however be
available where the occupier would have to cease to occupy the property as a
home in order to grant the sub-occupation agreement (paragraph 5.18).
56.
We provisionally propose that it should be a default term in
the model type I agreement that there be a landlord’s veto on the granting of a
sub-occupation agreement which would involve the occupier moving out of the
whole of the premises (paragraph 5.28).
Type II agreements
57.
We provisionally propose that the principles relating to
sub-occupation agreements under type I agreements should apply equally to type
II agreements (paragraph 5.33).
The type and content of the sub-occupation agreement
58.
We provisionally propose that the model agreements contain a
default term which provides that any sub-occupation agreement should be a type
II periodic agreement (paragraph 5.46).
59.
We provisionally propose that landlords, on giving their
consent to the creation of a sub-occupation agreement should be able to impose
reasonable conditions as to the type or terms of the sub-agreement (paragraph
5.55).
60.
We further provisionally propose that breach of these
conditions should not invalidate the consent, but that any sub-occupation
agreement created without compliance with such conditions should be deemed to
be a type II periodic agreement (paragraph 5.56).
61.
We provisionally propose that, where a sub-occupation
agreement has been properly entered into, the same rules and sanctions relating
to the provision of a written copy of the agreement by the occupier to the
sub-occupier should apply as they apply to the original agreement (paragraph
5.58).
The effect on head landlords of authorised sub-occupation agreements
62.
We provisionally propose that, as between the landlord and the
sub- occupier, the question of what type of agreement the landlord should be
bound by should be determined by the type of agreement created by the original
occupier with the sub-occupier (paragraph 5.65).
63.
We further provisionally propose that if the landlord has
given consent, or has included a term in the agreement allowing sub-occupation
agreements to be made without consent (replacing the default term), then on the
termination of the original agreement:
(1)
The landlord should be bound by the sub-occupation agreement
if the original occupier terminated the agreement by giving notice to quit or
by exercising a break clause or surrendering. The sub-occupier should step into
the shoes of the original occupier but only under the terms of the
sub-agreement.
(2)
If the landlord brings proceedings for possession against the
original occupier or if the landlord used the abandonment procedure, then the
landlord should have to serve notice on the sub-occupier (at the premises), who
should be entitled to be joined in the action. The sub-occupier should be
entitled to seek an order of the court converting the sub-occupier into a
direct occupier of the landlord, but, again, on the terms of the sub-agreement.
The court should do so unless it would have granted possession against this
person if they had already been the occupier (paragraph 5.66).
64.
We provisionally propose that the new direct landlord should
not take the benefit or burden of any breaches of the agreement which occurred
before the change of landlord (paragraph 5.72).
65.
We thus provisionally propose that the liability of the new
direct landlord to the former sub-occupier should be limited to breaches of the
agreement occurring after the date on which the new direct landlord became the
new direct landlord. Any claims for breach of the sub-occupation agreement
occurring before that date should be pursued by the former sub-occupier against
the former occupier (paragraph 5.73).
66.
We further provisionally propose that the liability of the
former sub-occupier to the new direct landlord should be limited to breaches of
the agreement occurring after the new direct landlord became the new direct
landlord. Where a breach of the sub-occupation agreement occurred before the
new direct landlord became the new direct landlord, the former sub-occupier
should remain liable to the former occupier (paragraph 5.74).
Part VI:
Transferring rights of occupation Transfers
Transfers
67.
We provisionally propose that any restrictions on the ability
of occupiers to transfer the whole of their rights of occupation should be by
way of a term in the occupation agreement (paragraph 6.6).
68.
We provisionally propose that occupation agreements
should contain, as a default term, a provision stating that there is a landlord’s
veto against the transfer of the right to occupy by the occupier to a third
party (paragraph 6.10).
69.
We provisionally propose that the rights of Rent Act statutory
tenants to agree with their landlord to transfer their statutory tenancy should
be preserved (paragraph 6.13).
Special cases
A right to transfer by mutual exchange
70.
We provisionally propose that it should be a compulsory term
in any type I agreement granted by a social landlord that the occupier should
have the right to exchange his or her right of occupation with another occupier
granted a type I agreement by a social landlord. The right to exchange would be
subject to consent being given by the landlords affected (paragraph 6.13).
71.
We provisionally propose that it should be a compulsory term in
any type I agreement granted by a social landlord that the occupier should have
the right to exchange his or her right of occupation with another occupier
granted a type I agreement by a social landlord. The right to exchange would be
subject to consent being given by the landlords affected (paragraph 6.19).
72.
We invite views on the following questions:
(1)
Should private landlords be required to make any provision for
a right of mutual exchange in any type I agreement they may enter into?
(2)
If the answer is yes, should this be by way of a compulsory
term, or a default term?
(3)
Would private landlords who might otherwise consider using
type I agreements be deterred from doing so by the existence of a right of
mutual exchange?
(4)
Would the interests of social landlords be prejudiced if
mutual exchanges led to their receiving type I agreement occupiers from private
landlords who had never been through the allocations procedure of any social
landlord (paragraph 6.26)?
73.
We provisionally propose that such a clause should not be a
compulsory term in any type II agreement (paragraph 6.28).
74.
We provisionally propose that the right to exchange should be
subject to the landlord’s consent (paragraph 6.35).
75.
We invite views as to whether the new scheme should reproduce
the current requirements as to the landlord’s consent to mutual exchange in
Housing Act 1985, section 92 and Schedule 3, or whether instead a simpler, more
clearly time-limited procedure should be adopted (paragraph 6.36).
76.
We ask whether, in the alternative, the same criteria of
general reasonableness should be adopted as we are suggesting in other cases
where consent is required, based on Landlord and Tenant Act 1927, section 19
and the Landlord and Tenant Act 1988 (paragraph 6.37).
77.
We invite views as to whether the current requirement for the
existence of a complete chain of exchanges should be retained, or whether it
should be able to be waived by the landlords concerned (paragraph 6.41).
Transfers to potential successors
78.
We provisionally propose that type I agreements should contain
a compulsory term allowing for the occupier to transfer his or her rights to a
potential successor, subject to the landlord’s consent (paragraph 6.47).
79.
We provisionally propose that there should be a default term
in the type II agreement giving the landlord a veto over the assignment of the
agreement (paragraph 6.51).
80.
We provisionally propose that it should be possible for the
transfer to a potential successor to lead (subject to any terms in the
contract) to the transfer to joint successors (paragraph 6.56).
Transfer by order of family courts
81.
We invite views on whether Matrimonial Causes Act 1973,
section 24, and Children Act 1989, Schedule 1, paragraph 1(2)(d) to (e) should
be amended so that they apply to all occupation agreements falling within the
scope of our new scheme, irrespective of whether they would otherwise be
regarded as creating a property interest (paragraph 6.65).
82.
We provisionally propose that the Family Law Act 1996 Schedule
7 should be amended to refer to any agreement covered by our new scheme
(paragraph 6.70).
83.
We provisionally propose that the model agreements under our
new scheme should contain a compulsory term allowing agreements to be
transferred by order of the court made under the Family Law Act 1996 Schedule 7
(paragraph 6.71).
Effects of the transfer of the right to occupy to another
Consent
84.
We provisionally propose that a transfer should not take
effect until after any necessary consent has been given by the landlord
(paragraph 6.74).
Method of transfer
85.
We provisionally propose that any transfer should take effect
from the moment at which the intention of the transferor and transferee is
confirmed either in writing, or by the transferor giving up occupation to the
transferee, or by the first instalment of rent which is paid to the landlord by
the transferee and not by the transferor (paragraph 6.77).
Formalities
86.
We provisionally propose that the landlord should be required
to serve on the transferee a written copy of the agreement, amended to show the
change of occupier, within two weeks of the transfer. The same sanctions for
failure to comply should be available as would be apply for failure to give a
copy of the written agreement to the original occupier at the start of the
agreement (paragraph 6.81).
The position of the parties after a transfer
87.
We provisionally propose that the effect of a transfer to
which the landlord has given consent should be to vest the rights and
liabilities under the occupation agreement in the transferee. Thus the original
occupier would be replaced by the new occupier as the party to the agreement
with the landlord. The transfer should not of itself confer on the transferee
any rights or liabilities relating to any time before the transfer took place.
The former occupier should cease to have rights and liabilities for any events
occurring after the transfer (paragraph 6.100).
The relationship between sub-occupation agreements and transfers
88.
We provisionally propose that where a sub-occupation agreement
has been lawfully created out of a head agreement which is also covered by our
new scheme, and the landlord (where consent is needed), the occupier and the
sub-occupier have all intended to create a sub-agreement rather than a
transfer, then the sub-occupation agreement should take effect as such and
should not be deemed to be a transfer even if it is for the whole of the
remaining term of the head agreement (paragraph 6.112).
Part VII: The
effects of the death of an occupier
The effect of the death of the occupier on the agreement
Joint occupation agreements: the principle of survivorship
89.
We provisionally propose that on the death of a joint
occupier, the remaining occupier(s) should take over the occupation agreement
(paragraph 7.9).
90.
We provisionally propose that survivorship by joint occupiers
should take priority over the right of succession under other statutory rules.
The statutory succession rules should only take effect on the death of a sole
occupier, including the death of the last of any joint occupiers (paragraph
7.11).
91.
We provisionally propose that the principle of survivorship
should apply irrespective of the number of joint occupiers living in the
premises at the date of the death of the occupier (paragraph 7.15).
Termination of the agreement: periodic agreements
92.
We provisionally propose that there should be a compulsory
term in type I and periodic type II agreements that, if the agreement does not
pass to a joint occupier or to another person under the statutory rules on
succession, the agreement should terminate automatically and without the need
for a court order (paragraph 7.18).
93.
We provisionally propose that there should be a default term
which specifies the moment, after death of the occupier, at which the agreement
terminates (paragraph 7.28).
94.
We invite views as to whether that default term should provide
that the agreement terminates immediately on death, or at the point at which
the landlord does or should reasonably have become aware of the death
(paragraph 7.29).
95.
We invite views as to whether such provisions would cause
problems where housing benefit is paid direct to the landlord, and whether any
such problems should be dealt with by changes to the housing benefit system
rather than to the law on relations between landlords and occupiers (paragraph
7.30).
Termination of the agreement: fixed-term agreements
96.
We provisionally propose that fixed term type II agreements
should contain a default term providing that the agreement terminates on the
death of the occupier. The statute should provide that the parties can exclude
the statutory rules on succession, but only where they have replaced this
default term with a term allowing for the remaining period of the agreement to
pass to another under the occupier’s will (paragraph 7.39).
97.
We provisionally propose that fixed term occupation agreements
that are licences not tenancies should only be capable of being transferred, on
the death of the occupier, under the statutory right of succession (paragraph
7.41).
A statutory right of succession
98.
We provisionally propose that a statutory right of succession
should be part of the proposed new scheme for the regulation of all the
occupation agreements falling within the scope of our proposed scheme
(paragraph 7.45).
99.
We further provisionally propose that, save for special
arrangements made in relation to fixed-term agreements, and cases where the
principle of survivorship applies, the only means whereby the benefit of an
occupation agreement can be passed on following the death of the occupier
should be though the right of succession (paragraph 7.47).
Who should have the right to succeed?
100.
We provisionally propose that a surviving spouse should have
the right to succeed. “Spouse” should be defined to include the survivor of
couples who have lived together as husband and wife, or of same sex couples who
have co-habited. We provisionally propose that these principles should apply
whether or not either partner has undergone gender re-assignment. Any spouse
should have been living in the premises as his or her only or principal home at
the time of the death (paragraph 7.59).
101.
We further provisionally propose that a list of those
potentially entitled to succeed should be set out in the legislation, which
would then be capable of being set out in the agreement (paragraph 7.62).
102.
We invite views on the categories that should be included in
the list (paragraph 7.63).
103.
We provisionally propose that a member of the family who
wishes to exercise a right to succeed should have resided in the premises as
his or her only or principal home before the occupier died (paragraph 7.65).
104.
We invite views on what the period of occupation should be
(paragraph 7.66).
105.
We invite views on the question whether the right to succeed
should be specifically extended to carers, on a basis similar to that set out
in the Housing (Scotland) Act 2001 (paragraph 7.68).
106.
We provisionally propose that the rights of succession
currently available to Rent Act protected tenants are preserved for that group
(paragraph 7.70).
How many successions should be permitted?
107.
We provisionally propose that a surviving spouse should have
the automatic right to succeed to a deceased occupier who was not him or
herself a successor (paragraph 7.78).
108.
We further provisionally propose that, after succession by a
spouse, there should be a further right to succeed by another member of the
family of either the original deceased occupier or the successor occupier. The
spouse of the successor occupier would be included in this category (paragraph
7.79).
What counts as a use of succession rights?
109.
We provisionally propose that where a person succeeds to an
occupation agreement through the operation of the principle of survivorship,
this should not count as the use of the statutory right of succession
(paragraph 7.85).
110.
We similarly propose that where a person succeeds by will or
on intestacy to a fixed-term occupation agreement, this should not count as the
use of the statutory right of succession (paragraph 7.86).
111.
We further propose that the exercise of any analogous
contractual rights of succession should be regarded as the use of the statutory
right of succession (paragraph 7.87).
When can the status of successor be lost?
112.
We provisionally propose that, so long as the successor
remains in the same premises under the same or a different landlord, or
acquires an occupation agreement by exercise of the right of mutual exchange,
that person should retain the status of successor (paragraph 7.93).
113.
We further provisionally propose that if that occupation
agreement were terminated, and a wholly new agreement relating to different
premises was made, whether by the same or a different landlord, the occupier
should enter this agreement not as a successor (paragraph 7.94).
114.
We propose that where a landlord grants an agreement to
another under the mistaken belief that the occupier was entitled to succeed,
this should not invalidate the agreement, but rather the agreement should be
deemed to be fully valid (paragraph 7.95).
115.
Where there is evidence that the occupier had sought to
mislead the landlord as to his or her status as successor, this should be the
basis for possession proceedings in the normal way (paragraph 7.96).
To what should successors succeed?
116.
We provisionally propose that a person who succeeds under the
statutory right of succession should succeed to the same agreement. (The only
exception would be that a non-spouse successor of a former Rent Act tenant
would not succeed to the right to a fair rent.) Save as to the identity of the
occupier, the terms of the agreement will not change unless a variation is
agreed or permitted by the agreement (paragraph 7.99).
Should joint succession be possible?
117.
We provisionally propose that it should be possible for joint
occupiers who have the right to succeed, to have the rights of occupation under
the agreement transferred to them jointly (paragraph 7.103).
How should disagreements about who should succeed be resolved?
118.
We provisionally propose that where there was more than one
potential successor, they should seek to resolve any dispute between
themselves. However, where there has been a failure to resolve the matter, it
should be resolved by the landlord (paragraph 7.107).
119.
We invite views as to whether there are special cases where
the matter should be resolved by a court (paragraph 7.109).
An alternative approach?
120.
We invite views on whether an alternative approach
based on a more limited right of succession, but one which was not limited in
the number of successions, and/or was open to a wider group of potential
successors, is to be preferred (paragraph 7.112).
Effects of succession on past and future rights and liabilities under the
agreement
121.
We provisionally propose that, where the agreement does not
terminate following the death of the occupier, the landlord should be required
to serve an amended copy of the agreement on the new occupier. The same rent
and criminal penalties and time limits for non-compliance should apply as do on
the creation of a new agreement. The time limit for this should run from the
date on which the landlord is satisfied, or should reasonably be satisfied,
that the former occupier has died and a successor has been entitled to take
over the agreement without the agreement terminating (paragraph 7.115).
122.
We provisionally propose that, in cases of succession under
our scheme, the deceased occupier’s estate should retain all the deceased
occupier’s rights and liabilities relating to the period before the succession,
and the statutory successor, as such, should neither benefit from nor be
burdened by them. The statutory successor, and not the estate, should take all
the rights and liabilities under the agreement in relation to the period after
the succession (paragraph 7.126).
123.
We provisionally propose that on the date of the death of the
occupier, or the date on which the agreement is terminated, if later, the
rights and liabilities of the deceased occupier for events occurring before
that date should be taken over by the deceased’s estate. The estate should not
be liable for any rights and liabilities arising after that date (paragraph
7.131).
Part VIII:
Occupation agreements and third parties: Transfers of landlord's rights and
other matters
The need to use principles of land law?
124.
We provisionally propose that, in determining whether
occupation agreements are binding on successors to the original landlord,
existing principles of landlord and tenant law should continue to apply to
determine whether such agreements constitute a lease or a licence (paragraph
8.42).
Rent Act 1977 statutory tenancies
125.
We provisionally propose that statutory tenancies under the
Rent Act 1977 should, on conversion to type I agreements, take effect as a
property interest (paragraph 8.46).
Other third party matters
126.
We provisionally propose that our new scheme should not
interfere with land law on the determination of questions such as whether the
occupier has the rights of a leaseholder in relation to third parties such as
trespassers or neighbouring landowners who commit the tort of nuisance
(paragraph 8.48).
Application of the land law approach to landlords’ successors in title
127.
We provisionally propose that our scheme should not make any
special provision, above that imposed by general landlord and tenant law, for
head landlords, whose leases fall outside our scheme, to be bound by occupation
agreements covered by our scheme which are created by mesne landlords
(paragraph 8.73).
The responsibilities of the new landlord: the effects of assignment of the
landlord’s reversion
128.
We provisionally propose that the process of converting an
existing tenancy into an occupation agreement within our scheme should be
deemed to be the creation of a “new tenancy” for the purposes of the Landlord
and Tenant (Covenants) Act 1995 (paragraph 8.86).
129.
We further provisionally propose that, save for sections 16 to
20, the provisions of the Act of 1995 which deal with the rights and obligations
of assignors and assignees should apply to transfers of occupation agreements,
classified in law as tenancies, within the scope of our scheme (paragraph
8.87).
Notice of disrepair
130.
We provisionally propose that any notice of disrepair given to
a landlord should be effective as notice to a new landlord, though the new
landlord’s liability should only start to run from the date of acquisition of
their interest in the property (paragraph 8.87).
New landlord’s duty to give details to the occupier
131.
We provisionally propose that the new landlord should have to
serve written notice on the occupiers of a name and address for service for
themselves and any agents (matching the requirements of the core term in the
original agreement) (paragraph 8.95).
132.
We provisionally propose that on receipt of this notification
the occupier should be entitled to require the new landlord to supply a revised
copy of the agreement, as happens on a variation of the agreement (paragraph
8.96).
133.
We provisionally propose that if the new landlord fails to
give the prescribed information to the occupier within two weeks of the
assignment, the new landlord should be liable to an equivalent rent sanction as
applies in the case of the original agreements. He or she should be deemed to
owe the occupier the equivalent of one day’s rent for each day’s delay,
starting with the date of the assignment, up to the date of notification or two
months from the assignment, whichever is the shorter (paragraph 8.101).
134.
We seek consultees’ views as to whether an ongoing
sanction is required for cases where new landlords still fail to provide
notification, despite the loss of rent. Do consultees feel that it would be
useful and appropriate to create, in addition, a continuing criminal offence of
failure to provide notification by the end of the first two months after the
assignment (paragraph 8.102)?
135.
We provisionally propose that a compulsory term in occupation
agreements should require the original landlord, on disposing of their interest
to a new landlord, to give the occupier notice of the new landlord’s identity
and address for service, or ensure that the new landlord does so. The term
should render the former landlord liable for any breaches by the new landlord
until either the former or new landlord gives the occupier the required notice
(paragraph 8.104).
Where occupiers can stop a landlord dealing with the landlord’s interest
136.
We provisionally propose that current rights for occupiers of
social landlords to consultation and participation, including those on
disposals of the landlord’s interest, should be retained in our new scheme for
those occupiers by being incorporated as a compulsory term in the occupation
agreement (paragraph 8.111).
137.
We provisionally propose that Landlord and Tenant Act 1987,
section 3(1) should be amended so as to continue to apply the right of first
refusal to those type I agreement occupiers who were formerly Rent Act 1977
protected tenants (paragraph 8.114).
