The Law Commission

The Law Commission

(Consultation Paper No 168)

RENTING HOMES

2: CO-OCCUPATION, TRANSFER AND
SUCCESSION

A Consultation Paper

London: TSO

The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Honourable Mr Justice Toulson, Chairman
Professor Hugh Beale QC
Mr Stuart Bridge
Professor Martin Partington CBE
Judge Alan Wilkie QC

The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.

This consultation paper, completed on 22 August 2002, is circulated for comment and criticism only. It does not represent the final views of the Law Commission.

The Law Commission would be grateful for comments on this consultation paper before 15 November 2002. Comments may be sent –

By post to:

Matthew Waddington
Law Commission
Conquest House
37-38 John Street
Theobalds Road
London
WC1N 2BQ

Tel: 020-7453-1208
Fax: 020-7453-1297

By e-mail to:

housingandadmin@lawcommission.gsi.gov.uk

It would be helpful if, where possible, comments sent by post could also be sent on disk, or by e-mail to the above address, in any commonly used format.

All responses to this Consultation Paper will be treated as public documents, and may be made available to third parties, unless the respondent specifically requests that a response be treated as confidential, in whole or in part.

The text of this consultation paper is available on the Internet at:

http://www.lawcom.gov.uk

CONTENTS

PART I: INTRODUCTION	Part I
Introduction	1.1
Scope of our proposals	1.3
Exclusions	1.4
The subordinate nature of this consultation paper	1.6
Issues addressed in this paper	1.20
The nature of the occupation agreement	1.24
Structure of the contract	1.25
The persons to whom the agreement will apply	1.31
The period of time over which the agreement will last	1.32
Regulatory impact	1.35
PART II: OBTAINING CONSENT	Part II
Introduction	2.1
Structure of consent requirements	2.5
The current position	2.5
Simplifying the options	2.16
Withholding consent: reasonableness in consent requirements	2.27
Special cases	2.34
Effect of transactions where necessary consents have not been obtained	2.45
Our approach	2.47
PART III: CO-OCCUPATION AGREEMENTS	Part III
Introduction	3.1
The current law of joint occupation	3.3
Our approach	3.9
Joint occupation agreements – creation	3.14
Joint occupation agreements – liability	3.20
Joint and several liability	3.21
New joint occupiers entering the agreement	3.29
A right to a joint agreement?	3.32
Effects of applications to bring in new joint occupiers	3.51
Joint occupiers seeking to withdraw from the agreement	3.59
The formal route	3.62
The informal route	3.102
Non-contractual arrangements	3.113
Possession proceedings – proposals for protection	3.115
Restricting the landlord's power to regulate non-contractual occupiers?	3.124
Amending the Family Law Act 1996	3.132
Other matters	3.139
PART IV: THE RIGHT TO TAKE IN LODGERS	Part IV
Introduction	4.1
Type I agreements	4.3
Definition of "lodger"	4.6
A consent requirement?	4.20
Application to type II agreements	4.29
Should lodgers have a written agreement?	4.37
The effect of a lodger on the head landlord	4.42
PART V: SUB-OCCUPATION AGREEMENTS	Part V
Introduction	5.1
The current law	5.4
Statutory provisions	5.6
Our approach	5.9
Type I agreements	5.11
Sub-occupation agreements of part of the premises	5.12
Sub-occupation agreements of the whole of the premises	5.19
Type II agreements	5.30
The type and content of the sub-occupation agreement	5.34
The type of agreement	5.35
The terms of the sub-occupation agreement	5.47
Formalities	5.57
The effect on head landlords of authorised sub-occupation agreements	5.59
The resulting liabilities of landlords and sub-occupiers	5.67
PART VI: TRANSFERRING RIGHTS OF OCCUPATION	Part VI
Introduction	6.1
Transfers	6.3
The current position	6.3
Our approach	6.5
Transfer of Rent Act statutory tenancies	6.12
Special cases	6.14
A right to transfer by mutual exchange	6.15
Transfers to potential successors	6.42
Transfer by order of family courts	6.57
Effects of the transfer of the right to occupy to another	6.72
Consent	6.73
Method of transfer	6.75
Formalities	6.78
The position of parties after a transfer	6.82
The relationship between sub-occupation agreements and transfers	6.103
Transfers of the residual periods of long leases	6.113
PART VII: THE EFFECTS OF THE DEATH OF AN OCCUPIER	Part VII
Introduction	7.1
The effect of the death of the occupier on the agreement	7.2
The current law	7.2
Our approach	7.6
Termination of the agreement	7.16
A statutory right of succession	7.42
The present position	7.48
Our provisional proposals	7.50
Who should have the right to succeed?	7.55
How many successions should be permitted?	7.71
What counts as a use of succession rights?	7.82
When can the status of successor be lost?	7.88
To what should successors succeed?	7.97
Should there be separate treatment of fixed-term agreements?	7.101
Should joint succession be possible?	7.102
How should disagreements about who should succeed be resolved?	7.105
An alternative approach?	7.110
Effects of succession on past and future rights and liabilities under the agreement	7.113
Survivorship in joint agreements	7.120
Statutory succession	7.122
Termination of the agreement on death	7.127
PART VIII: OCCUPATION AGREEMENTS AND THIRD PARTY RIGHTS: TRANSFERS OF LANDLORD'S RIGHTS AND OTHER MATTERS	Part VIII
Introduction	8.1
The need to use principles of land law?	8.4
Housing law and land law	8.10
The policy of land law	8.12
Statutory exceptions to the land registration scheme	8.16
Overriding interests	8.26
The impact on licences	8.30
Conclusion	8.37
Rent Act 1977 statutory tenancies	8.43
Other third party matters	8.47
Application of the land law approach to landlords' successors in title	8.49
Registration of title	8.50
Informal leases	8.54
Mortgages	8.58
Landlords' superior landlords	8.64
The responsibilities of the new landlord: the effects of assignment of the landlord's reversion	8.74
The current position	8.75
Our approach	8.80
Other matters	8.88
Where occupiers can stop a landlord dealing with the landlord's interest	8.105
Social landlords	8.107
Private sector landlords	8.112
PART IX: SUMMARY OF PROVISIONAL PROPOSALS AND CONSULTATION QUESTIONS	Part IX
APPENDIX: THE EXISTING SUCCESSION RULES	Appendix
The Rent Act 1977	A.2
Member of the family	A.7
Residence	A.8
Determining priority	A.10
The Housing Act 1985	A.11
Member of the family	A.13
Successor	A.14
Determining priority	A.16
The Housing Act 1988	A.18
The Housing (Scotland) Act 2001	A.24
Qualified persons	A.26
Order of priority	A.28