Comments on: Possession and human rights - blimey! http://nearlylegal.co.uk/blog/2008/05/possession-and-human-rights-blimey/ The Joy of Housing Law Thu, 28 Aug 2008 19:23:45 +0000 http://wordpress.org/?v=2.6 By: Nearly Legal http://nearlylegal.co.uk/blog/2008/05/possession-and-human-rights-blimey/#comment-6577 Nearly Legal Tue, 20 May 2008 12:31:32 +0000 http://nearlylegal.co.uk/blog/?p=468#comment-6577 Many thanks, Rosaleen. I didn't know that the Lords had already heard Doherty. The inviting of submissions on McCann is intriguing - someone is going to be having fun before 2 June! Many thanks, Rosaleen. I didn’t know that the Lords had already heard Doherty. The inviting of submissions on McCann is intriguing - someone is going to be having fun before 2 June!

]]> By: Rosaleen Kilbane http://nearlylegal.co.uk/blog/2008/05/possession-and-human-rights-blimey/#comment-6575 Rosaleen Kilbane Tue, 20 May 2008 11:56:12 +0000 http://nearlylegal.co.uk/blog/?p=468#comment-6575 Doherty is my colleague Chris Johnson's case but this is his last day before he goes off on holiday, with the usual associated madness, so, just for info, Doherty was heard by a panel of five Law Lords in mid March. Speeches were not delivered before McCann. They have now invited written submissions in the light of McCann by 2nd June. Can't say much more than that at the moment. Doherty is my colleague Chris Johnson’s case but this is his last day before he goes off on holiday, with the usual associated madness, so, just for info, Doherty was heard by a panel of five Law Lords in mid March. Speeches were not delivered before McCann. They have now invited written submissions in the light of McCann by 2nd June. Can’t say much more than that at the moment.

]]> By: Ben http://nearlylegal.co.uk/blog/2008/05/possession-and-human-rights-blimey/#comment-6558 Ben Tue, 20 May 2008 06:05:15 +0000 http://nearlylegal.co.uk/blog/?p=468#comment-6558 Yes that clarifies it for me, particularly the last sentence. As a matter of interest, on the same point, I did, on several occasions encounter situations where the neighbourhood office found out about sub-lets and told the head tenant that they had to evict the sub-tenant, if they wanted to keep their home. harassment and threats of illegal eviction ensued and I was called in. Dodgy or what Yes that clarifies it for me, particularly the last sentence.

As a matter of interest, on the same point, I did, on several occasions encounter situations where the neighbourhood office found out about sub-lets and told the head tenant that they had to evict the sub-tenant, if they wanted to keep their home. harassment and threats of illegal eviction ensued and I was called in. Dodgy or what

]]> By: Nearly Legal http://nearlylegal.co.uk/blog/2008/05/possession-and-human-rights-blimey/#comment-6539 Nearly Legal Mon, 19 May 2008 18:16:44 +0000 http://nearlylegal.co.uk/blog/?p=468#comment-6539 Ben, I see where you are going, but surely this is a classic land law issue - the sub-tenancy is only as good as the head tenancy. So the sub-tenant might have a valid AST against the head tenant, but only so long as the head tenant holds an interest in the property (so pre-NTQ, where a common law tenancy still exists for the tenant. After NTQ, I doubt that the now ex-tenant is capable of creating a valid interest - the 'landlord' cannot give what they have not got). Sure, the AST is breached when the head tenant loses the possession claim - if not earlier - but that is a problem for the sub-tenant and the head tenant, not the Local Authority landlord. Unless, of course, the Local Authority has explicitly or knowingly condoned the sub-tenancy. The sub-tenant's recourse is, as far as I can see, only against the tenant, in contract, in the same way as an AST tenant who was given a tenancy by a landlord who knew the property was to be repossessed by a mortgage company. Granted that the property could be considered the sub-tenant's home, but it is not the LA that is the cause of their eviction - it is the tenant as landlord. Ben, I see where you are going, but surely this is a classic land law issue - the sub-tenancy is only as good as the head tenancy. So the sub-tenant might have a valid AST against the head tenant, but only so long as the head tenant holds an interest in the property (so pre-NTQ, where a common law tenancy still exists for the tenant. After NTQ, I doubt that the now ex-tenant is capable of creating a valid interest - the ‘landlord’ cannot give what they have not got).

Sure, the AST is breached when the head tenant loses the possession claim - if not earlier - but that is a problem for the sub-tenant and the head tenant, not the Local Authority landlord. Unless, of course, the Local Authority has explicitly or knowingly condoned the sub-tenancy.

The sub-tenant’s recourse is, as far as I can see, only against the tenant, in contract, in the same way as an AST tenant who was given a tenancy by a landlord who knew the property was to be repossessed by a mortgage company.

Granted that the property could be considered the sub-tenant’s home, but it is not the LA that is the cause of their eviction - it is the tenant as landlord.

]]> By: Ben http://nearlylegal.co.uk/blog/2008/05/possession-and-human-rights-blimey/#comment-6536 Ben Mon, 19 May 2008 15:59:47 +0000 http://nearlylegal.co.uk/blog/?p=468#comment-6536 Yes, I get your point. But I still think there could be an anomoly in cases of this kind. I accept that I'm sort of thinking out loud on this, with no definative answer. Consider this proposition. A secure tenant vacates to sub-let, givng rise to what is probably a non-secure tenancy. So Section 83 proceedings are unnecessary and a standard NTQ will be sufficient for the LA. The sub-tenant however, may well HAve a valid AST, or even Assured, or, god forbid, pre 88 act, a protected tenancy, depending on when they moved in. So the sub-tenant may now have greater security than the council tenant who gave it all up. I am not convinced, as I think my way through this bloody tortuous argement, that the sub tenant's occupancy is solely determined by the council tenant's security, insofar as if the council terminates it, it would automatically end the sub-tenant's security under the legislation that creates it. If, as I have argued in the field, on many an occasion, (and I accept that maybe it was a lucky blag) that an AST created by a dodgy council tenant, acting as a landlord is a valid agreement, based on landlord status and date of tenancy.Does that give the sub-tenant greater security than the recently vacated council tenant? Which, consequently brings us back to McCann and proportionality Yes, I get your point. But I still think there could be an anomoly in cases of this kind. I accept that I’m sort of thinking out loud on this, with no definative answer.

Consider this proposition. A secure tenant vacates to sub-let, givng rise to what is probably a non-secure tenancy. So Section 83 proceedings are unnecessary and a standard NTQ will be sufficient for the LA. The sub-tenant however, may well HAve a valid AST, or even Assured, or, god forbid, pre 88 act, a protected tenancy, depending on when they moved in. So the sub-tenant may now have greater security than the council tenant who gave it all up.

I am not convinced, as I think my way through this bloody tortuous argement, that the sub tenant’s occupancy is solely determined by the council tenant’s security, insofar as if the council terminates it, it would automatically end the sub-tenant’s security under the legislation that creates it.

If, as I have argued in the field, on many an occasion, (and I accept that maybe it was a lucky blag) that an AST created by a dodgy council tenant, acting as a landlord is a valid agreement, based on landlord status and date of tenancy.Does that give the sub-tenant greater security than the recently vacated council tenant? Which, consequently brings us back to McCann and proportionality

]]> By: Nearly Legal http://nearlylegal.co.uk/blog/2008/05/possession-and-human-rights-blimey/#comment-6524 Nearly Legal Mon, 19 May 2008 10:20:36 +0000 http://nearlylegal.co.uk/blog/?p=468#comment-6524 Ben, I put it badly. What I meant was the claim for possession is against the head tenant. The sub-tenant's occupation relies on that of the tenant. So no separate possession claim is or needs to be brought against the sub-tenant. Whether the ECtHR would count this as a procedural defect would have to be a matter for another case, I think. As you say, the sub-tenant is, at best, joined to the claim, but not as defendant. The sub-tenant's recourse is, in the first place, against the tenant and no Art 8 considerations would apply there, or so it appears. Ben, I put it badly. What I meant was the claim for possession is against the head tenant. The sub-tenant’s occupation relies on that of the tenant. So no separate possession claim is or needs to be brought against the sub-tenant. Whether the ECtHR would count this as a procedural defect would have to be a matter for another case, I think. As you say, the sub-tenant is, at best, joined to the claim, but not as defendant. The sub-tenant’s recourse is, in the first place, against the tenant and no Art 8 considerations would apply there, or so it appears.

]]> By: Ben http://nearlylegal.co.uk/blog/2008/05/possession-and-human-rights-blimey/#comment-6520 Ben Mon, 19 May 2008 09:01:09 +0000 http://nearlylegal.co.uk/blog/?p=468#comment-6520 Hi Nearly? When I worked as Tenancy Relations Officer for Lewisham council, I got involved in loads of unlawful sub-lets of council properties. Always advising the neighbourhood housing teams that they had to evict their tenant and the sub-tenant on the same application. The sub-tenant, admittedly, having no defence to proceedings. My argument was always that they could not take action against the sub-tenant whilst leaving their person in possession.You say that the LA doesnt have to bring proceedings against the sub-tenant. Are you suggesting that they can do a lock change on them? My argument was always strongly that they couldnt. The landords in such cases, when they know of the sub-letting, usually send out papers to the named Tenant and 'Any other occupiers' to place the sub-t's on notice that action is going ahead. When defending such possession proceedings I have used county court rules to get the sub-t joined to the proceedinsg so that they can have a right to speak and therefore, buy time to find somewhere else. This is why I think that McCann case could open a proportionality defence for the sub tenant. The common scenario being that the council's tenant vacates in order to sub-let. So by defintion is not occupying as sole or principle home and therefore goes into tenancy limbo. The sub tenant has obtained the property (in Lewisham, often through a high street accommodation agency) in all good faith and is given an AST on payment of deposit and rent in advance. Who now has the greater defence, given the proportionality factor? Or is this where the pursuit of a legitimate aim bit kicks in? Hi Nearly? When I worked as Tenancy Relations Officer for Lewisham council, I got involved in loads of unlawful sub-lets of council properties. Always advising the neighbourhood housing teams that they had to evict their tenant and the sub-tenant on the same application. The sub-tenant, admittedly, having no defence to proceedings.

My argument was always that they could not take action against the sub-tenant whilst leaving their person in possession.You say that the LA doesnt have to bring proceedings against the sub-tenant. Are you suggesting that they can do a lock change on them? My argument was always strongly that they couldnt.

The landords in such cases, when they know of the sub-letting, usually send out papers to the named Tenant and ‘Any other occupiers’ to place the sub-t’s on notice that action is going ahead. When defending such possession proceedings I have used county court rules to get the sub-t joined to the proceedinsg so that they can have a right to speak and therefore, buy time to find somewhere else.

This is why I think that McCann case could open a proportionality defence for the sub tenant. The common scenario being that the council’s tenant vacates in order to sub-let. So by defintion is not occupying as sole or principle home and therefore goes into tenancy limbo. The sub tenant has obtained the property (in Lewisham, often through a high street accommodation agency) in all good faith and is given an AST on payment of deposit and rent in advance. Who now has the greater defence, given the proportionality factor? Or is this where the pursuit of a legitimate aim bit kicks in?

]]> By: Nearly Legal http://nearlylegal.co.uk/blog/2008/05/possession-and-human-rights-blimey/#comment-6492 Nearly Legal Sun, 18 May 2008 21:19:48 +0000 http://nearlylegal.co.uk/blog/?p=468#comment-6492 Ben, In the illegal sublet scenario, I'm really doubtful that the McCann argument would extend to the illegal subtenant - the LA doesn't have to bring possession proceedings against the illegal subtenant, after all, just the head tenant. Even it did apply to the subtenant, a situation in which eviction would be arguably disproportionate would be vanishingly exceptional. Ben,

In the illegal sublet scenario, I’m really doubtful that the McCann argument would extend to the illegal subtenant - the LA doesn’t have to bring possession proceedings against the illegal subtenant, after all, just the head tenant.

Even it did apply to the subtenant, a situation in which eviction would be arguably disproportionate would be vanishingly exceptional.

]]> By: Housinganger http://nearlylegal.co.uk/blog/2008/05/possession-and-human-rights-blimey/#comment-6491 Housinganger Sun, 18 May 2008 21:04:25 +0000 http://nearlylegal.co.uk/blog/?p=468#comment-6491 Whilst it's certainly not boring it really shouldn't be this complicated. Whilst I agree it is a fascinating subject I'd much rather it be far more simple for the sake of both landlords and tenants (and well my brain to). Whilst it’s certainly not boring it really shouldn’t be this complicated. Whilst I agree it is a fascinating subject I’d much rather it be far more simple for the sake of both landlords and tenants (and well my brain to).

]]> By: Ben http://nearlylegal.co.uk/blog/2008/05/possession-and-human-rights-blimey/#comment-6489 Ben Sun, 18 May 2008 16:40:17 +0000 http://nearlylegal.co.uk/blog/?p=468#comment-6489 Excellent. I know that housing associations have ground 14a at their disposal, but in my experience they tend to do what Birmingham did in McCann to save time and costs. A further implication occurs to me about this though. The impact on unlawful sub-tenancies, where they have been let by either council or housing association tenants. The mesne tenant no longer occupies as their sole or principle home, bringing in common law avenues for eviction of both parties. Which, given the McCann argument, similarly suggests an ECHR defence for both parties. Wow. This is certainly a cat/pidgeon scenario. Since the N28 debacle you cant say that housing law has been boring Excellent. I know that housing associations have ground 14a at their disposal, but in my experience they tend to do what Birmingham did in McCann to save time and costs.

A further implication occurs to me about this though. The impact on unlawful sub-tenancies, where they have been let by either council or housing association tenants. The mesne tenant no longer occupies as their sole or principle home, bringing in common law avenues for eviction of both parties. Which, given the McCann argument, similarly suggests an ECHR defence for both parties.

Wow. This is certainly a cat/pidgeon scenario. Since the N28 debacle you cant say that housing law has been boring

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