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SHARED OWNERSHIP & ENFORCEMENT

SHARED OWNERSHIP & ENFORCEMENT. Thursday 31st October 2007 Daniel Skinner dskinner@batchelors.co.uk. 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

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  1. SHARED OWNERSHIP& ENFORCEMENT Thursday 31st October 2007 Daniel Skinner dskinner@batchelors.co.uk

  2. Enforcement Tenancies & Leases

  3. “Lease” or “Tenancy”? What is the Difference?

  4. 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

  5. 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?

  6. Enforcement – How? • Injunctions • Possession • Money claims

  7. 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

  8. Possession • The ultimate weapon • Big differences in procedure • Tenancies • Courts generally have a discretion • Long leases • Lots of restrictions • No discretion but relieffrom forfeiture

  9. Possession - Tenancies • Statutory Procedure • Notices seeking possession • Discretion whether to make order • Power to suspend • Note Ground 8

  10. 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

  11. 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

  12. Anti-Social Behaviour Remedies in Leasehold Leaseholders, Families and Sub-tenants

  13. 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

  14. 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

  15. 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.

  16. 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

  17. ASBOs Can You Use Them?

  18. 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.

  19. 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.

  20. 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.

  21. 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

  22. 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

  23. 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

  24. What’s New?

  25. Service Charges Changes in the Law

  26. 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?

  27. What Might be New?

  28. Right to Buy Possible Changes

  29. Consultation Document • Responses by 31 October • Not designed to change basic rights of social tenants • Clarification • Reduce regulation • Increase Options to RSLs • Autumn 2008?

  30. RTB & Postponed Orders • Postponed Orders – • No date for possession yet fixed by court • Should those tenants lose the RTB?

  31. Lenders - RTB • Should lenders come under FSA • Financial Services Authority • Should FSA approved lenders need additional authorisation?

  32. Local Authorities – Buy Back • Should local authorities be able to buy back shares in properties? • Reverse staircasing • To help fund major works

  33. Local Authorities & Equity Loans • Should they be allowed to? • Should admin expenses be capped

  34. RTB Valuations • Should District Valuer be allowed to change his mind? • Only if he was a long way out?

  35. RTB Restriction for Demolition • Currently restricted if landlord plans to demolish • What if some other body is to demolish?

  36. Anything Else New?

  37. 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

  38. Not More New Stuff

  39. Service Charges – more changes? Statements of Account & Designated Client Accounts

  40. 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?

  41. Service Charges (2) • Separate accounts? • Different service charge funds mixed together? • Obligations on accountant

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