Latest insights from our experts

Posted 31 July 2015
by Simon Sanger-Anderson

Tozers housing law newsletter – Summer 2015

Swings in the park over looked by houses

Section 21 Notices and joint tenants Hacking v Jones (2012)

In the course of our work we have come across an unreported case from 2012. Whilst this was decided in the County Court and has no precedent over another County Court, it is a decision to be aware of.

The decision involves whether s21 Notices each naming only one joint tenant (i.e. a notice addressed to Mr X is served on Mr X and a notice addressed to Mrs Y is served on Mrs Y) is valid so as to terminate an assured shorthold tenancy held as a joint tenancy.

The relevant provisions are s21(1)(b) and s21(4)(a) Housing Act 1988 (“HA 1988”). The specific provisions state:

S21(1)(b) “the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice in writing stating that he requires possession of the dwelling-house”

S21(4)(a) “that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section”

It is clear from the definitions provided in s45 HA 1988 that in the instance of joint tenants the word “tenant” is to be interpreted to mean both of them. This stops a Notice served by a Landlord against one tenant being effective against another without the other having been served with a copy of it (unlike where one tenant can serve a Notice to Quit that terminates the tenancy for both of them).

The Court in this instance decided that for a s21 Notice Requiring Possession to be effective it had to be a singular notice naming both joint tenants and served on both of them. As this is not a binding decision, it is still open for argument as to whether the provisions of s21 mean that only a single notice can be served or whether it is just that a notice needs to be served on both joint tenants. The provisions do not expressly state that the served notice has to name both joint tenants, just that they both have to have had a notice (which is valid) for a possession order to be made.

However, as this is likely to be a costly argument to have, we would recommend that where there are joint tenants, one notice is done naming both joint tenants and that it is served on each of them with an accompanying separate covering letter – e.g. the Notice is addressed to Mr X and Mrs Y, and a copy is sent to the last known address for Mr X and separately for Mrs Y. This would prevent tenants being able to say that they never received the Notice as the other had not informed them of it (a potentially problematic position should the joint tenants be experiencing relationship difficulties).

Do I need a license? DVD’s and communal spaces

We are all familiar with the need for a television license but what about the showing of DVD’s in communal areas? This activity is also regulated and you will need a license in order to be able to do this.

There are two parts to seeking a license and you may need to obtain both types of license.

Premises license
This is a license to allow the screening of films, including those that have been sold to individuals where they are to be shown to a group of people outside of a home setting (i.e. a gathering in a communal lounge). This license is obtained from the local authority. If a film club is established a Film Club License is required.

You do not need to obtain a premises license if:

  • The films are being shown between 8.00am and 11pm
  • It is a not-for-profit screening
  • The audience does not exceed 500
  • The age restrictions on the film are abided by
  • Consent is given by the owner of the communal space.

Film license
This is a license to prevent a breach of copyright. It can be obtained on a film by film basis from the copyright owner or there are 3 licensees who can offer larger scale license for films that they have authority to license. The 3 licensees are BFI, Filmbank or MPLC. The licensees all offer different types of license to fit different scenarios and you would need to research what type of license would be best for your organisation.

If there are DVD’s being shown in communal areas you will need this type of license to be able to do so.

We are aware that at least one of the licensees is becoming aware of the potential issue with housing providers being in breach of the license requirements. They are therefore sending emails (and also letters though we have yet to see one) stating that a license must be obtained. None of our clients who have received this communication fell within the requirements of obtaining a license.

Neither license is free. You may be able to pass on these costs to your tenants so long as your tenancy agreement or lease allows you to do so.  As the costs are likely to be under £250 per year per tenant you will not need to consult with the affected tenants, but you may still wish to do so as the costs are unlikely to be covered by housing benefit.

The alternative to requiring a license is to remove all DVD players from communal areas so that residents can only play films within their homes.

Does an injunction preclude the making of a possession order?

The judge at first instance in Lincoln City Council v Bird felt that it did. This was overturned on appeal and a suspended possession order was put in place.

Mr Bird was 68, on the Sex Offenders Register and had health problems. He was found to have engaged in several significant anti-social behaviour incidents that were threatening, unpleasant and intimidating against neighbours and council staff. The last incident had occurred in the council’s offices and resulted in him being removed by Police.

Two months before the trial the council had sought an injunction. Mr Bird had managed to abide by the terms of the injunction.

The Court of Appeal considered that it was two different questions – whether to grant an injunction and whether it was reasonable to make a possession order. The judge at first instance had also failed to take into consideration an assessment of why it was not reasonable to make a possession order particularly given the further factors to be considered in anti-social behaviour cases under s85A(2) Housing Act 1985 (mirrored in s9A(2) Housing Act 1988 for Assured tenancies), including the impact on neighbours which he had made a clear finding on. In this case, the behaviour was so serious that it was reasonable to grant a possession order. The court, therefore, overturned the judgment and made a suspended possession order applying Knowsley Housing Trust v McMullen (2006).

Wales
Just a little note for those who have any housing stock in Wales. The Housing (Wales) Act 2014 is due to come into force later this year. This Act is planning some significant changes to those operating housing stock in Wales. The highlights are:

  • For private landlords they will need to be registered and if running their own lettings – i.e. do not appoint an agent – they will also need to be licensed
  • For Local Authorities there is the power for Welsh Ministers to set standards for the quality of accommodation, rents and service charges – including minimum and maximum levels
  • An exemption from s25 Landlord and Tenant Act 1985 penalties for local authorities and Registered Providers in Wales (s25 deals with failing to provide service charge information)
  • Allow fully mutually housing associations to grant assured tenancies

Third party funding and recovery of costs through service charges
This case comes as a warning to all where alternative funding has been sourced, at least in part, to cover works to buildings where the costs of those works are passed on through the Service Charge to long leaseholders.

Sheffield County Council had undertaken some significant works to various blocks of flats which included the removal and replacement of outer clay tile cladding and its supporting timber frames. Within this, there were various other works to be carried out including the completion of Decent Homes Standard works that had been commenced a few years previously and the replacement of boilers in properties as the new cladding meant that the existing flues needed work doing to them.

The occupants of the blocks were a mix of tenants and long leaseholders where the right to buy had been exercised. Mrs Oliver was one of those leaseholders and she challenged the recovery of over £9,000 through her service charge by the Council on numerous points.

She was successful on two points:

  • That the cost of asphalt for her balcony should be reduced as it would not have been necessary had the vinyl flooring not been removed (and the vinyl flooring was not installed by her in breach of the lease)
  • That the CESP payment received by the Council should be off set against the service charge to be paid.

The CESP payment was received only in respect of some of the works that had been carried out and not all the blocks had attracted the payment as some of the works were completed after the scheme had concluded. The works to Mrs Oliver’s block had been concluded within the timeframe and therefore Npower made a contribution towards those works.

The contribution for all the works amounted to approximately £1.5 million. The Council showed that just over £42,000 of this applied to the block of flats where Mrs Oliver resided.

In dealing with the CESP monies the Council had off-set them against the charges that they had not passed on to the leaseholders. Arguably, they could have passed at least some of these charges on through the service charge, but they decided not to do so. The Council referred to matters not passed on to the Leaseholders as items that they were bearing the cost of, not items that they were charging but not recovering as they had been covered by alternative funding.

The Tribunal said that this was not the way to deal with these monies. If the monies were received for works that fell as being recoverable through service charges then an account needed to be given to the Leaseholders and an appropriate deduction made. Failure to do this was double recovery by the Council in that they were recovering the cost of the works from the leaseholders and from Npower.

Accordingly Mrs Oliver’s service charge was reduced by the amount of CESP that was apportioned to her property (the amount for the block divided by the number of properties in the block) – £1885.44.

This decision has highlighted the importance of accounting to leaseholders for all the relevant costs involved and sought to be recovered under the service charge. In addition to this, where alternative funding has been granted in part this should also be appropriately apportioned, shown on the service charge statement and deducted from the amount sought to be recovered.

It also creates a potential issue for Landlords who have undertaken similar set-offs, particularly involving CESP payments where they would have incurred the costs of the works over 18 months previously. The issue is that those Landlords can still find themselves being challenged on the reasonableness of the service charge demand, yet cannot issue a new demand that would not fall foul of this double recovery scenario.

If you are in this situation and you incurred the costs of the works less than 18 months ago we would advise that you re-serve the service charge demand showing all the work that you are recovering for, including that which you have not previously included as you felt that this could be covered by a payment from a third party without accounting to the lessors.

Challenge to who can be a successor
To end as we began, with an interesting point of law currently being dealt with by the County Court. Currently this is a matter that has been referred back to the County Court for hearing – so there is no judgment on the point yet. It is an interesting point of law that, whilst arising under a secure tenancy, would have implications for assured tenants who follow a very similar statutory regime when dealing with succession.

The point in issue is that the legislation does not equate a transfer of the tenancy due to a relationship breakdown as a succession, whereby it does when a partner dies. The treating of a death of a partner as a succession in the tenancy ‘uses up’ the statutory availability for the tenancy to then be passed on further upon the death of the remaining tenant. In this case to a son following the death of his parents.

It is being argued that this is against Article 14 (prohibition of discrimination). The argument runs that the son’s mother was discriminated against due to her differing treatment to that of a non-successor tenant through divorce. If this is found then the son will be able to statutorily succeed to the tenancy.

We await the decision on this point, and it will (at this stage) only be a county court decision which is not binding on other county courts, however it is one to be aware of should a similar situation arise as no doubt, should legal aid be granted to challenge the refusal of a succession under the statutory procedure where this has occurred, it will be raised by the solicitor acting for the person trying to claim succession.

Further advice
Please contact our specialists, Sarah Schooling, Jenny Lloyd or Nicola Rumsey at
Broadwalk House, Southernhay West, Exeter, EX1 1UA
Call: 01392 207020 or email: has@tozers.co.uk

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About the author

Simon Sanger-Anderson

Partner

Partner and solicitor within the employment team, Simon also leads the firm's cross departmental Social Housing Practice Group