This item is Part 1 of our free training material for homelessness officers.
In this free series of useful cases on homelessness prevention we invite you to look afresh at the possibilities for prevention outside of the normal tick-box of finding an applicant somewhere else to live or topping up their rent shortfall with DHP.
These are some of the legal routes available to you if you can ask the right questions.
S 175 Housing Act 1996:
(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he—
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,
(b) has an express or implied licence to occupy, or
(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.
A tenant or a homeowner has the right to remain in their property until the landlord or the lender has obtained possession in the courts. Therefore, enforcing their rights to remain in the property are key to hanging onto their home.
If the landlords or the lender gets the paperwork or process wrong then possession applications should fail and, believe me, they do get them wrong more than they get them right and in innumerable ways.
Chalmiston Properties Ltd v. Boudia Barnet County Court (2015) – deposit returned just 1 day after serving s21 makes the notice invalid.
A county court case so not true case law but it does emphasise the principal that a section 21 will not be valid if an unprotected deposit is not returned to the tenant before service of notice.
Here the landlords failed to protect the deposit in time but protected it much later with DPS.
On the 10th February 2015 the landlords contacted the DPS and asked them to return the deposit to the tenant.
On the 12th February 2015 the DPS contacted the landlord and said the deposit had been returned to the tenant through a bank transfer.
On the 14th February 2015 the tenant received the S21 notice
On the 15th February the deposit arrived in his bank account
Judge held that as the notice was served before the tenant had his money returned the s21 notice was invalid and the possession application failed.
Moral of the tale: Check dates of deposit protection very carefully. Mr Boudia may have made a homelessness application which the council may have accepted, citing Paragraph 8.32 of the Homelessness Code of Guidance but in actual fact he still occupied his home “as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.”
Enfield LBC v. Devonish & Sutton (1997) CA – notice served on a secure tenant must be considered properly served.
Mr Devonish was Enfield’s sole tenant and Ms Sutton his partner, living in the property as his licensee.
They split and he moved out leaving Ms Sutton in the home.
The council served notice on Mr Devonish by posting it through his letterbox, even though he had told them he was no longer living there.
The county court judge granted possession but Ms Sutton took it to the court of appeal who decided that the notice had not been properly served because it had not been brought to the attention of the tenant, Mr Devonish.
Under Section 196 (5) of the Law of Property Act 1925 a notice can be considered served if it was left at the last known place of abode of the tenant (or with their spouse or servant) but only if it says so in the tenancy agreement.
In this case it didn’t so the CA decided it had not been served and as a consequence the possession order was discharged.
Moral of the tale: Don’t take it on the chin just because a possession order has already been granted. If a homelessness prevention officer took the time to look at the tenancy agreement and asked about the notice then they would have picked up that the applicant is still “entitled to occupy by virtue of an interest in it”.
Woolwich Building Society v. Dickman (1996) All ER 204; CA – Mortgage lenders having to take on tenants.
The borrower was granted a mortgage of a property with sitting tenants on the condition that the mortgage would only be granted if the tenants signed forms of consent saying their interests in the tenancy were subordinate to the lender’s right to possession.
Meaning if the landlord defaulted on the mortgage and the lender sought possession the tenants couldn’t defend.
The landlord did default and did not himself defend repossession but the tenants did and it ended up in the court of appeal who decided that the Woolwich BS could not gain possession against the tenants unless there was a ground available for possession and it was reasonable to make the possession order.
The consent orders didn’t stand because the courts held that the tenant’s had an overriding interest under s 70 (1) g; of the Land Registration Act 1925 and that accordingly the building society’s charge was subject to the tenancy that was already in existence.
The Dickmans were not homeless for the same reason that Ms Sutton above was not homeless, they were “Entitled to occupy by virtue of an interest in it or by virtue of an order of a court”
Moral of the tale: Don’t think that just because it is a mortgage lender who is applying for possession that things are above board. They are often worse than landlords. They were trying it on here. You cant sign away statutory tenancy rights to another party.
In part 2 we will look at other ways that homelessness can be prevented using an understanding of legal points relating to possession proceedings and the finer points of occupiers rights.
If you want practical, hands-on training on matters relating to this approach to homelessness prevention then look at our courses on: