Where a council landlord, have reason to believe that the tenant has not been occupying the property as his main or principle home, they may seek to obtain possession of the property on the basis that the tenancy conditions have been breached.
The council will need to serve the appropriate notice seeking possession, following which they will need to obtain a possession order in the county court and a bailiff’s warrant before they can lawfully evict a Secure Tenant for failing to occupy the property as his main or principle place of residence.
The usual circumstances when this occurs is where the council consider the tenant has sublet the property and therefore given another person exclusive possession of the entire property in their absence. It can also arise where the tenant sub lets rooms out to different occupiers.
Possession Procedure
The first stage to obtain possession of the property is to serve a notice seeking possession or notice to quit.
By serving a notice to quit the landlord terminates the contractual tenancy, therefore after the date when the notice to quit expires the landlord can issue a claim for possession, pleading in the particulars of claim to the court, that the contractual tenancy has expired and therefore the landlord is entitled to possession of the property because the tenant no longer occupies the property as his main and principle place of residence. If the landlord can prove that the notice to quit has brought the tenancy to an end a possession order will be made.
In the alternative, or in addition to the above notice, the landlord may serve a notice under Section 3 of the Housing Act 1985 detailing the grounds of possession they intend to rely upon, which in this case would be Ground 1 of Schedule 2 of the Housing Act 1985, which provides that rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed.
The council would then refer to the tenancy condition which provides that the tenant must live in the property as their main or principle home. Most tenancy conditions include this term.
Section 93 of the Housing Act 1985 provides that it is a term of every secure tenancy that the tenancy may allow any persons to reside as lodgers in the dwelling house but will not, without the written consent of the landlord, sublet or part with possession of part of the dwelling house.
If the tenant under secure tenancy parts with the possession of the dwelling house or sublets the whole of it. The tenancy ceases to be a secure tenancy and cannot subsequently become a secure tenancy.
The landlord can therefore rely on the fact that the tenant has beached Section 93 of the Housing Act 1985 so that the tenant has ceased to be a secure tenant from the date when the notice to quit becomes effective and/or serve a notice of seeking possession and rely on breach of the express tenancy conditions, as provided for by the local authorities tenancy agreement.
In most cases the local authority serves both notices.
By serving a Section 83 Notice, if the landlord wanted to, they could also rely upon rent arrears if they did not obtain possession on the basis that the tenancy was no longer secure.
Usually the council should interview the tenant to investigate the circumstances in which they consider the tenant has breached the terms of their tenancy conditions and/or lost their secure tenancy status. Often this can be due to a misunderstanding where a residents check is undertaken by the local authority and a different person is in occupation at the time.
By serving a notice to quit or notice seeking possession this does not mean that the local authority intend to issue proceedings, it is the first stage the council must take if they wish to issue proceedings at a later date and is often undertaken as a matter of procedure before an interview takes place, so that the local authority can rely on the notice at a later date if the tenant does not co-operate in providing information relating to people who were in occupation of their property.
The usual defence in such a case is one whereby the tenant has not sublet the property. If the tenant has allowed a lodger to stay in the property and has not informed the council previously, as long as the tenant remained in occupation of the property throughout the period when the lodger was staying there, and/or intended to return to the property and kept their possessions in the property at all times, then there is still a defence to the proceedings.
This may happen in circumstances where, for example, a tenant is away from home visiting relatives abroad, or in prison etc. and cannot reside at the property, but leaves all their personal possessions in the accommodation and continues to have an intention to return to the property throughout. The intention to return to the property will be considered by the court and should be considered by the council before issuing proceedings. By leaving all the personal possessions in the property and maintaining a separate private area in the property to be used only by the council tenant this is considered by the courts as a “physical manifestation” of their occupation and therefore a good basis for supporting a finding that the tenant always had an intention to return.
Often these cases will go to trial where the evidence of witnesses on behalf of the council tenant and the tenants evidence itself will be weighed up against that of the lodger and or Housing Officers.
Options for the Court
There are really only 2 options for the court:
1. If the court finds that the tenancy has continued in that the tenant always had an intention to return or never parted with possession of the whole of the property, the possession claim will be dismissed.
2. If the court finds that the tenancy has come to an end in that the tenant did sub let the whole of the property or a possession order will be made. If however the court finds that the tenant only breached the tenancy conditions in sub letting part of the property without seeking permission from the council in advance, they would have to consider whether it was reasonable for a possession order to be made it would not be automatic and the court may take in to account the current position whether the tenant has left and whether the council has unreasonably withheld consent.
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