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Housing and Regeneration Act 2008

Schedule 11 – Possession orders relating to certain tenancies

964.Part 1 of Schedule 11 amends the Housing Act 1985, the Housing Act 1988, and the Housing Act 1996 to provide that where a possession order is made against a secure, assured or demoted tenant, the tenancy will end on the date the tenant is evicted (unless the tenant ends the tenancy before that date). The provisions will prevent the creation in future of “tolerated trespassers” who remain in occupation in the property but without the tenancy agreement or the relevant statutory provisions applying. Part 2 of the Schedule provides that where before commencement a tenant has already become a tolerated trespasser, a new tenancy will arise. Provision is made for the details of how this new tenancy will relate to the original tenancy.

965.Paragraphs 1 to 4 amend the Housing Act 1985. The amendments in paragraph 2 to section 82 ensure that where a possession order has been made in relation to a secure tenancy, the tenancy ends when the tenant is evicted. Paragraph 3 amends section 85 in relation to the discretion of the court in possession proceedings, gives the court wider powers to discharge or rescind a possession order, and repeals subsections (5) and (5A) which are now unnecessary since they relate only to tolerated trespassers.

966.Paragraph 4 amends Ground 1 of Schedule 3 to the Housing Act 1985, which sets out a landlord’s grounds for refusing to allow a secure tenant to exchange homes with another tenant. The amended wording ensures that the ground applies in all cases where a possession order has been made, regardless of the wording of the possession order.

967.Paragraphs 5 to 9 amend the Housing Act 1988. The amendments in paragraph 6 to section 5 ensure that the tenancy will continue until the tenant is evicted. Paragraph 7 amends section 7(7) to the same effect with respect to fixed term tenancies which have ended.

968.Paragraph 8 amends section 9 with regard to the discretion of the court in possession proceedings, giving the court wider powers to discharge or rescind a possession order, and repealing subsections (5) and (5A)..

969.Paragraph 9 amends section 21 with respect to when possession orders in respect of assured shorthold tenancies take effect. Where the court grants a possession order terminating a fixed term or periodic assured shorthold tenancy, including any statutory periodic tenancy arising on or after the end of the fixed term, the tenancy will end when the tenant is evicted.

970.Paragraphs 10 to 13 amend the Housing Act 1996. Paragraphs 11 and 12 amend sections 127 and 130 to provide that where a possession order has been made in relation to an introductory tenancy, the tenancy will end when the tenant is evicted, and paragraph 13 makes similar provision for demoted tenancies by amending section 143D.

971.Paragraph 14 makes transitional provisions. The amended statutory provisions in Part 1 of the Schedule about when tenancies end will not apply where a possession order has already been made, except in two circumstances. These exceptions are, firstly, that they will apply where the tenancy ended after a possession order was made but a new tenancy arises under Part 2 of the Schedule; and secondly, that they will apply where a possession order was made before commencement and the tenancy has not yet ended (because commencement occurs before the date for possession specified in the possession order).

972.Paragraph 14(3) ensures that the wider powers of the court to discharge or rescind possession orders apply to all possession orders whenever made.

973.Paragraph 14(4) contains clarification of the reference to tenancies ending. Tenancies at present end on the date for possession specified in the possession order, but it is possible for the court subsequently to make an order varying the possession date to a date in the future. The effect of such an order is that the tenancy is restored without a break. Paragraph 14(4) clarifies that, where this has happened, the tenancy has not ended for the purposes of these provisions.

974.The definition of “commencement date” in paragraph 14(5) contains an exception to allow order making powers to come into effect earlier.

975.In Part 2 of the Schedule, paragraph 15 defines “an original tenancy” as a tenancy which ended as a result of a possession order (but not as a result of execution of the order – i.e. eviction).

976.Paragraph 16(1) provides that a new tenancy of the dwelling-house let under the original tenancy is treated as arising on the commencement date, between the ex-landlord and the ex-tenant, if three conditions are satisfied. These conditions are, firstly, that the home condition is met; secondly, that the ex-landlord is entitled to let the dwelling-house (for instance, that there has not been a stock transfer to a new landlord); and thirdly, that the ex-landlord and ex-tenant have not in the meantime entered into a new tenancy.

977.The remaining sub-paragraphs of paragraph 16 set out details in relation to the home condition. Paragraph 16(2) provides that the dwelling-house must have been the only or principal home of the ex-tenant throughout the termination period, and still be so on the commencement date. Paragraph 16(3) defines the termination period. Sub-paragraphs (4) to (6) ensure that the home condition will be met where the ex-tenant has been evicted from the property, but the warrant of eviction is subsequently set aside (leaving the possession order still in force). Where this happens, if the ex-tenant returns to the property the new tenancy arises on the first day of resuming occupation.

978.Paragraph 16(7) gives the appropriate national authority power by order to provide for other circumstances where the home condition is met.

979.Paragraph 17 specifies the nature in each case of the replacement tenancy. In all but one case, the replacement tenancy is of the same type as the original tenancy. The exception, in paragraph 17(a)(ii), is where the original tenancy was an introductory tenancy but during the termination period the landlord revoked the introductory tenancy regime. In such circumstances the replacement tenancy will be secure.

980.Paragraph 18 provides that the terms and conditions of the original tenancy immediately before it ended will apply to the new tenancy, subject to sub-paragraphs (2) to (6). Paragraph 18(2) enables changes made in the termination period in the amount of “rent” to apply to the new tenancy, and paragraph 18(3) ensures that arrears of “rent” owed for the termination period will be owed in respect of the new tenancy. Paragraph 18(4) gives the appropriate national authority a power to provide by order for other modifications of the terms and conditions of the new tenancy.

981.Paragraph 18(5) provides a safeguard by specifying that nothing in the preceding sub-paragraphs permits a term to be read into the new tenancy which could not have been applied to the original tenancy if it had not ended. For example, if the ex-landlord had been charging the ex-tenant higher “rent” during the termination period than would have been permissible had the tenancy been in force, the rent under the new tenancy will not be modified to take account of this.

982.Paragraph 18(6) refers to the situation where an original introductory tenancy has to be replaced by a new secure tenancy, and requires the terms and conditions to be modified as necessary to reflect this.

983.Paragraph 19(1) provides that any statutory provisions relating to secure, assured, introductory or demoted tenancies apply to such a tenancy arising as a new tenancy under Part 2 of the Schedule.

984.Paragraph 19(2) and (3) provides that where the new tenancy is an introductory or demoted tenancy, the statutory provisions providing for the length of the tenancy are modified so as to secure that the new tenancy does not consist simply of the remainder of the one year period after taking into account the time spent under the original tenancy.

985.Paragraph 19(4) gives the appropriate national authority power by order to modify any statutory provision as it applies to a new tenancy.

986.Paragraph 20 deals with the effect which court orders made in the course of the possession proceedings in respect of the original tenancy have on the new tenancy. The possession order itself is to be treated, so far as practicable, as applying to the new tenancy, and paragraph 20(2) provides that any other court orders relating to occupation of the dwelling-house and made in contemplation of, in consequence of, or otherwise in connection with the possession order, and which are in force on the commencement date, must also be treated (so far as practicable) as applying to the new tenancy.

987.Paragraph 21 sets out circumstances in which the original tenancy and the new tenancy must be treated as the same and continuous tenancy, and deals with related matters. The two tenancies must be treated as the same and continuous for relevant purposes, which are listed in paragraph 21(2). These are succession rights; calculation of qualification periods for the right to buy (which includes the preserved right to buy and the right to acquire); and enabling the landlord to rely on ground 8 of Schedule 2 to the Housing Act 1985. In addition, the appropriate national authority may by order specify other relevant purposes.

988.Paragraph 21(3) gives the court a power to order that the original tenancy and the new tenancy are to be treated as the same and continuous for the purpose of a relevant claim, so that the claim may apply to the termination period. A relevant claim is defined in paragraph 21(4) as being a claim by either ex-landlord or ex-tenant against the other for breach of the tenancy agreement, or a claim by the ex-tenant against the ex-landlord for breach of statutory duty. Where a claim has already been made before the commencement date, it will only be a relevant claim if the proceedings have not yet been finally determined at that date. A power is given to the appropriate national authority to specify other types of claim as relevant for this purpose. Paragraph 21(5) defines when a claim is finally determined.

989.Paragraph 22 ensures that where tenants have been consulted pursuant to statutory requirements, the fact that occupants who were ex-tenants at the time were or were not allowed to vote does not mean that the consultation requirements were not complied with. The appropriate national authority is given a power to specify consultation requirements additional to those listed in paragraph 22(2).

990.The effect of paragraph 23 is that where there are ex-tenants who were formerly joint tenants, the occupation of the dwelling-house as only or principal home by at least one of them is sufficient for the home condition to be met. It also gives the appropriate national authority power by order to modify the way Part 2 of the Schedule applies to joint tenancies.

991.Paragraph 24 gives the appropriate national authority power by order to provide that the provisions in Part 2 of Schedule 11 apply to successor landlord cases, subject to any modifications specified in the order. Successor landlord cases are defined as cases where the original landlord’s interest has been transferred to another person or any subsequent transferee.

992.Paragraph 25 repeats in relation to Part 2 of the Schedule the provision in paragraph 14(4), clarifying that where a tenancy which had formerly ended was restored (by the court varying the possession date in the order) such a tenancy then no longer counts as a tenancy which has ended for the purposes of these provisions.

993.Paragraph 26 contains definitions and interpretation of words and phrases used in the Schedule, or gives references to the paragraphs in which particular words and phrases are defined. It also makes provision for determining, where necessary, whether a dwelling-house is in England or Wales according to where council tax is paid.

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