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Introductory Tenancies

 

Introductory tenancies are a form of probationary tenancy introduced by Housing Act 1996 and granted by some local authorities. They lack security of tenure within the first year of the tenancy.  Housing Act 1985 Sched 1 Para 1A provides that introductory tenancies cannot be secure tenancies (HA 1996 Sched 14, para 5).

 

 

Housing Act 1996 s124 provides that "a local housing authority or housing action trust (HAT) may elect to operate an introductory tenancy regime."  Where such an election is made, all new periodic tenancies and licences (HA 1996 s126) which would otherwise be secure tenancies will be introductory tenancies or licences unless immediately before the new tenancy, one or more of the tenants was either a secure tenant or an assured tenant of a registered social landlord.  Tenancies remain introductory tenancies until the end of the "trial period" which lasts for one year after the date on which the tenancy was entered into, or the date on which the tenant was first entitled to possession, whichever is later.  Earlier periods where the tenant had another introductory tenancy or had an assured shorthold tenancy granted by a registered social landlord count towards the trial period provided that there is no gap between them.

 

 

Tenancies cease to be introductory tenancies if;

 

            • the circumstances are such that the tenancy could not be secure; or

 

 

            • a person or body other than a local housing authority or HAT becomes the landlord; or

 

 

            • the election is revoked; or

 

 

            • the tenant dies and there is no-one qualified to succeed (HA 1996 ss125 and 133(3)).

 

 

Landlords may only bring introductory tenancies to an end by obtaining a possession order in court (HA 1996 s127).  Before bringing proceedings landlords must serve notices giving reasons for the decision to seek a possession order and specifying a date after which court proceedings may be begun.  The period of notice given must be equivalent to that which would otherwise be needed to terminate the tenancy by notice to quit (i.e. normally 28 days).  It must also inform tenants of their right to "request a review of the landlord's decision" and that they may seek advice from a CAB, housing aid centre, law centre or solicitor (HA 1996 s128). 

 

 

"The precise way in which a landlord chooses to conduct . . . a review is for each landlord to determine." (DoE Circular, para 22).  However the Introductory Tenants (Review) Regulations 1997 SI No. 72 set out certain basic requirements to be followed on reviews.  Reviews are not to be by way of a hearing unless tenants inform their landlords that they wish to have an oral hearing (para 2).  A request for an oral hearing must be made within 14 days after receipt of the notice seeking possession.  Reviews must be carried out by a person who was not involved in the original decision to seek possession (para 3).  If the review is not to be conducted by an oral hearing, the tenant may make written representations (para 4).  If there is an oral hearing, the tenant has a right to:

 

            (a) be heard and accompanied or represented by another person;

 

 

            (b) call persons to give evidence;

 

 

            (c) put questions to anyone who gives evidence; and

 

 

            (d) make representations in writing (para 5).

 

 

The tenant must be notified of the time, date and place of any hearing.  It must take place not less than five days after the request for a hearing (para 6).  The Regulations do not however specify a minimum period between notification of the date of the hearing and the hearing itself.

 

 

The review must be carried out and the tenant notified of the result before the date specified as the date after which proceedings may be begun. 

 

 

If a landlord serves a notice which expires and then brings proceedings against an introductory tenant, the court must make a possession order.  It is not necessary for the landlord to give evidence about the reason for seeking possession (but see below).  All that is necessary is to prove that notice was served and that any review has been determined or that the period specified in the notice has expired (s127).  "Suspended possession orders . . . are not appropriate for introductory tenancies.  Applications to court for possession must lead to eviction." (DoE Circular, para 20)  However s127 must now be read by implying into the section the phrase ‘provided that article 8 is not infringed”. (Hounslow LBC v Powell; Leeds CC v Hall; Birmingham CC v Frisby [2011] UKSC 8; 23 February 2011; and Manchester City Council v Pinnock [2010] UKSC 45, 3 November 2010, [2010] 3 WLR 1441.)

 

 

The Act is silent as to the methods by which tenants may challenge review decisions.  This is not dealt with either in the Introductory Tenancies (Review) Regulations.  Tenants who are dissatisfied with a review decision may apply for judicial review, or, in the light of Powell and Pinnock raise any administrative law or Article 8/proportionality issues as a defence to the possession claim.

 

 

If the "trial period" ends before determination of the possession proceedings, the tenancy remains an introductory tenancy until the determination of proceedings or the date on which possession is to be given up, whichever is later (s130(2)).

 

 

Although introductory tenants lack security of tenure, the Act gives them some rights which are equivalent to those of secure tenants, e.g. succession (HA 1996 ss131-133 and 140) and information and consultation (ss136-137).  The right to repair scheme (HA 1985 s96) has been extended to introductory tenancies by the Secure Tenancies (Right to Repair)(Amendment) Regulations 1997 SI No. 73).  Assignment of introductory tenancies is in general prohibited although they may be transferred by orders made under Matrimonial Causes Act 1973 s24, Matrimonial and Family Proceedings Act 1984, Children Act 1989 Sched 1 and to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment. (HA 1996  s134). 

 

 

Demoted tenancies

 

Under Anti-Social Behaviour Act 2003 county courts have power to change secure or assured tenancies into demoted tenancies, lacking the rights that are associated with secure and assured tenancies.  Procedure relating to demoted tenancies is contained in CPR Parts 55 and 65 and PD 65.

 

Under new Housing Act 1985 s82A local housing authorities, housing action trusts and registered social landlords may apply to a county court for a demotion order.  The court can only grant a demotion order if :-

(a) a notice seeking a demotion order has been served or it is just and equitable to dispense with that requirement (Housing Act 1985 s83 as amended);

(b) it is satisfied that the tenant or a person residing in or visiting the dwelling-house has engaged or has threatened to engage in conduct to which section 153A or 153B of the Housing Act 1996 (anti-social behaviour or use of premises for unlawful purposes) applies, and

(c) it is reasonable to make the order.

     

A demotion order -

(a) terminates the secure tenancy with effect from the date specified in the order;

(b) if the tenant remains in occupation, creates a demoted tenancy  - see Housing Act 1996 ss143A to 143P.  (If the landlord is a registered social landlord, the tenancy becomes a demoted assured shorthold tenancy.);

(c) makes it a term of the demoted tenancy that any arrears of rent payable at the termination of the secure tenancy become payable under the demoted tenancy;

 

(d) lacks security of tenure but (s143E) before bringing a possession claim, a landlord of a demoted tenant must serve on the tenant a notice of proceedings which

·        states that the court will be asked to make a possession order;

·        sets out the reasons for the landlord's decision to apply for the order; and

·        specifies the date after which proceedings for the possession of the dwelling-house may be begun.

 

Section 143F provides a procedure for an internal review of the decision to seek possession.

 

If this procedure is followed, the court must make a possession order (s143D).  However s143D must now be read by implying into the section the phrase ‘provided that article 8 is not infringed”. (Hounslow LBC v Powell; Leeds CC v Hall; Birmingham CC v Frisby [2011] UKSC 8; 23 February 2011; and Manchester City Council v Pinnock [2010] UKSC 45, 3 November 2010, [2010] 3 WLR 1441.)

 

 

In the absence of a possession claim, if the tenant remains in occupation, s143B provides that (in most circumstances), a demoted tenancy becomes a secure tenancy at the end of the period of one year (the demotion period) starting with the day the demotion order takes effect.

 

 

Tenants of public bodies lacking security of tenure

 

The inter-relationship between landlords’ common law or statutory rights to possession against occupants lacking security of tenure and ECHR Article 8 has been considered in a significant number of English and Welsh and Strasbourg cases in recent years. The position has been clarified by the Supreme Court decisions of Hounslow LBC v Powell; Leeds CC v Hall; Birmingham CC v Frisby [2011] UKSC 8; 23 February 2011 and Manchester City Council v Pinnock [2010] UKSC 45, 3 November 2010, [2010] 3 WLR 1441.  In summary, Article 8 requires courts asked to make possession orders under Housing Act 1996 s143D(2) against demoted tenants to have the power to consider whether the order would be necessary in a democratic society.  That proposition applies to all cases where a local authority seeks possession in respect of a property that constitutes a person’s home for the purposes of article 8. However, the obligation to consider proportionality only arises if the property constitutes the occupant’s home – the individual has to show sufficient and continuing links with a place to show that it is his or her home for the purposes of Article 8, but in most cases it can be taken for granted that a claim by a person who is in lawful occupation to remain in possession will attract the protection of Article 8. However, the court only has to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupier’s eviction is a proportionate means of achieving a legitimate aim.  A court should initially consider that question summarily and if it is satisfied that, even if the facts relied upon are made out, the point would not succeed, it should be dismissed.  The threshold for raising an arguable case on proportionality is a high one which would succeed in only a small proportion of cases. There is no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order.  If it is not proportionate, the court may dismiss the possession claim.

 

 

These comments do not apply to tenants with security of tenure facing possession claims based on a discretionary ground for possession.  The “reasonableness” requirement fulfils Article 8 requirements.  (Castle Vale Housing Action Trust v Gallagher [2001] EWCA Civ 944, (2001) 33 HLR 810).

 

 

For what is meant by “public body” see R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587, 18 June 2009; [2010] 1 WLR 363.