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SHARED OWNERSHIP & ENFORCEMENT. Thursday 31st October 2007 Daniel Skinner [email protected] Enforcement . Tenancies & Leases. “Lease” or “Tenancy”?. What is the Difference?. Shared Ownership Tenancies. They look like long leases Tenants feel and act like owners

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Shared ownership enforcement

SHARED OWNERSHIP& ENFORCEMENT

Thursday 31st October 2007

Daniel Skinner

[email protected]


Enforcement
Enforcement

Tenancies

&

Leases


Lease or tenancy
“Lease” or “Tenancy”?

What is the Difference?


Shared ownership tenancies
Shared Ownership Tenancies

  • They look like long leases

  • Tenants feel and act like owners

  • But they are not

  • Why?

    • There is no maximum length of an assured tenancy

    • Low rent exception is very low - £250 p.a.

    • £1,000 in London

  • Probably a 99 year assured shorthold tenancy


Shared ownership leases
Shared Ownership Leases

  • Forfeiture prohibited

  • Use standard court forms to recover possession with normal grounds

  • Don’t use Ground 8 where there is a lender

  • Service Charges (especially in flats)

    • Do the lenders pay?


Enforcement how
Enforcement – How?

  • Injunctions

  • Possession

  • Money claims


Injunctions
Injunctions

  • Courts will always enforce terms of a contract

  • Especially negative orders

    • You must not breach contract

  • But also Positive orders

  • Breach is contempt of court

    • Imprisonment and/or fine


Possession
Possession

  • The ultimate weapon

  • Big differences in procedure

  • Tenancies

    • Courts generally have a discretion

  • Long leases

    • Lots of restrictions

    • No discretion but relieffrom forfeiture


Possession tenancies
Possession - Tenancies

  • Statutory Procedure

  • Notices seeking possession

  • Discretion whether to make order

  • Power to suspend

  • Note Ground 8


Possession leases
Possession - Leases

  • Forfeiture clause in lease

  • S.146 Notice

  • Ground Rent Notices (new format)

  • S.81 restrictions for breach of tenancy

    • Breach agreed or approved by courts


Restrictions on forfeiture
Restrictions on Forfeiture

  • No forfeiture unless:-

    • The breach is for more than £350, or

    • The breach has been outstanding for more than 3 years

  • No s.146 Notices until:-

    • Determined by the LVT (and then after waiting 14 days), or

    • Admitted by the tenant, or

    • Determined by the court (and then after waiting 14 days)

  • No contracting out of these provisions

  • No forfeiture until 14 days after determination


  • Anti social behaviour
    Anti-Social Behaviour

    Remedies in Leasehold

    Leaseholders, Families and Sub-tenants


    Anti social behaviour1
    Anti-social Behaviour

    • Injunctions to enforce contractual terms only of use against tenants/leaseholders

    • Ground 14 only applies to assured tenancies

      • So relevant in shared ownership

      • Consider effect of your undertaking to the lender

    • Demotion Orders only relevant to assured tenancies

    • In leasehold can use

      • ASB Injunctions

      • ASBOs


    Asb injunctions conditions
    ASB Injunctions - Conditions

    • D has engaged, is engaging or is threateningto engage in conduct capable of causing a nuisance or annoyance which directly or indirectly relates to or affects housing management functions of a relevant landlord; and


    Conditions continued
    Conditions (continued)

    • The conduct in question is capable of causing nuisance or annoyance to a person:

      • with a right to reside in or occupy housing accommodation owned or managed by the relevant landlord;

      • with a right to reside in or occupy other housing accommodation in the neighbourhood of the housing accommodation;

      • engaged in a lawful activity in or in the neighbourhood of the housing accommodation;

      • employed in connection with the landlord’s housing management functions.


    Violence or harm
    Violence or harm

    • If the conduct includes the use or threatened use of violence, or if there is a significant risk of harm, the court may:

      • Add a power of arrest to any provision of the injunction.

      • Make an exclusion order


    Asbos
    ASBOs

    Can You Use Them?


    Asbo conditions
    ASBO - Conditions

    • RSL, council or police (etc) may apply, where:

    • D has acted in a manner that has caused or was likely to causeharassment, alarm or distress to one or more persons not of thesame household as himself; and

    • An order is necessary to protect persons from further anti-social acts by him.


    Conditions continued1
    Conditions (continued)

    • Can be made against any person aged 10 or over

    • Must be consultation with local authority and police

    • Consultation with other agencies is advisable, to ensure that an ASBO is “necessary.”

    • If D is under 18 there should generally be a social services assessment.


    Length
    Length

    • At least 2 years

    • The making of indefinite ASBOs has been frowned upon.

    • Either party may apply to vary or discharge the order, but unless both parties agree it shall not be discharged within 2 years.


    Money claims
    Money Claims

    • Simple?

    • Set out what they owe you on Form N1

      • Send to County Court with fee

    • If they defend, goes to a hearing

    • Service Charges likely to go to LVT

    • If they do nothing, get a default judgment

    • Great

      • It’s a piece of paper


    Money claims enforcement
    Money Claims - Enforcement

    • Up to you to enforce

    • If they are working

      • Attachment of earnings

    • If they have savings

      • Third party payment order (Garnishee)

    • If they own property or shares

      • Charging order

      • Order for sale


    Enforcement options 2
    Enforcement Options (2)

    • If they have assets/belongings

      • Bailiff to execute

    • If they care

      • Bankruptcy petition (must be £750)

    • If you don’t know

      • Examination at court



    Service charges
    Service Charges

    Changes in the Law


    Service charge demands
    Service Charge Demands

    • Now have to include prescribed information

      • Also applies to Administration Charges

    • Sets out tenants’ rights

    • A lot of information

    • What effect might this have?



    Right to buy
    Right to Buy

    Possible Changes


    Consultation document
    Consultation Document

    • Responses by 31 October

    • Not designed to change basic rights of social tenants

    • Clarification

    • Reduce regulation

    • Increase Options to RSLs

    • Autumn 2008?


    Rtb postponed orders
    RTB & Postponed Orders

    • Postponed Orders –

      • No date for possession yet fixed by court

    • Should those tenants lose the RTB?


    Lenders rtb
    Lenders - RTB

    • Should lenders come under FSA

      • Financial Services Authority

    • Should FSA approved lenders need additional authorisation?


    Local authorities buy back
    Local Authorities – Buy Back

    • Should local authorities be able to buy back shares in properties?

      • Reverse staircasing

      • To help fund major works


    Local authorities equity loans
    Local Authorities & Equity Loans

    • Should they be allowed to?

    • Should admin expenses be capped


    Rtb valuations
    RTB Valuations

    • Should District Valuer be allowed to change his mind?

      • Only if he was a long way out?


    Rtb restriction for demolition
    RTB Restriction for Demolition

    • Currently restricted if landlord plans to demolish

    • What if some other body is to demolish?



    Shared ownership enfranchisment
    Shared Ownership & Enfranchisment

    • Consultation Closed 19 October 2007

    • Proposals

    • Reduce potential to buy freehold before 100% owned

      • Little protection at moment for private developers

      • Remove complicated low rent test

    • Restrict 100% staircasing in certain areas



    Service charges more changes
    Service Charges – more changes?

    Statements of Account

    &

    Designated Client Accounts


    Service charges1
    Service Charges

    • Consultation just Closed

    • Statements of account

      • S.152 C & L R Act 2002

    • How much information?

    • How prescribed the format?

    • What exemptions for local authorities?

      • Problems with Housing Revenue Account

    • What exemptions for RSLs

    • Statement of rights required?

    • Accountant’s report?


    Service charges 2
    Service Charges (2)

    • Separate accounts?

    • Different service charge funds mixed together?

    • Obligations on accountant


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