15/04/2020

Assortment – Priorities, and FAQS

Priorities

In case you hadn’t seen it already, HMCTS are publishing a daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak. This includes civil (County) court listing priorities. As of 15 April 2020, “Priority 1 – work that must be done” includes:

Homeless Applications
Injunctions (and return dates for ex parte injunctions) – with a real time element, such as noise or interference with property
Anti-Social Behaviour/Harassment injunctions (not ancillary to possession)
Applications to stay enforcement of existing possession orders
Any applications in cases listed for trial in the next three months
Any applications where there is a substantial hearing listed in the next month.
All Multi Track hearings where parties agree that it is urgent (subject to triage).
Appeals in all these cases

“Priority 2 – work that may be done” includes:

Infant and Protected Party approvals (children could attend by Skype)
Applications for summary judgement for a specified sum
Applications to set aside judgement in default
Applications for security for costs
All small claim/fast track trials where parties agree it is urgent (subject to triage)
Preliminary assessment of costs
Appeals in all these cases

Anything else, it appears, is unlikely to happen. Which is not quite my experience so far.

FAQs

For many, many months, this site has had a least one person arrive via a search for “how to take my ex off the tenancy”, or “can my ex take my tenancy” or “who will get my flat if we break up” or many other variations on the same theme. The ‘take their name off the tenancy’ kind of search is particularly common. It struck me that there is not much in the way of simple information about what happens to tenancies in a relationship breakdown out there (partly because it is sometimes horribly complicated). Even the DWP is confused, calling a situation where one joint tenant has left an ‘untidy tenancy’, and refusing to cover the remaining tenant for the full rent, despite their full (joint and several) liability for it and that being The Law.

The upshot, after a long bank holiday weekend not going anywhere, is a Relationship Breakdown and Tenancies FAQ. This is not detailed, there are far too many housing and family law complications to go into, but it is intended to set out the basic position – what might need to be done, and done urgently, and what can’t be done – for a non-legal audience (and some advisors and lawyers may also find it useful). I’ve included some links to sources of advice and support, particularly for those facing domestic abuse, where the housing situation is most  urgent and difficult. Any corrections welcome.

What it does illustrate is that there is a difficult point where housing law problems only have family law solutions, and that perhaps (and I include myself in this) neither housing lawyers or family lawyers are, (generally and with lots of exceptions), quite alert to the complexities. Eg Matrimonial Causes Act only works where a tenancy is capable of being assigned – and not all tenancies can be assigned. I do think a legal guide for both family and housing lawyers might be a good idea. If anyone else wants to pick up that idea and run with it, they are very welcome…

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.

11 Comments

  1. Ben Reeve-Lewis

    Giles, sorry to sound dumb. I’ve read this before “Harassment injunctions (not ancillary to possession)” but what does this mean? Given my need for injunctions is for re-entry following illegal eviction, not part of possession cases

    Reply
  2. Joanne

    Giles, following on from my previous posted comment, I continue to issue proceedings during the current 90 day stay, especially cases with high arrears going back long before the Coronavirus outbreak and to prevent introductory tenancies in arrears becoming secure.
    I have today received four orders from the court vacating first hearings fixed for 21st April, which was, of course, expected. However, the hearings have been stayed far beyond the 90 days to 30th October. On expiry of this extended stay period, I then have to make applications to have the cases re-listed for hearing. It goes without saying that this will have a serious impact upon our housing revenues account, as arrears on the majority of the accounts (if not all) will be through the ‘roof’ by the time we get before a District Judge. Have I missed an update? I am eager to know whether other social housing landlords are being subjected to an extended stay period in their local courts, before I return to mine to question the matter.

    Reply
    • Giles Peaker

      There has been no change that I am aware of. PD 51Z remains as is.

      Reply
  3. John-Paul

    Thank you for the FAQ on Relationship Breakdown and Tenancies. It is a really helpful resource to point people towards when people have related questions (may not be as popular as your s21 checker, but it might be close).

    I think it might be helpful to highlight that if the tenancy is in a fixed term, unless there’s a break clause, it can’t be ended by only one of the tenants. So the person who wants out can’t unilaterally achieve that – they can’t even serve notice until after the end of the fixed term.

    It would be helpful if someone would amend the 1988 housing act so that a periodic tenancy only arose for a joint tenancy if all of the tenants were resident when the fixed term ends or would not arise if one of the tenants had served notice that it shouldn’t. It’s manifestly unfair that anyone who signs up for a six month joint tenancy is really agreeing to a minimum of 8 months if the other joint tenants prefer that.

    Reply
    • Giles Peaker

      Thanks.

      The FAQ does say

      But it only takes one joint tenant to end the tenancy – the whole tenancy for everyone – at least if the fixed term of any tenancy is over and/or the tenancy is periodic, or if a break clause allows earlier termination by one joint tenant.

      and also

      Where the ex has left and it is a joint tenancy, you are at risk of the ex terminating the tenancy without you being able to do anything about it (assuming it is a periodic tenancy and not in a fixed term).

      But perhaps I can emphasise that more.

      (And it would be 7 months in your example, I think – the tenant notice only requires one month, not two.)

      Reply
      • Michael Barnes

        The 8 months is correct because S5(5) Housing Act 1988 says notice given on or before the first day of the SPT has no effect, so 1 month notice cannot be given to end the SPT before the end of the second month.

        Reply
        • Giles Peaker

          Not if notice served on day one of the SPT (and would have to be personal service). Notice period includes the day of service. S.5(5) does not rule out service on day one.

        • Michael Barnes

          S5(5) says:
          “If, on or before the date on which a tenancy is entered into or is deemed to have been granted as mentioned in subsection (3)(b) above, the person who is to be the tenant under that tenancy—

          (a)enters into an obligation to do any act which (apart from this subsection) will cause the tenancy to come to an end at a time when it is an assured tenancy, or

          (b)executes, signs or gives any surrender, notice to quit or other document which (apart from this subsection) has the effect of bringing the tenancy to an end at a time when it is an assured tenancy,

          the obligation referred to in paragraph (a) above shall not be enforceable or, as the case may be, the surrender, notice to quit or other document referred to in paragraph (b) above shall be of no effect.”

          How does that “not rule out service on day 1”?

        • Giles Peaker

          SPT arises at midnight. But, I’ll agree you are right on the month – period doesn’t include the date of expiry, so a month notice can’t be served on first to expire last of the month. Fair enough, 8 months in effect, on a monthly tenancy.

  4. Paul Ives

    Thank you Giles for the interesting FAQ on Relationship breakdown and tenancies. A useful resource for what is often a complex area. Similarly, I’ve just had to advise friends about their rights in a lodger arrangement where parties mental health is sub-optimal from the various pressures and stresses of living under the lockdown. Sometimes the legal route needs to be explored but we must not forget that we are dealing with complex humans beings and relationships in a partially locked-down legal system. I am pleased to see that you share my feeling that negotiation is also one of the important tools in the toolkit and may also bring faster results..!

    We have done work on quite a few of these FAQ resources in the past – both for Letting Handbook and Letting Centre website. You have laid down the gauntlet for someone to take on the project which I don’t think is for us for a number of reasons, but we have researched some of the law in these areas at length, and would be happy to contribute to those topic areas where we have experience or strengths. Relationship breakdown, I agree, is an important and common one, and this is an excellent start but there are other areas such as bereavement and inheritance of tenancies, and in the current context of COVID, we are getting many calls on withdrawal from contract due to job loss or rent reduction negotiations, and whether these might have unexpected impacts where tenancies are underwritten with rent guarantees. Happy to contribute and/or share this material if it could be useful to NL visitors and readers.

    Reply

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