New
Clause
17
Tolerated
trespassers
‘(1) For section
82(2) of the Housing Act 1985 (secure tenancies), substitute the
following—
“(2)
Where the court makes a possession order for possession of the
dwelling-house, the tenancy ends on the date on which the order for
possession is executed (unless the tenant gives up possession before
that date).”.
(2) After
section 5(1) of the Housing Act 1988 (assured tenancies), insert the
following—
“(1A)
Where the court makes a possession order for possession of the
dwelling-house, the tenancy ends on the date on which the order for
possession is executed (unless the tenant gives up possession before
that date).”.
(3) In
section 7(7) of the Housing Act 1988 (assured tenancies), for the words
“on the day on which the order takes effect”, substitute
“on the date on which the order for possession is executed
(unless the tenant gives up possession in before that
date”.
(4) In section
127(3) of the Housing Act 1996 (introductory tenancies), for the words
“on the date on which the tenant is to give up possession in
pursuance of the order”, substitute “on the date on which
the order for possession is executed (unless the tenant gives up
possession before that
date)”.
(5) In section
143D of the Housing Act 1996 (demoted tenancies), for the words
“on the date on which the tenant is to give up possession in
pursuance of the order”, substitute “on the date on which
the order for possession is executed (unless the tenant gives up
possession before that
date)”.
(6) Where a
possession order was made prior to the commencement of this Act in
respect of relevant tenancy with effect from the date of commencement,
such order is to be treated as if the amendments in this section had
been enacted and in full effect at the date of the order, provided that
at commencement the tenant continues to occupy the same premises as his
only or principal home.
(7) For
the avoidance of doubt, in subsection (6) “tenant”
includes a former tenant under a relevant tenancy and where the
tenant’s tenancy is revived in consequence of this section, such
revival shall have effect from the date of commencement of this
Act.
(8) In this section a
“relevant tenancy” is one of the tenancies referred to in
subsections (1) to (5)
above.
(9) For section 85(4) of
the Housing Act 1985 and section 9(4) of the Housing Act 1988
substitute the following—
“Following a stay,
suspension or postponement under subsection (2) above, upon payment of
all sums due under the order, the order shall be discharged; and the
court may at any other time, if it thinks fit, discharge or rescind the
order for possession.”’.—[Andrew
George.]
Brought
up, and read the First
time.
Andrew
George:
I beg to move, That the clause be read a Second
time.
I
tabled the new clause, along with my hon. Friend the Member for
Montgomeryshire. We have not left the province of legalese. The new
clause is in an area of highly complex law and technicality—for
me, if not for others. A tenant can become a trespasser in their own
home, but until a court order is executed—in other words, they
are evicted—they are know as tolerated
trespassers.
People
can become tolerated trespassers in two situations. First, a court
could make a suspended possession order against a secure or assured
tenant stating that the landlord should recover possession of the
property on a certain day, but that enforcement of the order should be
suspended on terms. Those could include the payment of the current rent
plus weekly instalments of the arrears. Secondly, when a court makes an
outright possession order, the landlord could allow the former tenant
to stay on and not enforce the order on the basis that payments are
kept up.
Once a person
becomes a tolerated trespasser, they enter into a state of limbo, in
which they cease to have any of the contractual or statutory rights
that they formerly enjoyed as a secure tenant. The new clause would
abolish that state of limbo and the entire concept of the tolerated
trespasser by ensuring that the tenancy does not end on the date when
the possession order takes effect, but only on actual eviction from the
premises, in other words, the execution of the possession
order.
As a tolerated
trespasser, the loss of the tenancy agreement, with all of its rights
and obligations, can have far-reaching implications for a tenant.
Tolerated trespassers cannot require their landlord to carry out
repairs; they cannot exercise any of the charter rights in the Housing
Act 1985, such as the right to a mutual exchange or the right to take
in lodgers or the right to consultation on matters of housing
management and of course, the right to
buy.
6.45
pm
Unfortunately
for members of the tolerated trespasser’s family, rights of
succession on death are also lost. The tolerated trespasser can revive
their former tenancy by applying for a further court order varying or
discharging the original possession order, but where a warrant of
possession has been issued, the tenancy will not be revived by an order
suspending the warrant on terms. As I have said, the situation is
highly complex and technical—hence I am sticking to my notes
assiduously—and most occupiers in this situation do not realise
that they have lost their tenancies or, if they do, do not understand
how to revive
them.
The
new clause adopts a form of words recommended by the Law Commission in
its draft rented homes Bill. The Bill would abolish the concept of the
tolerated trespasser by ensuring that the tenancy did not end on the
date when the possession order takes effect, but only on the date of
the actual eviction from the premises.
The new clause would also act to revive the tenancies of all those
tolerated trespassers who are still in their homes, as if those
tenancies had not ended. Where a tolerated trespasser pays off all the
arrears and costs due under the order, the new clause provides that the
tenancy will revive automatically, when the rent account goes into
credit. I hope that the state of limbo that is created by law at
present can be dealt with in that manner, and I hope that the Minister
has taken on board the considerations and proposals within the new
clause. I look forward to his
response.
Mr.
Wright:
I had my fingers burned during consideration of
the last new clause, so I will tread a little more carefully this time.
I fully appreciate the motivation behind the new clause, which as the
hon. Gentleman has eloquently pointed out, seeks to deal with the
problems caused by tolerated trespassers. The Government’s
concern is to protect the interests of both landlords and tenants and
to ensure that a good balance is maintained between them. I recognise
that the creation by the courts of tolerated trespasser status causes
serious problems for tenants and landlords alike. In the first place,
neither landlord nor tenant can rely on the provisions in the relevant
Housing Acts or on the terms of their tenancy agreement. For the
tenant, probably the most serious consequence is that no succession
will be possible on death. For the landlord, problems will include
uncertainty about entitlement to rent, particularly annual increases in
rent, and about whether tolerated trespassers should be allowed to vote
in such things as stock transfers and tenant management
ballots.
Of course,
remedies already exist to restore tenancy status individually to
existing tolerated trespassers. A tenant can ask the court to exercise
its discretion to amend the original possession order by resetting the
date for possession in the future. However, that can only occur on a
case-by-case basis, which, as the Committee will be aware, is both
costly and time-consuming. Furthermore, tenants are usually unaware of
the remedy, as they are of the fact that they have become tolerated
trespassers.
I
do not underestimate the size of the problem. Government statistics
suggest that there could be about 250,000 to 300,000 people in social
housing who are now classed as tolerated trespassers. It is not an
insignificant matter, and it needs to be tackled. Although we have made
it clear, I wish to put on the record again that we take the matter
seriously. That is why we issued a consultation paper in August
canvassing views on how to deal with the tolerated trespasser problem
now and in the
future.
Respondents to
that consultation exercise were overwhelmingly in support of remedying
the situation for the future. The majority of respondents also favoured
rescuing all existing tolerated trespassers, rather than just those who
have complied with the terms of a possession order, although that was
generally on the proviso that landlords should be protected from any
liability for damages. I believe that that proviso is important, and I
shall return to it.
In light of that clear
response, the Government are committed to resolving the tolerated
trespasser problem. We must resolve the contradictions in the current
law, so that it is consistent with the wide discretionary powers that
Parliament gave to the courts
to protect tenants. While I am sympathetic to the aims of the new
clause, I am not convinced that it fully delivers what is needed and
what it intends to deliver. In particular, it fails to recognise the
complexity of the situation of existing tolerated
trespassers. The new
clause would effectively revive or restore former tenancy status to all
existing tolerated trespassers who remain in a property. That is to say
that it would be as though existing occupants had never become
tolerated trespassers. I believe that that could be problematic,
particularly for landlords who are likely to have based decisions
regarding individual occupants on their status as tolerated
trespassers. In reference to the point that I made a moment ago, that
is likely to include decisions associated with stock transfer ballots
and repairs, as the statutory right to repair does not apply to
tolerated
trespassers.
If
the legislation were to be changed with retrospective effect, so that
tolerated trespassers are restored to tenancy status, I believe that we
must look closely at the implications for landlords, including the need
to ensure protection from any legal consequences. The new clause, as
currently drafted, does not do that, and for that reason alone, I
cannot support it. However, I commit now to considering the
introduction of an amendment at a later stage of the proceedings to
resolve the matter of tolerated trespassers. On that basis, I hope that
I have again secured the support of the Committee, and I hope that the
hon. Member for St. Ives does not press the new
clause.
Andrew
George:
I am glad that the right hon. Member for
North-West Hampshire softened the Minister up before I got to my feet,
because it seems to have worked. I am grateful to the Minister for that
reply. He acknowledges that many tenants will not be aware of the
complexity or cost of remedying their situation, where they have the
ability to do so.
The
Minister mentioned the fact that up to 300,000 families were affected
by that state of limbo. The situation is clearly not tolerable and must
be addressed. He suggested that, after having canvassed views, the
Government are resolved to address it. I am grateful to the Minister
for his response. There may well be some
defections—[Hon. Members:
“Defects.”] Yes, defects, thank you. It is rather late in
the day for me. We do not have defections in our
party.
Mr.
Wright:
Just stabs in the
back.
Andrew
George:
Yes, I have the wounds in the back to prove
it.
There may well be
some defects in the drafting of the new clause, and I accept that the
Minister will go away and address them. I look forward to his bringing
forward an amendment, I assume, on Report. On that basis, I beg to ask
leave to withdraw the
motion.
Motion and
clause, by leave, withdrawn.
New Clause
20
Exempt
areas
‘The Secretary of State
may by order designate rural areas as exempt from the right to
buy.’.—[Andrew
George.]
Brought
up, and read the First time.
Andrew
George:
I beg to move, That the clause be read a Second
time.
I look forward
to the Minister’s response to the proposal, on the basis of his
response to the last amendment. We are back to the territory of
political tribalism, which the hon. Member for Welwyn Hatfield enjoyed
so much in an earlier debate on the right to buy, and I am sure many
more colourful adjectives and accusations will fly as the debate
proceeds. The purpose of the new clause was in part addressed during
that debate, as it relates to the difficulties in rural areas where the
sell-back clause in respect of the right to buy does not
apply.
Rural
homelessness and housing need are widely recognised as key factors that
undermine the sustainability of rural communities. The loss of council
properties through the right to buy has a direct impact on the number
of re-lettings becoming available. The new clause would allow the
Secretary of State, by regulation, to exempt local authority housing in
designated areas with populations of 3,000 or below. The existing rural
exemptions under the right to acquire—the scheme available to
housing association tenants—should also apply to council tenants
under the right to buy.
As background to the proposal,
the Minister should be aware that in 2003 the rural group of Labour MPs
said:
“The
right to buy from councils or registered social landlords should not be
available to tenants in settlements of below
3,000.”
They conceded
that that may cause difficulties for those who already have that right,
but they argued that as people realised the effect of the right to buy
on their own families, they would understand why it might be
withdrawn.
In its 2004
report on the draft Housing Bill, the Office of the Deputy Prime
Minister Committee recommended that the Government should seriously
consider extending the Bill with regard to exclusions in rural areas.
The home ownership taskforce recommended that restrictions on the right
to buy and right to acquire in rural areas be
aligned.
The Minister
must bear in mind that the way in which housing is structured is
differentiated between rural areas and urban areas: 86 per cent. of
rural housing is owner-occupied or privately rented compared with 77
per cent. in urban areas. Social rented housing accounts for 13.4 per
cent. of the total housing in rural areas, compared with 22.4 per cent.
in urban areas. In my part of the world, social housing represents less
than 10 per cent., which is about the same proportion as second homes
in a constituency such as mine. Average house prices rose faster in
rural areas between 2000 and 2006 than in urban areas, which has
significant implications for broader housing availability in the
countryside.
Housing
affordability, based on the relationship between average wages and
average house prices, is far worse in many rural areas. The scarce
council housing and housing association housing in rural areas is often
occupied for long periods by the same families, and it becomes
available only in very limited circumstances. The cost of developing
new social housing makes it difficult to develop a new supply of
affordable housing in rural areas.
7
pm
The homes in
the private rented sector are few and far between, and where they
exist, they are extremely expensive. In its report, “Sustainable
Communities: Building for the Future”, the then Office of the
Deputy Prime Minister acknowledged
that
“The
availability of housing, especially social and other affordable
housing, is a critical issue in many rural areas...Rural housing
is often in high demand from in-comers, long distance commuters, people
moving in to retire, and owners of second homes and holiday homes. This
can squeeze out local people on lower
incomes.”
According to
the Countryside
Agency,
“people on modest
incomes, including young and pensioner households and local first-time
buyers, are being priced out of many rural districts. This has
implications for the maintenance of viable, inclusive rural
communities, with some areas becoming increasingly exclusive,
comprising only wealthy households. The balance of communities is
disrupted, families are separated, increased pressure is placed on many
rural services, and the local economy may be forced into
decline.”
I
hope that the Minister will take into account the difficult
circumstances in which people in many rural areas find themselves. The
right to buy has a disproportionate impact on many rural areas. That
was recognised by the Conservative Government, who recognised that
there were some communities—26 designated rural areas, I
think—where there are restrictions on the resale of properties
available under the right-to-buy
scheme.
There
are many parts of the country, including my constituency, where former
council houses are now second homes. That highly prized, expensive
accommodation has simply not been replaced in areas where housing
waiting lists are long and the prospect of local people ever being able
to get a house of their own is remote. I hope that the Minister will
take that on board and accept the new clause in the form in which it is
drafted. If not, I hope that he will recognise that the issue needs to
be addressed and that it should be addressed in the
Bill.
Mr.
Wright:
We have discussed the right to buy at some length
already this afternoon. That important issue affects a lot of people,
but I do not want to detain the Committee for too long in that regard.
I understand the hon. Gentleman’s concern about housing in rural
areas. To get quickly to the crux of my argument, however, it seems
that the hon. Gentleman and the hon. Member for Montgomeryshire want to
tackle that in a rather blunt way by depriving tenants who live in
rural areas of the right to buy. In practice, the new clause would deny
rural tenants the chance to become home owners unless they are wealthy,
which seems rather harsh. Those people will have a strong connection
with the locality and, without the right-to-buy facility, would have to
move away to become home owners, which is not
appropriate.
The
Government are well aware that there are significant housing issues in
rural areas. Our aim is to ensure that more of the existing housing in
rural areas is available to local people. We have had a great debate
today on new clauses 24 and 25, in which hopefully we have teased out
that there will be help to ensure that shared ownership properties are
retained for future purchases in areas were replacement would be
difficult. However—this is the crucial point—it is
important to
note that people will not be prevented from buying homes in rural areas,
but just prevented from buying them outright, which will allow us to
retain affordable housing in perpetuity. The right-to-buy scheme has
always sought to balance the benefits of helping social tenants into
home ownership with the need for affordable rural housing. As the hon.
Member for St. Ives has mentioned, tenants who buy their homes in areas
designated as rural by the Secretary of State, national parks and areas
of outstanding natural beauty may not resell them to whomever they
wish.
The
Government’s view is that the new clause as currently drafted
would be too inflexible and would take away a long-standing right,
thereby taking away the chance for rural tenants to become home owners
in the areas where they might have lived for many years. On that basis,
I cannot accept the new clause and hope that the hon. Gentleman will
withdraw
it.
Andrew
George:
Of course, I fully understand that the new clause
is effectively a blunt instrument that would remove in total the right
to buy from many tenants. However, I hope that the Minister recognises
the difficulties in many rural areas, because I did not entirely detect
that in his
response.
For rural
families, the association with a particular parish or village is
extremely strong. Moving many miles away to find accommodation can
uproot a family,
who may have had local associations for many years, if not for many
generations. I hope that the Minister will recognise the problems of
small rural communities, and even small towns, where the stock of
affordable accommodation is extremely small. A magic circle is needed
so that every property that is sold is replaced. Because affordable
properties are so highly valued by the community as a whole, and
because they are often the only route for local families on local
incomes to ever get any kind of home of their own, a mechanism is
required to protect that stock. If it is not protected by this
admittedly blunt measure, we need to find a more sophisticated measure
that enables those communities to replace the stock that is
lost. Just as on the
previous new clause, I hope that the Minister will take away the
matter, consider it and introduce his own amendment on Report. I hope
that he will at least acknowledge that there is an issue that needs to
be addressed. In the present circumstances, it is not being addressed
in many rural areas, which is something that the Government will have
to deal with. On the basis that we have had the opportunity to debate
that substantial issue and that we will have an opportunity to return
to it, I beg to ask leave to withdraw the
motion.
Motion and
clause, by leave,
withdrawn.
Further
consideration adjourned.—[Liz
Blackman.]
Adjourned
accordingly at seven minutes past Seven o’clock till Thursday 24
January at Nine
o’clock.
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