A question of privilege

Tenancy for life has been hotly debated in recent months. For many, it is a fundamental principle of social housing. Others see it as an unrealistic aspiration.

Currently, a council tenant has the legal right to stay in their home until they die, and then pass it on to family members, as long as they comply with their tenancy agreement. They can only be evicted if they have breached the terms of their tenancy agreement and the landlord has obtained a court order.

This was not always the case. Until 1980, social housing occupants had no security of tenure. Before that, a local authority tenant could simply be given 28 days notice before being kicked out of their home.

People living in the private rented sector had more rights as they were covered by rent acts, which made it reasonably difficult for landlords to evict.

It was the Conservative government that introduced secure social tenancies through the 1980 Housing Act, with a few changes following that consolidated in a 1985 act. Housing association tenants were secure tenants until the 1988 Housing Act, when assured tenancies were created. This gave people similar but more restricted rights: they were not allowed the right to buy and were easier to evict because of rent arrears.

Since these landmark acts, various changes have been made to the law, which some people argue have eroded tenants’ rights. These included making it easier to evict tenants for a myriad of reasons, including anti-social behaviour, rent arrears, using their property illegally and lying to obtain their home.

Landlords can now ‘demote’ tenancies - take the security away for up to one year - evict people for domestic violence and make them wait a year before they are given a secure tenancy.

Tenants’ rights seemed further under threat earlier this year, when the then housing minister Caroline Flint provoked fury by suggesting that seeking work should be a condition of a social tenancy. Her successor, Margaret Beckett, was reported to be considering the idea soon after her appointment but has since distanced herself from the suggestion that her department was drawing up proposals.

Meanwhile, the Chartered Institute of Housing sparked controversy in October by releasing a paper, Rethinking housing, calling for an end to a static tenancy for life, and suggesting that they should be subject to regular reviews of their status.

Naomi Goode, a partner in the social housing department at law firm Lewis Silkin, points out that proving you are a ‘good’ tenant is already an element of social housing tenancies - if only at the beginning.

‘In the 1990s, everyone was excited about anti-social behaviour. The grounds for possession of both secured and assured tenancies were extended and tenants’ rights were significantly weakened.

‘Now you have to prove you are worthy of getting tenancy with secured tenure [with an introductory tenancy].’

Introductory tenancies were brought in with the 1996 Housing Act. Tenants only attain a secure tenancy by living in their property for a year without breaching the terms of their contract, avoiding any part in anti-social behaviour or falling behind with their rent.

In the past few years, housing associations have started to introduce starter tenancies, which work in the same way.

‘There are a lot of sensible housing reasons [for introductory tenancies] but it begs the question: should people have to earn a tenancy, or is social housing a right?’, asks Ms Goode.

Not everyone agrees that tenants are worse off now.

Simon Randall, head of housing and local government services at law firm Lawrence Graham, says: ‘Rights have not been eroded. In some respects there has been enhanced legislation, to deal with victimisation on grounds of nuisance and domestic violence.’

In 2004, for example, civil partnerships were included in the right of succession for secure and assured tenants, he adds.

Professor James Driscoll, a consultant at law firm Trowers & Hamlins says: ‘The basic principle [of security of tenure] is the same as it was 30 years ago.

‘If you speak to housing managers who worked in a local authority or housing association before 1980, when they decided a tenant had to leave they had no defence at all. They were served a notice and that was the end of it.

‘There were cases where people challenged the decision but they rarely succeeded.’

Residents are often upset by anti-social behaviour and a lot of them will support laws against it, he adds.

Nick Billingham, head of the housing management team at law firm Devonshires, agrees. ‘Where there might have been a weakening of rights is in relation to the additional deals that have been granted to landlords,’ he says.

‘Housing associations have welcomed starter tenancies because if someone misbehaves you can evict them. Before you would have had to go through a full trial, which could have lasted six to nine months.’

Demotion orders have not been used as widely as originally predicted.

Housing associations also have powers to repossess a property if ‘the landlord is a charity and the tenant’s continued occupation of the dwelling-house would conflict with the objects of the charity’, Mr Billingham explains. But they hardly use it because it would ‘open up a huge can of worms’.

Sian Evans, who specialises in property litigation at law firm Weightmans, says: ‘Some rights have been eroded - before 1989 there were no mandatory grounds for possession [for housing associations]’.

She points to ground 8 of the 1988 act, which means that a judge has to award a housing association possession of a dwelling, on request, after a tenant has fallen behind with just eight weeks’ rent.

However, Ms Evans adds: ‘In circumstances such as if a person is eight weeks in arrears and has housing benefit and a job, and is not paying the rent, a housing association is justified in making a final possession order. They have to collect rent.’

She also says that while most local authorities are using introductory tenancies, there are fewer housing authorities using starter tenancies now.
So, what about scrapping the tenancy for life? The lawyers do think it should be re-examined at least. Mr Randall says: ‘I have some sympathy with those who think that the tenancy for life should be reviewed.

‘If someone is a tenant and wins the pools or gets a job and doesn’t need that tenancy, there may be some method of encouraging them to
take shared ownership or something similar.

‘Because we have huge needs, in terms of people who want to have affordable housing, we need some way to have greater improvement some form of mobility.’

He believes that the government should look at real estate investment trusts - which allow investors to pool money and invest in property which is then leased - as a possible way of alleviating housing shortage.

Mr Billingham agrees that persuasion is key: ‘If we want to have some sort of way of moving people on we can only do it by encouragement.

‘Try to persuade people to take equity shares. If the government wants to go ahead with this [end secure tenancies for life] it would have to introduce new grounds of possession, which is potentially unworkable.’

He says it would be difficult to assess people’s continued eligibility for social housing and believes people would be likely to take landlords to judicial review.

Ms Goode firmly believes security of tenure should stay. ‘If you didn’t have it, it might save a bit of money because people who do not need it would move on.

‘But you may need to spend more on education and social service budgets because of the depressed people having a hard time.’ She comments that moving home can be very disruptive, particularly for families.

On Ms Flint’s suggestion that tenants should prove they are actively looking for work, Ms Goode points out that courts may not enforce it. ‘With housing law, the court, when evicting people, will only look at the relationship between the tenant and the landlord.

‘Work is nothing to do with the tenant and landlord relationship.’

She also thinks it would be a ‘big disincentive to work - and incentivises poverty - if your punishment for getting a job is to lose your home’.

However, many in the legal profession would like to see some changes to the way tenancies are issued. In 2006, the Law Commission called for one secured tenancy to replace secured and assured tenancies. It has also suggested improvements for social housing tenants, such as better succession rights - so partners or flatmates can be added to the contract - and that housing association tenants have participation rights statutorily included in their contract.

Trowers & Hamlins’ Professor Driscoll says: ‘This mishmash [of changes in the law since 1980] has produced a hugely complex area of law where tenants and their landlords can find it difficult to get the answer to the most basic of questions.

 ‘There is, I think, much to be said for the Law Commission recommendations of an overhaul and a simplification of housing law.

‘This would include the “single tenancy” where social landlords could opt for a tenancy type which would be used regardless of whether the landlord is a local authority or a registered social landlord.’

But, Mr Randall suggests: ‘It’s an aspiration that’s desirable but difficult to achieve. It’s difficult - but might be one way of having a common form of tenancy for local authority and housing association tenants.

‘It would help when people move from local authority housing or housing association housing, and make it simpler for the tenant. But it would require people to accept a new form of tenancy.’ Rents might rise as a result, he adds.

Ms Evans says: ‘Two different acts with different legislation can be confusing. With one piece of legislation there would be more certainty.’

With a lack of affordable housing and fewer people moving on in social housing, the government will be looking at ways to free up more stock. It should be bringing out a housing reform green paper this year. Whatever it comes up with, making the tenancy laws simpler and more transparent would certainly have its backers.

Have your say

You must sign in to make a comment