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21/02/2011

Well I do declare

Hat tip to Christian at the Estates Gazette Law blog for this one.

Crown Estates are to sell their London ‘social’ residential estates to Peabody Trust. It appears that they are now urgently seeking a tenant to bring forward a test case for a declaration in the High Court as to the effect of sections 35(5) and 38(1)&(3) of the 1988 Housing Act on its 320 Rent Act regulated tenants on transfer.

The Commissioners of the Crown Estates believe that the upshot would be that the protected tenants become secure tenants, while tenants groups said they had advice that the result would be assured tenancies. While Peabody had covenanted to treat the tenants as protected tenants, there were still issues as to the operation of  rent reviews and possession proceedings.

The Crown Commissioners applied to the High Court for a representation order, to represent the tenants’ interests. This was rebuffed as ‘extremely unusual’ by Mann J, who gave them until 4 March to find a tenant to act, on the basis that this tenant should be assured that their costs would be met.

This looks like it should be interesting. Not least because it would appear in part to bear on whether Peabody Trust is a public body. Hmmm.

For anyone who, like me, needs to look up remind themselves of the relevant sections, here they are..

S.35(5) says:

If, on or after the commencement of this Act, the interest of the landlord under a protected or statutory tenancy becomes held by a housing association, a housing trust or the Housing Corporation or, where that interest becomes held by him as the result of the exercise by him of functions under Part III of the Housing Association Act 1985, the Secretary of State, nothing in the preceding provisions of this section shall prevent the tenancy from being a housing association tenancy or a secure tenancy and, accordingly, in such a case section 80 of the Housing Act 1985 (and any enactment which refers to that section) shall have effect without regard to the repeal of provisions of that section effected by this Act.

S.38(1) says:

The provisions of subsection (3) below apply in relation to a tenancy which was entered into before, or pursuant to a contract made before, the commencement of this Act if,—

(a) at that commencement or, if it is later, at the time it is entered into, the interest of the landlord is held by a public body (within the meaning of subsection (5) below); and

(b) at some time after that commencement, the interest of the landlord ceases to be so held.

S.38(3):

Subject to subsections (4) , (4ZA), (4A), (4BA)] and (4B),] below on and after the time referred to in subsection (1)(b) or, as the case may be, subsection (2)(b) above—

(a)the tenancy shall not be capable of being a protected tenancy, a protected occupancy or a housing association tenancy;

(b)the tenancy shall not be capable of being a secure tenancy unless (and only at a time when) the interest of the landlord under the tenancy is (or is again) held by a public body; and

(c)paragraph 1 of Schedule 1 to this Act shall not apply in relation to it, and the question whether at any time thereafter it becomes (or remains) an assured tenancy shall be determined accordingly.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

5 Comments

  1. chief

    I don’t think Peabody can be a public body for the purposes of s.38 – see s.38(5). Interesting to see how s.35 will be reconciled with s.38.

    Reply
    • NL

      Ooops Yes. But also 38(4A)? This needs more time to piece together than I’ve got right now.

      Reply
      • J

        And, at the risk of being ultra picky, references to the Housing Corp are now to the Regulator of Social Housing – see Transfer of Housing Corporation Functions (Modifications and Transitional Provisions) Order 2008, SI 2008/2839, art.3 and Sch and Sch.2, Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010 (SI 2010/866)

        Reply
      • chief

        Don’t think that subs.(4A) applies, because I don’t think it comes under subs.(4) (“Commission for the New Towns or a development corporation”), but it is a nightmare. I can see why they want the High Court to decide the issue for them once and for all.

        Reply
        • NL

          Right again. I clearly need my first coffee badly.

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