Think tank

Grounds for possession

Regarding your recent series of articles on disability access, I have found that, when a disabled person dies, the tenancy is often passed on to the surviving spouse, who then ties up that home for a number of years. I think the right to pass on a tenancy should not apply to these properties. Doesn’t this conflict with the Disability Discrimination Act?

There are grounds for possession that can be used in this situation. Ground 13 of schedule 2 to the 1985 Housing Act enables landlords of secure tenants to seek possession where the property is designed for occupation by a physically disabled person and there is no longer a disabled person occupying the property. The landlord must also show that the home is required by someone with a disability and must offer suitable alternative accommodation to the occupant being made to leave.

For assured tenancies, ground 9 of schedule 2 to the Housing Act 1988 provides a similar route to possession. Even though the court will be primarily interested in the suitability of the home being offered, its decision on whether a possession order is reasonable will take into account the reasons why the landlord needs to obtain possession – that is, because it is designed for occupation by a disabled person and the landlord needs it for that purpose. Nick Billingham, Partner and head of housing management litigation at law firm Devonshires

Whether a tenancy is secure or assured, if the tenant is not a successor it will pass on death to his or her spouse, regardless of the adaptations. But if the spouse does not need the special adaptations it is open to the landlord to discuss a move. A landlord could bring possession proceedings using ground 13 or ground 9 as already mentioned. However, many registered social landlords limit the circumstances in which they use ground 9 so the tenancy agreement needs to be checked. In summary, landlords wanting to make adapted properties available to those who need them can do so – but most would not want to make a spouse move out shortly after a bereavement. Catherine Hand, Partner at solicitor Jenkins & Hand

Can we deduct from the rent?

I was interested to read your piece on Brighton & Hove council’s attempt to deal with rechargeable repairs (“Clean up your act”, 29 October, page 30). I have a problem with tenants who either trash properties or leave behind unwanted furniture when they move on. We are adopting a tough recharge regime, but I realise this could be a paper tiger, in the sense that attempting to enforce any court order may be fraught with problems. We are contemplating a regime of deducting the cost of any rechargeable repair where possible from the first monies in the rent account. This would be easier to enforce than a court order based on arrears. Would this run foul of the law?

If your tenancy agreement requires tenants to remove all possessions and leave the property in a decent state on vacating, you are entitled to claim damages for breach of contract. However, those sums will never be arrears of rent, and should not be treated as such for the purpose of court proceedings. Court proceedings require you to sign a statement of truth and, in order to complete the forms properly in relation to assured tenants, you would need to break down the sums claimed and rely on ground 12 (breach of tenancy terms). Your claim should separately set out any arrears of rent, damages for breach of contract and costs. Rosemayr Hart, Partner and housing specialist, Trowers & Hamlins

There are some legal questions that would have to be considered before you introduce this regime. For example, all the tenancy agreements may need to be varied to allow this and, even if this were done, it may fall foul of legislation covering unfair contract terms.

In attempting to tackle the problems you have described, some landlords are looking at things differently. For example, some are looking at offering so-called “Gold Service” initiatives, which are incentives to tenants to meet their tenancy agreements, rewarding those outgoing tenants that leave their properties in good condition. Nick Murphy, Executive director of housing, communities and regeneration at Southampton council