The Law Commission

PART I

INTRODUCTORY MATTERS

The status of this report

1.1     When this project was formally launched at the end of March 2001, it was planned that a Final Report, together with draft Bill, would be published in the summer of 2003.
1.2     This time scale has proved over optimistic because:

(1) there was a far greater response to the two consultation papers than we had anticipated; thus analysis of the responses took much longer than had been initially envisaged;

(2) the scope of the first stage of the project was considerably broadened by the decision to consider not only questions relating to succession to agreements, but also those relating to joint occupation and the transfer of agreements; this added substantially to the complexity of the issues to be determined;

(3) as a consequence, the process of preparing instructions to Parliamentary Counsel, who draft the Bill, has taken longer than anticipated.

1.3     However, given the importance of the project, and the attention it is now attracting both within Government and more broadly in the housing world, the Law Commission has decided to publish the following narrative report. This should assist those whose task it will be to consider the implementation of the scheme to proceed with their thinking and planning, without waiting for the final outcome of the Bill drafting process.
1.4     In essence, this report sets out the Law Commission's recommendations for the reform of housing law, which we are likely to make in the Final Report and Draft Bill. The following points must be carefully noted.

Points to note

1.5     One of the features of the legislative process, not perhaps obvious to those outside it, is that drafting Bills does not involve a simple transformation of policy decisions into legislative form. Ideas that may seem straightforward to policy-makers may be hard, if not impossible, to translate into legislative form. There is a lengthy process of discussion and refinement of ideas that takes place between policy-maker and draftsman, particularly of points of detail.
1.6     Thus, while this report sets out the principal features of the scheme we recommend to Government, it cannot be stated too emphatically that the contents of this report still remain subject to final decisions particularly on points of legislative detail.
1.7     When the draft Bill and Explanatory Notes on the Bill have been completed, they will be published, in the normal way, preceded by the Commission's Final Report.
1.8     Secondly, in taking this project forward, the Law Commission has worked closely with Ministers and officials, especially in the Office of the Deputy Prime Minister (ODPM), without compromising the independence that is essential to the work of the Law Commission. Indeed, publication of this report is designed, at least in part, to assist ODPM with their own procedures for developing legislative proposals. It again cannot be overemphasised that any decision as to whether or not the Bill the Commission finally produces is introduced into Parliament is wholly a matter for Government. The publication of this Report of our recommendations should not be taken as any indication of a commitment by Government to enact our proposed scheme.
1.9     Thirdly, and conversely, if in the interval between the publication of this Report and the publication of our Final Report and Draft Bill it emerges that thinking within the ODPM is beginning to run on lines different from those adopted by the Commission, the Law Commission will not be tailoring its recommendations just to accommodate the policy of the ODPM. The recommendations that will appear in our Final Report and Draft Bill will remain those of the Law Commission.

Nomenclature

1.10     In this report, we have followed the nomenclature of agreement types and parties used in the two consultation papers.^[1] Thus the agreement types are "type I" and "type II" and the parties are "occupiers" and "landlords". With the exception of the last, we accept that these terms are inadequate, and they will be replaced in the Bill. However, the exact terms have not been finalised, and therefore we concluded that the simplest solution was to continue with these terms for the time being. "Occupier", in particular, causes difficulties. Generally, it is used to indicate the party contracting with the landlord. Where it might not be clear whether we are referring to that person or to another person who is physically occupying the premises, but is not a party to the contract, we have specified "contractual occupier" for the former and "non-contractual occupant" for the latter.
1.11     In relation to terms of the agreement, we have slightly amended the expression "compulsory term" to "compulsory-minimum term", to emphasise the point that (for the most part) these terms provide a minimum of occupiers' rights, which can be varied so as to give greater rights. The "core terms" of CP 162 become "key terms" and "default/negotiable terms" become "other terms", made up of default terms, substitute terms for default terms, and additional terms. We have also created a new category of "special terms". The reasons for these changes are explained at the appropriate point in the text.^[2]

Note 1    Renting Homes 1: Status and Security (April 2002) Consultation Paper 162 (henceforth “CP 162”); and Renting Homes 2: Co-occupation, Transfer and Succession (September 2002) Consultation Paper 168 (henceforth “CP 168”).    [Back]

Note 2    See Part VIII.    [Back]