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Housing Act 1985 Assignment Definition

Assignment, lodgers and sublettingE+W

91 Assignment in general prohibited.E+W

(1)A secure tenancy which is—

(a)a periodic tenancy, or

(b)a tenancy for a term certain granted on or after 5th November 1982,

is not capable of being assigned except in the cases mentioned in subsection (3).

(2)If a secure tenancy for a term certain granted before 5th November 1982 is assigned, then, except in the cases mentioned in subsection (3), it ceases to be a secure tenancy and cannot subsequently become a secure tenancy.

(3)The exceptions are—

(a)an assignment in accordance with section 92 (assignment by way of exchange);

F1[( b )an assignment in pursuance of an order made under—

(i)section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings),

(ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), F2 . . .

(iii)paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents) [F3, or

(iv) Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc. ) ]]

(c)an assignmment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

92 Assignments by way of exchange.E+W

(1)It is a term of every secure tenancy that the tenant may, with the written consent of the landlord, assign the tenancy to another secure tenant who satisfies the condition in subsection (2) [F4or to an assured tenant who satisfies the conditions in subsection (2A)].

(2)The condition is that the other secure tenant has the written consent of his landlord to an assignment of his tenancy either to the first-mentioned tenant or to another secure tenant who satisfies the condition in this subsection.

[F5(2A)The conditions to be satisfied with respect to an assured tenant are—

( a )that the landlord under his assured tenancy is [F6the Regulator of Social Housing, a private registered provider of social housing,]F7. . . a [F8a registered social landlord] or a housing trust which is a charity; and

(b)that he intends to assign his assured tenancy to the secure tenant referred to in subsection (1) or to another secure tenant who satisfies the condition in subsection (2).]

(3)The consent required by virtue of this section shall not be withheld except on one or more of the grounds set out in Schedule 3, and if withheld otherwise than on one of those grounds shall be treated as given.

(4)The landlord may not rely on any of the grounds set out in Schedule 3 unless he has, within 42 days of the tenant’s application for the consent, served on the tenant a notice specifying the ground and giving particulars of it.

(5)Where rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed, the consent required by virtue of this section may be given subject to a condition requiring the tenant to pay the outstanding rent, remedy the breach or perform the obligation.

(6)Except as provided by subsection (5), a consent required by virtue of this section cannot be given subject to a condition, and a condition imposed otherwise than as so provided shall be disregarded.

Annotations:

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Modifications etc. (not altering text)

93 Lodgers and subletting.E+W

(1)It is a term of every secure tenancy that the tenant—

(a)may allow any persons to reside as lodgers in the dwelling-house, but

(b)will not, without the written consent of the landlord, sublet or part with possession of part of the dwelling-house.

(2)If the tenant under a secure tenancy parts with the possession of the dwelling-house or sublets the whole of it (or sublets first part of it and then the remainder), the tenancy ceases to be a secure tenancy and cannot subsequently become a secure tenancy.

94 Consent to subletting.E+W

(1)This section applies to the consent required by virtue of section 93(1)(b) (landlord’s consent to subletting of part of dwelling-house).

(2)Consent shall not be unreasonably withheld (and if unreasonably withheld shall be treated as given), and if a question arises whether the withholding of consent was unreasonable it is for the landlord to show that it was not.

(3)In determining that question the following matters, if shown by the landlord, are among those to be taken into account—

(a)that the consent would lead to overcrowding of the dwelling-house within the meaning of Part X (overcrowding);

(b)that the landlord proposes to carry out works on the dwelling-house, or on the building of which it forms part, and that the proposed works will affect the accommodation likely to be used by the sub-tenant who would reside in the dwelling-house as a result of the consent.

(4)Consent may be validly given notwithstanding that it follows, instead of preceding, the action requiring it.

(5)Consent cannot be given subject to a condition (and it purporting to be given subject to a condition shall be treated as given unconditionally).

(6)Where the tenant has applied in writing for consent, then—

(a)if the landlord refuses to give consent, it shall give the tenant a written statement of the reasons why consent was refused, and

(b)if the landlord neither gives nor refuses to give consent within a reasonable time, consent shall be taken to have been withheld.

95 Assignment or subletting where tenant condition not satisfied.E+W

(1)This section applies to a tenancy which is not a secure tenancy but would be if the tenant condition referred to in section 81 (occupation by the tenant) were satisfied.

(2)Sections 91 and 93(2) (restrictions on assignment or sub-letting of whole dwelling-house) apply to such a tenancy as they apply to a secure tenancy, except that—

(a)section 91(3)(b) and (c) (assignments excepted from restrictions) do not apply to such a tenancy for a term certain granted before 5th November 1982, and

(b)references to the tenancy ceasing to be secure shall be disregarded, without prejudice to the application of the remainder of the provisions in which those references occur.

 

Secure Tenancy

Secure Tenancies are the most common form of tenancies provided by local authorities. The relevant provisions are found in Part IV of the Housing Act 1985 (HA 1985). Amendments have been made by the HA 1988 and HA 1996. To gain possession of a secure tenancy, the landlord must prove one or more of the statutory grounds.

 

Conditions:

To qualify as a secure tenancy, the following conditions must apply:

  1. The Property = The dwelling-house must be let for residential purposes, and let as a separate dwelling.
  2. The Landlord Condition = The landlord must be a Local Authority or other designated public body (as defined by HA 1985 s 80(1))
  3. The Tenant Condition = The tenant must be an individual and occupy the dwelling as his or her only or principal home. If there are joint tenants, each must be an individual, and at least one of them must occupy the dwelling house as his or her only or principal home.

 

Exclusions:

Certain exceptions apply to this qualification. These include:

  • Long tenancies (over 21 years and other limited types)
  • Introductory Tenancies
  • Premises occupied by way of employment
  • Tenancies granted pursuant to a Local Authority's duties to provide temporary accommodation for homeless and asylum purposes.
  • Tenancies of Agricultural holdings and licensed premises
  • Tenancies to which the LTA 1954 PtII Applies (business tenancies)
  • Student lettings

 

Assignment:

Generally, a secure tenancy is incapable if being assigned; any purported assignment will therefore be ineffective and vest nothing in the (purported) assignee. There are three exceptions to this rule: (HA 1985 s.91)

  1. Assignments by way of exchange (s.92)

This right of assignment entitles one secure tenant to exchange his tenancy with another secure or assured tenant. The Landlord's consent is required and may be withheld if the grounds set out in Schedule 3 are made out. The salient grounds are:

  • The tenant or assignee is subject to a possession order
  • Proceedings are pending under grounds 1-6 (with a s83 notice served)
  • The accommodation is inappropriate for the tenant and/or assignee (including too substantial and insubstantial)
  1. Assignments under property adjustment orders in connection with matrimonial proceeding
  2. Assignments to a person who would be qualified to succeed if the tenant had died immediately before the assignment

 

Subletting:

All secure tenancies include a term entitling the tenant to take in lodgers. However, the tenant may not sublet or part possession of part of the dwelling house without the landlord's consent. As normal, consent for this purpose cannot be unreasonably withheld by the landlord.

If the tenant, in breach of this term, sublets or parts with possession without consent, the tenancy loses its secured status, and cannot subsequently become secure. (Accordingly this would give rise to a ground for possession of the property.)

 

Succession:

If the tenant dies, the tenancy will vest in accordance with the statutory rules. There are no statutory succession provision for a fixed term tenancy which will vest in the normal course of administration of the tenant's estate; however, a periodic tenancy is subject to the provisions within HA 1985 s.89. In such a case, the tenancy will vest in any person who is qualified to succeed the dead tenant. A person will be qualified to succeed if:

  1. The person is either the tenant's spouse or another member of the tenant's family. (If the latter, the person must have resided with the tenant for the 12 months prior to the tenant's death),
  2. The person occupied the premises as his or her only or principal home at the tenant's death, and
  3. The tenant was not such a successor him or herself. (Accordingly, only one statutory succession is permitted - though if the deceased tenant succeeded at a time when the tenancy in question was not secure, a second succession will be allowed - Birmingham CC v Walker)

If no such qualified person exists, the normal rules of administration of estates will apply.

 

Rent:

Secure tenancies are not subject to any restrictions on rent which can be charged.

 

Termination and Possession:

By Tenant = The tenant is not prohibited from terminating the tenancy in accordance with the common law; either by serving a notice to quit a periodic tenancy, exercising a break clause in a fixed tenancy, or in either case bilaterally surrendering the tenancy.

By Landlord = A secure tenancy cannot be brought to an end by the landlord except by a court order. The method by which this is achieved varies depending on whether the tenancy is fixed or periodic.

The landlord must obtain a termination order under s.82. This involves validly forfeiting the property (see here), after which the court will make an order terminating the tenancy on a specified date. Upon this date the fixed term tenancy will end and become a periodic secure tenancy under s86(1)(b).

To end this periodic tenancy, the landlord will then have to follow the procedure outlined below. It should be noted that there is no requirement for two separate hearings; a s83 notice may be served alongside the (NTQ) of the fixed term tenancy.

 

The landlord must follow the notice procedure contained in s.83 and serve a Notice of Seeking Possession (NoSP) on the tenant. The NoSP must be in the prescribed form and must:

  1. Specify a date after which the proceedings may be begun (this date must be no earlier than the tenancy could have been determined at common law)

  2. Specify the ground or grounds on which it seeks possession, and give particulars of the ground(s)

The NoSP may be dispensed with if the court considers it just and equitable to do so (s83(1)(b))

 

Grounds for Possession

These Grounds are contained in Schedule 2 HA 1985. The grounds fall into 3 categories:

Grounds 1-8 (Discretionary) = The court must be satisfied that it is Reasonable to make the possession Order

Grounds 9-11 (Mandatory) = The court must be satisfied that suitable alternative accommodation will be available for the tenant

Grounds 12-16 (Discretionary) = The court must be satisfied that it is Reasonable to make the possession Order and that suitable alternative accommodation will be available.

 

Ground 1 - Rent Arrears or Breach of Obligation:

The tenant is in arrears with payment of rent or has breached an obligation of the tenancy

Ground 2 - Nuisance and Behaviour:

The tenant or person residing in or visiting the dwelling house has either:

  1. caused nuisance or annoyance to a person residing, visiting or otherwise engaging in lawful activity in the locality; or
  2. been convicted of using the dwelling house or allowing it to be used for immoral or illegal purposes, or been convicted of an arrestable offence committed in, or in the locality of, the dwelling-house.
If this ground is specified, the s.83 NoSP differs from normal. The notice must state that possession proceedings may be begun immediately and must specify the date sought by the landlord for the tenant to give up possession (s.83(3)).


Ground 2A - Domestic Violence:

The dwelling-house was occupied by a married couple or couple living together as husband and wife and,

  1. one or both of the partners is a tenant of the dwelling house,
  2. one partner has left because of violence or threats of violence by the other towards them or an occupying member of their family, and
  3. the court is satisfied that the leaving partner is unlikely to return

The court must be satisfied that the main reason for the partner leaving was the domestic violence (Camden LBC v Mallett [2001] 33 HLR 204)

If this ground is specified, there is an additional requirement that the landlord should serve notice (or take all reasonable steps to serve notice) on the partner who has left. This notice should inform the leaving partner of the possession proceedings and the grounds on which they have been brought (s83A)


Ground 3 - Condition of Premises:

The condition of the dwelling-house or any of the common parts has deteriorated owing to acts of waste, neglect, or default of the tenant or a person residing with the tenant. If the latter is a lodger or sub-tenant the court must be satisfied that the tenant has failed to take reasonable steps to ensure their removal.


Ground 4 - Condition of Furniture:

The condition of furniture, provided by the landlord, has deteriorated owing to ill-treatment by the tenant or a person residing with the tenant. If the latter is a lodger or sub-tenant the court must be satisfied that the tenant has failed to take reasonable steps to ensure their removal.


Ground 5 - Misrepresentation by Tenant:

The tenant, or someone acting on his behalf, was guilty of a fraudulent misrepresentation in acquiring the tenancy. The landlord must prove that:

  1. The statement was false,
  2. The tenant knew that the statement was false, or was reckless to its truth, and
  3. This induced the granting of the tenancy

This ground is only available against the original tenant and will be of no avail if the tenancy has been assigned (even if the assignee was party to the fraud) See LB of Islington v Uckac


Ground 6 - Improper Assignment:

The tenancy was assigned to the tenant by way of exchange under s92 (see above assignment) and a premium was paid in relation to this assignment.


Ground 7 - Conduct in Employment related Tenancy:

The dwelling-house forms part of a building used mainly for purposes other than housing and,

  1. the tenancy arose in consequence of the tenant's (or a predecessor's) employment by the landlord or local authority, and
  2. the tenant, or person residing with him, has been guilty of conduct rendering it inappropriate for him to stay in the dwelling-house.


Ground 8 - Temporary Accommodation Due to Works:

The dwelling house was made available to the tenant while works were being carried out on the tenant's original dwelling and,

  1. the tenant was a secure tenant of the original house
  2. the tenant accepted the tenancy of the temporary house on the understanding that he/she would relinquish the tenancy when the original house became available, and
  3. the original house is so available.


Ground 9 - Overcrowding:

The dwelling-house is so overcrowded that the landlord is guilty of an offence


Ground 10 - Demolition:

The Landlord intends, within a reasonable time of obtaining possession, to carry out demolition, reconstruction or major works on the property. These works cannot reasonably be carried out with the tenant remaining in possession.


Ground 10A - Redevelopment:

The landlord intends, within a reasonable time of obtaining possession, to dispose of the dwelling under a statutory redevelopment scheme


Ground 11 - Charity:

The landlord is a charity and the continued occupation by the tenant would conflict with the objects of the charity


Ground 12 - Employment:

The dwelling-house forms part of a building used mainly for purposes other than housing and,

  1. the tenancy arose in consequence of the tenant's (or a predecessor's) employment by the landlord or local authority,
  2. that employment has ended, and
  3. the landlord requires the dwelling-house for another employee of the landlord or local authority


Ground 13 - Property Adapted for Disabled:

The dwelling-house has features (different from normal houses) making it suitable for a disabled person and,

  1. There is no longer such a person residing in the dwelling-house, and
  2. The landlord requires it for occupation by such a person

This ground allows the landlord to obtain possession, for example, against successors of disabled tenants who are not disabled themselves, or against originally disabled tenants who are no longer disabled.


Ground 14A - Accommodation for Special Groups:

The landlord is a housing trust which lets dwelling-houses only to persons with special housing needs and,

  1. The tenant is not such a person, or has been offered a secure tenancy of other premises, and
  2. The landlord requires the dwelling-house for such a person


Ground 15 - Accommodation for Special Needs:

The dwelling-house is one of a group of such properties let out to persons with special needs (there being facilities and services for such people nearby) and,

  1. The tenant is not such a person , and
  2. The landlord requires the dwelling-house for such a person


Ground 16 - Succession (Size of Premises):

The dwelling-house is more extensive than reasonably required by the tenant and,

  1. the tenant succeeded to the tenancy under s.89 HA 1985 (see above succession), and
  2. A s.83 notice was served between 6 and 12 months after the date of the previous tenant's death.

The court will take into account:

  1. the tenant's age
  2. The period the tenant has occupied the dwelling-house as his/her only or principal home, and
  3. Any support (financial or otherwise) given by him to the previous tenant.

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