Too sheltered

My association has48 sheltered flats for the elderly. A resident recently died who held an assured tenancy in a two-bedroom flat designed for wheelchair access. A son still resides in the flat. He has no right of succession under the 1988 Housing Act but the Housing Corporation does express a wish that the same rights be afforded to family members as exist under the 1985 act for secure tenants. Because of our specialist nature, we cannot grant the son tenancy but we are willing to arrange a quid pro quo with the council. The son is reluctant to move but we would rather not go to court to secure vacant possession. Is there another way?

I hate to be mean but if he won’t go you will have to take him to court – and the longer he stays, the harder it will be. You need to start proceedings within 12 months of the death. If you can, try to make sure he has an actual offer of housing from another landlord before you go to court. And make sure you keep all the nice letters you will have written him explaining why he can’t stay. It is a mandatory ground so you should get a possession order – but you need to make sure the court does not see you as the bad guys. Catherine Hand

Passing on arrears

We have recently had a lengthy debate about the responsibility for rent arrears. In cases where a joint tenant has died it seems clear that the surviving tenant is responsible. However in other cases, it would seem that the responsibility for the arrears rests with the estate of the deceased even when the successor inherits a significant financial benefit, such as the right to buy. In such cases is there any way of recovering the arrears from the successor?

There is no decisive case law on the point but a leading housing QC considers that a successor to a rent act tenancy takes the benefit (the tenancy) and the burden (any arrears). There is no reason in principle why that analysis should not apply to secure tenancies. The opposing view is that the arrears at the date of death form part of the deceased tenant’s estate and so must be claimed from the estate.

For a non-statutory succession we would recommend that before approving the succession you request that the successor signs a deed agreeing to pay the arrears.

This may not work with statutory succession because the successor is entitled to the tenancy as of right. But the general view is that an agreement to pay the arrears will suffice although it may be challenged if enforcement action is taken. Rosemary Hart

Gaining access

I am confused by Rosemary Hart’s Think Tank answer on the HT website (HT 31 October 2003), which encourages possession action as opposed to injunctions to gain entry to tenants’ properties. Possessions are lengthy processes whereas injunctive action can be quick and effective and, in some cases, courts have awarded a penal sanction on the back of the action. Also, evicting someone whose only failing may have been to deny entry to a property could create unnecessary displacement and hardship. Can you explain?

An injunction is normally only an interim remedy as part of main proceedings. It is necessary to issue possession proceedings as well as seeking an injunction within those proceedings. Accordingly, there are two issue fees of £130 and double the paperwork.

While an injunction may require that access be given, if it is not, you cannot force access but must issue contempt proceedings (which will incur further cost), the penalty for which is a fine or imprisonment, not actual access. The only guaranteed way of gaining access would be to seek possession for breach of tenancy so that once eviction takes place, access can be secured.

Obviously, one would hope that once proceedings are issued, the tenant would agree to access so that the proceedings can be settled on the basis, for example, of them being withdrawn once access is given.

Although it is not the intention to evict, it often transpires that non access arises out of other issues such as the tenant having sublet the premises, and in those circumstances, possession is appropriate. Rosemary Hart

Source

Housing Today