Can I, as a social landlord, require tenants to move to smaller homes if their needs are reduced, thus freeing up family-sized accommodation to meet housing needs? Can this be made a term of tenancy, assisting in the effective use of social resources?
In a word, no. The objective of social housing is to provide, wherever possible, security of tenure, so provided the tenant does not break the tenancy conditions he or she has right to remain in the property indefinitely. Equally, the sector does promote 'Homes for Life' and general practice allows at least one succession of tenancy, with certain limits.
I would suggest that putting such a condition within a tenancy is possible, but it would not be a mandatory ground for possession. You would therefore have to seek possession through a court and I very much doubt it would be enforceable as it is likely to be considered unfair.
The matter of best use of stock is clearly one with which all over-stretched providers are confronted. There are other ways of tackling under-occupation. Many registered social landlords run incentive schemes to encourage predominantly older people into smaller accommodation. Having a good range of properties and a preferential transfer scheme will also help, as will building relationships with other providers through common allocation and transfer policies that widen the scope for people to consider a move.
Pete Jeffrey, Director of Human Resources, Anglia Housing Group
Curry – the second course
I read with interest the question about properties adjacent to a curry house (linked story, below). Have you spoken to the owner of the restaurant? The possibility of problems with, or the installation of, extraction equipment come to mind.
The 1990 Environment Protection Act, as amended by the 1993 Noise and Statutory Nuisance Act, gives local authorities a duty to investigate a complaint of "noise or other nuisance (including smoke, fumes, accumulations, deposits, odours)" and may therefore be of use. Leaflets can be downloaded from the Department of the Environment, Food and Rural Affairs website (www.defra.gov.uk) and that of the National Society for Clean Air and Environmental Protection (www.nsca.org.uk).
However, perhaps the problem is not exactly as it may first appear. Most housing staff will be aware of some of the great euphemisms of our time and I wonder whether "cooking smells" may fall into this category. Care is needed to ensure that actions taken in response to nuisance complaints do not support intolerance.
The first issue to be addressed in this case seems to be that of possible racist intent. What has changed "recently"? The ownership of the restaurant, the trading hours, or a new tenant to one of your properties perhaps? If the language of hidden racism is clarified, the law may have a role by pursuing a "malicious complaint".
Tim Winter, national organiser, Social Landlords Crime & Nuisance Group
Can our homelessness project transfer arrears?
We have a wide range of short-term accommodation for young homeless people and are part of wider networks of similar services within London. We have a persistent problem of people accruing arrears which are left when they move on and become very difficult to manage and recover. With the client group in question, it often takes time to sort claims out and usually requires a lot of detailed input.
We would like to introduce a system which meant that on moving, either internally or externally, from one project to another, and subject to the written consent of the resident, we would transfer the arrears to their new rent account as a starting balance. Is there any legal or good practice reason why we shouldn't do this?
There are some difficulties with this and it will not solve all your problems. Tenancies are essentially property interests – when a tenant moves to a different property they have a new tenancy. You can make it a condition of the new tenancy when they move in, that they pay the arrears from the old tenancy. However, that money is unlikely to be treated as rent arrears of the current tenancy by a court, as they are not rent arrears of that property.
You would have to bring proceedings for breach of a tenancy condition. It is also not going to be treated as rent in the new property for housing benefit purposes – so it may help but it will never be a complete answer.
Catherine Hand, Partner at solicitor Jenkins & Hand
Former tenancy arrears can be transferred to a new tenancy if you move someone on with arrears. The procedure is to include a special condition in the new tenancy whereby the tenant agrees to repay the former tenancy arrears at a certain rate in addition to the rent payable under the new tenancy.
If the tenant breaches the condition then possession proceedings can be taken under ground 12 of Housing Act 1988 (breach of an obligation of the tenancy). If the tenant is also in arrears with the current rent, this will mean an NOSP and possession proceedings on both ground 10 (possibly also 8 and 11) and ground 12.
Nick Billingham, Partner and head of housing management litigation at law firm Devonshires
The right to move – some more advice
In response to the letter from a housing trust tenant wishing to hold a landlord to a promise to transfer him or her to a new home (see linked story, below): there is no right to be transferred as such unless your present accommodation is unsuitable. If the nuisance is severe and ongoing, then you should be rehoused unless there is an alternative, for example evicting the culprit.
Two years seem a long time to find a suitable place to live for a victim of nuisance, or to take effective action against the perpetrator. However, the fact that you refused an offer already may indicate that the problem is no longer very serious and that your priority is therefore low. Your refusal, of course, could have been justified if the offer was not suitable for your needs (you ought to have medical or environmental health evidence to support your claims).
Either way, if you believe that the trust has breached its promise, that they have not assessed your needs and priority properly, or that they have not followed their policy in dealing with your situation, you ought to make a formal complaint to them.
If you are unable resolve the problem that way, you may contact the ombudsman after you have completed the trust's internal complaint procedure.
Dr Mike Biles, independent housing ombudsman
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