This item is Part 4 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 (3)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.
Often a landlord will begin possession proceedings based on an assumption that the occupier holds a different kind of occupation agreement than they actually do.
In England there are around 25 different types of tenancy and licence agreement that a person can occupy under.
Each has its own rights and obligations and each requires a specific possession procedure.
If the possession procedure doesn’t fit the type of tenure then the proceedings will fail and the person will retain their home, because they are still “entitled to occupy by virtue of an interest in it”.
It is crucial to recognise that a person’s ‘Security of tenure’ is not determined by what is written on their agreement but by the facts surrounding the circumstances of their letting.
Street v Mountford is the obvious ‘Go to’ but what about the others?
Antoniades v. Villiers and Bridger (1990) – landlord trying to create licenses by written agreement ignoring the facts.
Mr Villiers and Mr Bridger took on a property and were given two separate written contracts titled ‘Licence agreements’, which denied that the ‘Licensees’ had exclusive possession of the rented property as a whole.
Shortly after moving in they approached the landlord and asked to have a double bed put in. The landlord complied but this request sent a message to legal world that he knew that the occupiers were a couple, not two separate licence holders.
Additionally the layout of the accommodation played a part in determining the reality of the set-up. The flat was too small to share with a stranger and the fact that the landlord provided a double bed on request indicated that he knew the property was a joint letting.
The courts referred to the ‘Artificiality’ of the written agreements and to the actual ‘Substance and reality’ of the circumstances, deeming the letting a joint tenancy, not a licence, therefore a possession order would be needed to end the arrangement and render the persons homeless.
Moral of the tale: Understand the basic difference between a tenancy and a licence. The person you are interviewing may have more legal rights to remain than you think. Don’t get hung up on what is written on an agreement. If you are shown a licence agreement ask a few more questions about what they rent.
Royal Philanthropic Society v. County (1986) CA – A school house master was a tenant.
Sounding like a character from ‘Goodbye Mr Chips’ Mr County was a live-in housemaster, occupying a room in a dorm for a small charge for heating, lighting etc.
He married and the school provided a small house a couple of miles away on the same arrangement of basically free accommodation but with small charges.
He stopped working for the school and so the landlords began possession action on the basis that he was a licensee, occupying the house on the same terms as the room.
The county court found for the school but plucky Mr County took it to the court of appeal where the school had four arguments:
- They were not in the business of providing accommodation
- The rent was very low
- His original arrangement was as a licensee in the room
- The letting arrangement was an informal one.
Mr County cited Street v Mountford (1986)
- Rent or service due
- For a clear term
- Exclusive occupation.
The CA agreed that a tenancy was in place not a licence.
Moral of the tale: Always look beyond the agreement or the reasons for seeking possession and consider the circumstances in place. The landlords will often get it wrong,
Nunn v. Dalrymple (1989) CA – You can still have a tenancy even when there is a family arrangement.
The Dalrymples were council tenants but they gave it up to move into a farm cottage owned by a close relative with no written tenancy agreement, paying £12 per week.
Mr Nunn later tried to evict them on the basis that the arrangement was informal with no written agreement, which brings us straight back to Street v. Mountford again;
- Rent or service – £12
- Clear term – per week
- Exclusive occupation –not sharing with landlord or others.
Judge decided a tenancy was in force, the lack of a written agreement and the fact that the landlord was a relative being neither here nor there.
Moral of the tale: Whilst family arrangements can mean that there is no intention to create a tenancy it isn’t always automatically the case. You need to look at fact and degree.
In part 5 we will look at other ways that homelessness can be prevented using an understanding of legal points relating to whether or not a person is really threatened with homelessness within the next 28 days.
If you want practical, hands-on training on matters relating to this approach to homelessness prevention then look at our course on: