Housing and Regeneration Bill

[back to previous text]

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.
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.
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.
Previous Contents
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2008
Prepared 24 January 2008