We served an NOSP and an NTQ simultaneously "without prejudice" to each other on a secure tenant who was in rent arrears and failing to occupy his property as his principal home. Before the case reached court we were advised we could not proceed, as the notices marked "without prejudice" could not be submitted as evidence. We have now been advised that if we wish to take the court action, we must reserve either the NOSP or NTQ. If an order is not granted on the basis of the one notice, we then have to reserve the other notice and go through the whole process of booking for court again. Was our original action correct, or should we follow the subsequent advice?
It is quite proper to serve a NOSP and an NTQ simultaneously in this situation.
When serving two notices at once, one of the notices should be expressed to be "without prejudice" to the other. It is better to say this in a covering letter rather than writing it on the notice itself. But it would be wrong for a court to throw out a notice marked "without prejudice". The term is not being used here in the context of negotiations which the parties do not want to be referred to in court. Therefore, the material is perfectly admissible.
And it is patent nonsense to say that you should issue on the back of one notice and, if you fail, serve a different notice and start again.
Nick Billingham: partner, Devonshires
Stubborn supportees
A number of long-standing tenants in our supported housing were granted assured tenancies. They no longer require the support but have refused offers of suitable move-on accommodation. The landlords offering the accommodation are unwilling to carry a void until a hearing on ground 9 can be held, and our supported housing bedspaces are becoming blocked. Do we have any other recourse?
Assuming these are assured tenancies issued in accordance with the 1988 Housing Act, then ground 9 of schedule 2, part 2 (suitable alternative accommodation is available for the tenant when the possession order takes effect) would appear to be the only ground available unless there are any breaches of the tenancy conditions. If these are fixed-term tenancies, however, other factors must be taken into account before embarking upon a possession action.
Richard Kemp: Executive member for housing & neighbourhood services in the Liverpool cabinet
Find out why the tenants don't want to move. Assure them you will pay removal costs – if possession were granted on ground 9, you would be legally obliged to do so – and offer additional help with the move.
If they still won't move, you don't need to carry the void until the hearing. All that is necessary is that suitable alternative accommodation be available when the possession order takes effect – it doesn't need to be the same accommodation the tenant rejected.
John Bryant: Policy officer, National Housing Federation
Tenants living in shared housing are usually itching to get their own accommodation. If not, it suggests unresolved support issues.
If a tenant is currently in a self-contained flat, it may be an idea to leave him or her in place and transfer the support to another flat. If this is not suitable, ground 9 is the best route. The landlord must obtain either a written statement from a local authority that the tenant will be rehoused by a specific date or provide accommodation themselves.
Mark Austin: Operations manager, London & Quadrant
Sitting on the fence
A tenant applied to purchase her home under right to buy. Prior to the application it was agreed that a new fence would be erected to the side of the property. This work is extensive and costly. She is now claiming that we still have an obligation to undertake this work even though the right to buy is in place. Is this correct? And this raises the issue of our landlord repair liabilities under right to buy: is it correct that we only have a duty to repair, and not to undertake improvements? Also, when does the application take effect? We are notified by computer as soon as a request for forms is made. I would have thought that the return of completed forms to the council would be a better indication.
It depends what you mean by "it was agreed" the fence would go up. Was this agreed to settle a dispute? This problem comes from a council; an RSL should also consider whether putting the fence up was a stock transfer promise. If so, it may be a binding commitment to the tenant. If the tenant was misled about your commitment, they could complain to the housing ombudsman.
Catherine Hand: Partner at solicitor Jenkins & Hand
You are correct on your final point. Section 122 of the 1985 Housing Act makes it clear that the "relevant time" for right-to-buy purposes is when the tenant's written notice is served on the landlord.
John Bryant: Policy officer, National Housing Federation
A statutory duty exists on local authorities to respond to a right-to-buy application within four weeks of receiving notification.
Once the authority has confirmed the right to buy, its responsibilities for maintenance can be met by responding only to day-to-day and emergency repairs, excluding improvement works. The valuation must be assessed as at the date of receipt of the right-to-buy application. Therefore erecting an "extensive and costly fence", after confirmation to the tenant, arguably would result negatively against the authority.
Richard Kemp: Executive member for housing & neighbourhood services in the Liverpool cabinet
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