Subletting and unlawful occupiers 8th June 2016 By Elizabeth Dwomoh and Philippa Seal and elizabethdwomoh@lambchambers.co.uk philippaseal@lambchambers.co.uk

Focus of the seminar The aim of this seminar is to provide an overview of the problem of subletting and unlawful occupiers in the social housing sector specifically in relation to secure tenants.

THE PROBLEM IN CONTEXT

The figures The cost of housing tenancy to local government was an estimated £845 million pounds. Councils recovered 2993 homes from tenancy fraudsters in 2014/2015. The most detected tenancy fraud is in London The European Institute for Combatting Corruption and Fraud

LEGAL PRINCIPALS

Loss of security of tenure The tenant parts with the possession of the whole of the property (s.93(1)(b) of the HA 1985); The tenant sublets the whole of the property (s.93(2) of the HA 1985); The tenant does not occupy the property as their only or principal home (ss 79(1) and 81 of the HA 1985).

Parting with Possession In order to establish that the tenant has parted with possession the landlord would therefore need to show that the tenant had: not merely let another person occupy the property, but had given exclusive possession to that other person; parted possession of the whole of the property, and not merely with part of it.

Subletting A tenant is entitled to seek permission to sublet part of the property Failure by the tenant to seek permission in advance is a breach of s.93(1)(b) of the HA 1985.

A subtenant or a lodger? Monmouth Borough Council v Marlog [1994] 44 EG 240, CA Per Nourse LJ: “where two persons moved into a house each having sole occupation of a bedroom and one only of them had the tenancy, the court would be slow to infer a common intention that the one without a tenancy became the subtenant of the other. Considering the entirely informal nature of the sharing arrangement it would be ludicrous to infer that there had been any intention to create a relationship of landlord and tenant between Mr Roberts and the defendant.”

Landlord’s Consent Landlord’s consent must be in writing (s.93(1)(b) HA 1985 Landlord’s consent must not be unreasonably withheld If consent is refused, the landlord must give a written statement of reasons as to why consent was refused (s.94(6)(1) HA 1985 Consent cannot be conditional (s.94(5) HA 1985)

Only or principal home Islington v Boyle [2011] EWCA Civ 1450 If an inference can be drawn that through length of absence or other circumstances that a tenant no longer occupies a property as his or her only or principal home, the following applies: the onus is on the tenant to rebut the presumption; to rebut the presumption the tenant must evidence an intention to return;

the tenant must be able to demonstrate a “practical possibility” or “a real possibility” of the fulfilment of the intention to return within a reasonable time; the tenant must also show that his or her inward intention is accompanied by some formal, outward and visible sign of the intention to return.

When must the tenant condition be satisfied? The Tenant Condition does not have to be satisfied at all times since the grant of the tenancy. If the tenant regains possession at the date the notice expires, the tenant retains security.

What can a social landlord do to win its case?

To establish subletting, social landlords should seek to obtain the following pieces of evidence: Tenancy agreement between the tenant and subtenant; Rental adverts); Video surveillance; Experian searches;

Witness statements from housing officers, neighbours, and the subtenant(s); Electoral register; Anything to link the tenant to a different area e.g. bank statements showing withdrawals made at cash machines or shopping done consistently elsewhere, land registry entry. Social media e.g. Facebook showing that the tenant has moved country etc.;

Certificates e.g. birth, marriage & death certificates; Applications relating to other properties e.g. planning applications; DVLA search showing all cars registered to the property; Driving licence; GP records.

Defences

Technical Defences Defective notice Defective service of notice

Common Substantive Defences “I have always been living here!” You gave me permission to do so for the period I was subletting.

The Prevention of Social Housing Fraud Act 2013 (“PSHFA 2013”)

The first offence is committed when the secure tenant: Two new offences: The first offence is committed when the secure tenant: in breach of an express or implied term of the tenancy, the tenant sub-lets or parts with possession of the whole or part of the dwelling-house, the tenant ceases to occupy the dwelling-house as the tenant’s only or principal home, and the tenant knows that the conduct described in paragraph (a) is a breach of a term of the tenancy.

The second offence is committed if the secure tenant: Dishonestly and in breach of an express or implied term of the tenancy, sub-lets or parts with possession of the whole or part of the dwelling-house without the landlord’s written consent, and Ceases to occupy the dwelling-house as their only or principal home.

Two defences available to the tenant: Subletting because of threats of violence by a person residing in, or in the locality of the property. These threats may either be towards the tenant or a family member who was residing with the tenant before the tenant ceased to occupy the property;

(2). if the sub-lessee is someone entitled to (2) if the sub-lessee is someone entitled to apply to the court for an order giving them the right to occupy the property or have the tenancy transferred to them.

Time limits under PSHFA 2013 Prosecutions: may be brought within the period of 6 months beginning with the date on which there was sufficient evidence that came to the prosecutor’s knowledge. may not be brought 3 years after the commission of the offence or, if it was continuous, 3 years after the last date on which the offence was committed.

Unlawful profit orders Social landlord can seek an order requiring the tenant to pay the landlord an amount representing the profit from subletting (s.4 PSHFA 2013).

Subletting and unlawful occupiers 8th June 2016 By Elizabeth Dwomoh and Philippa Seal and elizabethdwomoh@lambchambers.co.uk philippaseal@lambchambers.co.uk