Housing Act 2004
The commencement of the majority of the provisions of the Housing Act 2004 came on 6 April 2006. The legislation is primarily concerned with local authorities' powers to regulate conditions in private sector accommodation. The Act introduces:
In the past, appeals against local authority decisions with regard to enforcing housing conditions have been to the county court. Generally, appeals against action taken by authorities under the 2004 Act is to the Residential Property Tribunal. The tribunal is the Rent Assessment Committee by another name. The name Residential Property Tribunal Service has been used for some time by the committee as an umbrella name to cover all its various statutory functions (for example, as the leasehold valuation tribunal).
The 2004 Act marks yet another huge extension to the committee's jurisdiction, following on from the extension of the Leasehold Valuation Tribunal's jurisdiction by the Commonhold and Leasehold Reform Act 2002 in relation to disputes between leaseholders and their landlords.
Procedure before the Residential Property Tribunal is governed by the Residential Property Tribunal Procedure (England) Regulations 2006 (SI 2006/831). Fees are separately dealt with in the Residential Property Tribunal (Fees) (England) Regulations 2006 (SI 2006/830). The procedure regulations are broadly similar to those that apply to the Rent Assessment Committee and to the Leasehold Valuation Tribunal. The tribunal is given broad powers to determine how a particular case should be run. A schedule to the regulations sets out the documents that must be supplied for each type of application. Many applications under the 2004 Act will turn on expert evidence, and specific requirements are set out for the content of expert reports in line with the requirements of rule 35 of the Civil Procedure Rules 1998.
Most significantly, the tribunal has no general power to award litigation costs. Rather, it has power to award no more than £500 in limited circumstances, for example, where a party fails to comply with an order of the tribunal or has acted unreasonably in connection with the proceedings (see schedule 13, paragraph 12(2) of the 2004 Act). In addition, a party can be required to reimburse the other party for any fees paid (see regulation 6 of the fees regulations).
The Residential Property Tribunal Service anticipates an additional 8,000 cases as a result of this new jurisdiction. Increasingly, it is becoming a major forum for resolving housing law disputes and there can be little doubt that its jurisdiction will continue to expand. Indeed, in the future, primary legislation will not be required to add to its remit, as section 229 of the 2004 Act allows the secretary of state to transfer matters to its jurisdiction by order.
Suspended possession orders
Where a suspended possession order is made against a secure tenant, if the tenant breaches the terms of the order, his tenancy comes to an end (see section 82(2) of the Housing Act 1985). He may apply to the court for his tenancy to be revived under section 85 of the 1985 Act, but in the interim he is merely a tolerated trespasser. The problems involved in the status of a tolerated trespasser are well known. He cannot rely on the terms of his tenancy agreement, cannot exercise the right to buy and his family have no rights of succession to his tenancy.
The current standard County Court form for a suspended possession order based on rent arrears cases (form N28) has been in use since 2001. Paragraph 1 of the order requires the defendant to give possession by a specified date. Paragraph 5 provides: 'This order is not to be enforced so long as the defendant pays the claimant the rent arrears and the amount for use and occupation [and costs, totalling] £ ... by the payments set out below in addition to the current rent.'
It was generally understood that the effect of an order in this form was that the defendant's tenancy continued until he failed to make a payment in accordance with the order. However, in Harlow DC v Hall [2006] EWCA Civ 156, the Court of Appeal held that the effect of an order in form N28 was merely to suspend the execution of the order. The landlord could not request a warrant of possession until the terms were breached but the tenancy came to an end at the date specified in paragraph 1. Accordingly, the effect of the order was to render large numbers of tenants tolerated trespassers.
To rectify this situation, on 17 March 2006, the Court Service notified the county courts that the wording of form N28 should no longer be used. The proposed solution was an amended form N28 entitled 'Order for possession (rented premises) (postponed)'. While that new form of order overcomes the problem created by Hall, it does not address the wider problems commonly encountered with suspended possession orders because it requires the current rent and a periodic sum off the arrears are paid regularly each week on the rent day. One missed payment still leads to the termination of the tenancy. This is unrealistically onerous for the tenant, particularly given that many such tenants pay off the arrears by sums directly deducted from their benefits. Such sums are paid monthly in arrears.
In Bristol City Council v Hassan and Bristol City Council v Glastonbury [2006] EWCA Civ 656, the Court of Appeal took the opportunity to devise a form of order that overcomes these problems. The solution is to postpone the date for possession until a date to be fixed. Therefore, a breach of the terms of the possession order no longer brings the tenancy to an end. If a breach occurs, the landlord can apply to the court for a date for possession to be fixed. The court was concerned not to place too great a burden on the landlord and decided that the application can be without a hearing, provided that the tenant has been warned that the application is to be made. The form of order that the court recommended is as follows:
The court emphasised that it was not saying that this form of order must be used in all cases. The form of order remains at the discretion of the court. Nevertheless, it is hoped that county courts will adopt this form of order, which avoids the problems caused to both landlords and tenants by the concept of the tolerated trespasser.
By Andrew Dymond, Arden Chambers, London
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