Mutual Exchange nightmare PLEASE SOMEONE HELP..
11/09/2011 12:28 pm
I have 2 children living in a 2 bed flat. I have found a person who wants to do a mutual exchange with me. He is a single man living in a 3 bed house. He grew up in his house and when his mum died he was allowed to stay there and the assured tenancy was passed to him. He has no rent arrears or repairs to do. He was told today that he is NOT allowed to do a mutual exchange. We don't understand why because we were told last week that he has an assured tenancy and anyone with a secure or assured tenancy can do a mutual exchange. Their reasons are unclear but they told him he has to be rehoused by them only and cannot do an exchange. Is this unlawful of them? If he has an assured tenancy and owes no rent and has no repairs why would they stop the exchange? His housing assoication is called Peabody. Can they stop an exchange without good reason? When his mum died he was asked to sign forms to take over his mum's tenancy and was told his tenancy is assured so why can't he do an exchange. They said it's fine for me to live in his house because i have 2 children and it's fine for him to have my 2 bed but they are saying he can't exchange. He gets full housing benefit for his 3 bed house. He has told me they do want him to down size but no court action has been issued they just asked him to look on their website and bid for properties but still he should be able to exchange or are we wrong? Please someone help.
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11/09/2011 8:39 pm
It may have something to do with the fact that he is essentially under-occupying the property, being a single person in a 3 bed house.
The reason for refusing an exchange, which they can do in most circumstances are:
1. They want to be able to offer the property to those requiring housing in their own borough if the single tenant moves out.
2. They may be looking to start an under-occupancy action against the tenant but have not started. But most LA's dont normally carry this out as it there can be many legal complications.
My advise to the guy with the 3 bed house is to seek legal advise and get the LA to define why they wont allow the exchange to take place!
12/09/2011 10:02 am
Unless there is something your man isn't telling you I can not see how they can refuse. The grounds for refusing an exchange by assignment are set out in schedule 3 of the housing act - you can see them at http://www.legislation.gov.uk/ukpga/1985/68/schedule/3
Depending on the age and gender of your children they could possibly use ground 3, "The accommodation afforded by the dwelling-house is substantially more extensive than is reasonably required by the proposed assignee," ie they could say that the house is too big for you. However, if this was the case they would probably have used this gorund in the first place.
As none of the other grounds relate to your circumstances, you should be able to make a successful appeal against Peabody's decision
12/09/2011 10:09 am
This ground is for secure tenancies. The person in question has an assured tenancy.
Any right to exchange for an assured tenant will be contained within the tenancy agreement. If the agreement says he can exchange then he can.
If the tenancy agreement does not give the right to exchange then the decison rests entirely with the landlord.
12/09/2011 10:19 am
That is true, JamesD, but Peabody themselves state in their exchange policy that applications will only be turned down on one of those ten grounds (see http://www.peabody.org.uk/media/137144/mutual_exchangepolicy_summary_jun08.pdf [pdf file]).
12/09/2011 11:13 am
Thanks for clarifying MS.
There is, therefore, a contractual right to carry out an exchange granted by the tenancy agreement.
Unless of course there is more to this case than we are being told.
I am assuming that the other party is either a Housing Association of Council tenant as the right will not exist to exchange with a tenant in the private sector.
12/09/2011 11:15 am
Thank you all for your comments. Just to confirm my children's ages are 13 years old and 10 months old so they have a 13 year age gap which should allow me to live in a 3 bed property. Also the rent for the 3 bed house we want is just £1.00 lower than the rent for my 2 bed flat so can't see why rent will be an issue. Can Peabody really refuse an exchange without solid grounds? Even if my exchange partner signed a form to say he will bid on properties does it rule out mutual exchanges?
Many thanks again for all help received.
12/09/2011 11:18 am
Just to confirm i am a Moat Housing assoication tenant in a 2 bed flat with 2 children who have a 13 year age gap. My exchange partner is a single man living in a peabody 3 bed house. He succeeded his mum's assured tenancy when she died. We both have assured tenancies.
12/09/2011 1:03 pm
According to Peabody's lettings policy (http://www.peabody.org.uk/media/7502867/lettings_policy_aug2011-12.pdf [pdf file, pages 3 & 4]), a 3 bed property would be suitable for your family so that won't be an issue.
The amount of rent chargeable on each property makes no difference. Even if either of you are in arrears, there is no ground to refuse, but they can withold permission until the account is clear.
Are you certain that Peabody's tenant is not in arrears, and that Peabody have not started possession proceedings on their property? If he has agreed to actively seek alternative accommodation through their CBL scheme, I would have thought that the exchange would be in the interest of both the tenant and the landlord, so I can't see why it would be refused unless (as JamesD mentioned) there is some detail about the application of which we are unaware.
12/09/2011 4:28 pm
If the policy of Peabody states their tenants can assign by way of exchange and the tenancy agreement supports this then he can carry out a mutual exchange with you.
I would suggest he approaches Peabody again and politely, but firmly, points this out to them.
Good luck to the both of you. The move is clearly in the interests of all concerned.
13/09/2011 5:39 pm
You see, I think there are some pretty good clues here. Looks to me as if Peabody are in the middle of getting him to downsize following the succession - legal proceedings may not actually have started yet but this may simply be because the timescales for a Ground 16 notice and subsequent possession proceedings are not yet met. They may well be trying to get him to move amicably rather than using the courts in the first place. To be honest, i wouldn't get involved in this if I were you - you could end up in a lot of difficulties. Your other option is to get your own landlord involved - ask them to discuss with Peabody what the blockages are. Landlords are supposed to liaise over these matters.
15/09/2011 3:57 pm
Are you sure he is the tenant? Sounds to me like he has not gone through a succession. I would agree with Sarahc.
24/02/2013 1:53 pm
Hi guys can someone please help I am a private tenant in Eastbourne East Sussex with 2 children and someone that is a council tentant wants to do a exchange with me is there anyone out there who knows weather this is allowed? Many thanks x
25/02/2013 11:18 am
Charlie, As a private tenant you can't exchange because of the type of tennacy you have (probably an assured shorthold).
You would need to be a tenant of either a housing association or the council to have the type of tenancy which can be legally assigned.
25/02/2013 1:37 pm
Hi Charlie yes Matt is correct this is only for Housing Assocition and Council Property'which both party's had to a tenant of one or the other. Its not open to Private Social Landlord. You could write to your MP/Councillor and ask for a change in the Policy and Procedures