2003 and all that

Last year was a busy one for housing professionals in legal terms. New legislation included the Commonhold and Leasehold Reform Act, the Homelessness Act and the Police Reform Act, which extended the use of antisocial behaviour orders. The courts made some key decisions on possession proceedings, human rights, homelessness and allocation schemes.

This year may be even busier. It brings the promise of the Law Commission's final report on housing law reform, a draft Housing Bill (announced in the Queen's speech in November) and a white paper on antisocial behaviour.

Meanwhile, last year's housing legislation is about to come into force, and in the House of Lords a number of housing case appeals are pending.

Choice-based policies
The allocation measures in the 2002 Homelessness Act come into force at the end of this month (changes to local authority responsibilities took effect last year).

These allocation measures promote social housing lettings policies that give more choice to the homeless. There will be changes to the preferential categories for allocations and preference will be removed where the applicant is judged guilty of antisocial behaviour.

Most of the leasehold reform in the commonhold and leasehold reform legislation is likely to take effect in June (the enfranchisement and lease extension changes came into force last summer). This has major implications for registered social landlords and the private sector too.

New consultation requirements for service charges will make it easier for leaseholders to challenge them. Local authorities will have to take account of the new rules on long-term agreements affecting leasehold dwellings when planning estate-wide renovation and repairs programmes. These will have to be taken into account in local authority private finance initiative contracts.

RSL leaseholders will have a new, statutory, no-fault-based right to take over the management for the block containing their flats.

RSLs and the commonhold option
Commonhold, the government's preferred alternative to the leasehold system, may start in December. But how many social landlords go for it will depend on the final government decisions on a commonholder's right to grant leases.

If the government sticks to the plan to limit lease granting powers to short leases without a premium, it would be impossible for RSLs to use commonhold for shared-ownership schemes (unless another approach for this type of low-cost home ownership comes on to the market). True, there will be no problem using commonhold flat units for standard renting, but new housing developments without shared ownership may be unattractive to RSLs.

New consultation requirements for service charges will make it easier for leaseholders to challenge them

Antisocial behaviour
Most of the changes to ASBOs – extending their use to RSLs and the transport police, for example – came into force last month.

From April, county courts will be able to make ASBO orders in possession proceedings for the first time. This will give local authorities, RSLs and other relevant authorities the option to apply for an ASBO in either the magistrate's court (as now) or in county court proceedings. Both courts will have the power to make interim orders.

Last year the ODPM published a consultation paper on dealing with antisocial behaviour in the housing sector. The Home Office now seems to have overall responsibility for this subject with the setting up of a new antisocial behaviour unit.

A white paper on antisocial behaviour may be published this spring. The paper is likely to include proposals for tackling housing-related misbehaviour, such as powers to reduce the security of an occupier, or to order immediate possession for breach of an injunction.

More reforms planned
This spring the Office of the Deputy Prime Minister will publish a draft Housing Bill.

It is likely to propose new requirements for the licensing of houses in multiple occupation as well as the licensing of private landlords in some areas. The long-awaited housing fitness and rating standard may be included, and the seller's pack idea, designed to speed up conveyancing, may be revived.

New tenancy types
This summer, the Law Commission's final report on reforms to the law on rented accommodation is due. Its proposals are likely to include reducing the types of tenancy to two:

type one will closely resemble the secure tenancy and will give tenants security of tenure (no mandatory possession grounds)

type two will closely resemble the assured shorthold tenancy, where the tenant will have no security of tenure (probably without the six-month moratorium of obtaining possession).

Type one occupancies will also carry other rights. These are likely to include:

Proposals to reduce the number of tenancy types to just two would be the biggest change to the laws governing rented accommodation since 1980

the right to have a lodger

the right to join other occupiers on the agreement and the right to allow someone to occupy part of the dwelling, both subject to the landlord agreement

the right of a joint occupier to leave without having to terminate the agreement

new succession rights for all partners, married or otherwise, of the same or the opposite sex, with a second succession right for other family members.

These new types of housing agreement are supposed to be tenure-neutral, though in practice only social landlords are likely to opt for type one and they will want to be able to use type two for various forms of short-term lets, including introductory tenancies.

These changes are enormous in their scope because a third of all households rent their homes and the measures will, if implemented by law, amount to the biggest change to the laws governing rented accommodation since 1980, when council and RSL tenants first gained rights as secure tenants.

Some of the rights enjoyed by tenants of social landlords are outside the Law Commission's brief: notably, the right to buy and the right to acquire.

Concerns have, of course, been expressed in the housing press, by government and other bodies, that this may have an adverse effect on new housing initiatives such as those for key workers. Other fears have emerged that speculators are exploiting the right to buy. Perhaps the government will include right to buy measures in the draft Housing Bill.

Watch this space
Since the introduction of the Human Rights Act, human rights issues have figured prominently in housing cases. This trend shows no sign of diminishing.

The courts have, in effect, anticipated the Law Commission's recommendation that same-sex partners should be treated for succession rights in the same way as partners of the opposite sex. Indeed, in the recent case of Mendoza v Ghaidan, the Court of Appeal held that limiting succession rights to a statutory Rent Act tenancy to spouses of the opposite sex is discriminatory and unlawful under human rights standards.

Among the appeals pending in the House of Lords, the outcome of two cases in particular will be closely monitored. Argument in the appeal of Begum v Tower Hamlets LBC, which will heard this month, could have a critical impact on local authority decisions on homeless reviews. It will question whether the current system of internal reviews by authorities, where applicants challenge their decisions under the homelessness legislation, is human rights compliant? The Court of Appeal said yes it was, as there is a right of appeal to the county court where the court possesses full jurisdiction to guarantee compliance with the Human Rights Act 1998. But will the House of Lords agree? Meanwhile, the Qazi v Harrow LBC ruling is under appeal in the Lords. The Court of Appeal ruled that a court hearing a possession claim where a social landlord seeks possession from a former joint tenant must be satisfied that there is compliance with article 8 of the Convention on Human Rights. If the Lords agrees and remits the case to the County Court to decide whether the landlord is acting proportionally in seeking possession against a former joint tenant whose wife left the home and was rehoused after terminating the tenancy by giving notice to quit, it will have a significant effect on social landlords dealing with the housing consequences of relationship break-up. If the approach of the Court of Appeal is upheld, the law will already be moving rapidly to the position advocated by the Law Commission.