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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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