By
Legal Services Agency
:
3rd Floor Fleming House, 134 Renfrew Street, Glasgow G3 6ST. Tel: 0141 353 3354 Fax: 0141 353 0354 Email:
lsa@btconnect.com
LSA has legal staff in Glasgow Sheriff Court every Tuesday and Friday to provide emergency advice and representation to those facing eviction and repossession. LSA also operates drop-surgeries offering housing advice from its Glasgow City Centre, Royston and Greenock offices. In 2009-10 LSA assisted in 1,925 housing cases. For more information about LSA and the seminars and training it provides see: www.lsa.org.uk
Legislation
Housing (Scotland) Act 2010
introduces reforms to various aspects of housing law. For present purposes, the most significant changes are to the procedure in rent arrears eviction cases. Section 153 provides that a tenant’s tenancy in a rent arrears eviction case will not come to an end, even after decree has been granted, until the RSL or local authority has actually recovered possession. In other words, where an agreement is entered into following decree being granted, the existing tenancy will continue. Furthermore, the Scottish Ministers will specify a time limit after which social landlords will no longer be able to enforce decree in such cases.
Section 155 introduces Pre-action Requirements. These are laid out in Section 155(2)-(7) and stipulate that prior to raising a court action for eviction where rent arrears is one of the grounds, social landlords must take certain steps, including making reasonable efforts to agree a reasonable repayment arrangement. The Pre-action Requirements essentially make into law what is already good practice amongst social landlords. Social landlords will in future have to serve a Notice on tenants advising of all the steps they have taken, prior to raising a court action. They will also have to satisfy the court likewise. These sections are expected to come into force sometime in Spring 2011.
The Home Owner and Debtor Protection (Scotland) Act 2010
entered into force on 30th September 2010. The Act significantly amends the procedure that mortgage lenders must follow prior to raising a court action by introducing Pre-action Requirements on similar terms as above. Furthermore, all repossession actions will now call in court, giving the debtor the opportunity to appear.
Both LSA and Shelter had a significant level of input to the discussions which preceded the above statutes.
The Equality Act 2010
has amalgamated much of the previous anti-discrimination legislation. Most but not all of its provisions came into force on 1st October 2010. Section 15 of the Act now prohibits ‘discrimination arising from a disability’ which rectifies the anomaly created by the majority judgment in the House of Lords case London Borough of Lewisham v. Malcom [2008] UKHL 43. Under the new provisions, public authorities, including Registered Social Landlords, will be in breach of their statutory obligations if they treat a disabled tenant unfavourably as a result of the tenant’s disability and they knew or reasonably ought to have known about the tenant’s disability and the authority or association’s actions are not a proportionate means of achieving a legitimate aim. This may be relevant to cases where a landlord raises proceedings for eviction, where the ground for eviction (for example rent arrears or anti-social behaviour) relates to behaviour consequential to the tenant’s physical or mental disability.
Case law
1)
Human Rights
In R (Weaver) v. London and Quadrant HousingTrust [2009] EWHC Civ 587the Court confirmed that RSL’s are public authorities and therefore bound by the obligations arising from the European Convention on Human Rights, as implemented by the Human Rights Act 1998 (and Scotland Act 1998)
In the recent case of Manchester City Council v. Pinnock [2010] UKSC 45 the Supreme Court reaffirmed the decisions of the European Court of Human Rights and held that eviction is the most severe interference with the right to a home as protected by Article 8 ECHR. As a consequence anyone facing eviction is, in principle, entitled to have the proportionality of the eviction determined by a court of law. This case concerned the tenants of a ‘demoted tenancy’, which resembles the Short Scottish Secure Tenancy regime. Whilst under domestic law a local authority or RSL can evict a tenant of a demoted tenancy or SSST simply by following the correct procedure, the Court held that in some cases, including where the occupier had no right to remain, it would be possible for the Courts to assess the proportionality of that eviction. The wider implications of this judgement are still to be seen and interested parties should watch this space.
A similar defence based on Article 8 is being run in the LSA case of South Lanarkshire Council v. Ellen McKenna. This case is proceeding by way of appeal to the Sheriff Principal.
2)
Mortgage Arrears & Repossession Cases
In the recent Supreme Court judgment of RBS v. Wilson [2010] UKSC 50, the court overturned the long standing practice of many Mortgage lenders and ruled that in allcases, lenders must serve a Calling-up Notice, giving debtors 2 months notice of an intention to raise proceedings. This case has had implications for those buying repossessed homes as well as those defending repossession actions.
Disclaimer
: The above information is for general guidance only and should not be take as legal advice. Legal Services Agency will not be responsible for any loss, injury or other damage caused as a result of reliance upon the above. Legal advice from a qualified solicitor should be sought should you have questions about any aspect of housing law.
LSA seminars of interest to Housing Law Practitioners.
1.
Antisocial Behaviour….. Legal Remedies, Thursday 17th February 2011, 5.30 to 7.30.
2.
LSA Annual Conference: The Changing Policy Environment, Thursday 24th February 2011, 3.00 to 6.30 (followed by LSA’s AGM and drinks reception: no charge, open to all.
3.
Human Rights Challenges in Scotland: A practical approach, Monday 28th February 2011, 10.00 to 1.00.
4.
Short Assured Tenancies: Thursday 24th March 2011, 5.30 to 6.30.
Forthcoming seminars to be arranged include on repairs: rent arrears pre-action requirements, Preventing Homelessness to name but a few.
LSA runs many other seminars of relevance to housing law practitioners including on court room skills, judicial expenses, etc.
For further information see LSA’s website on www.lsa.org.uk or contact Susan Clark on seminars@lsa.org.uk or phone 0141 353 1274.
A new organisation of interest to housing practitioners: the Housing Rights Group.
The Housing Rights Group is a new organisation open to all advisers and practitioners in the field of housing law.
Next meeting takes place at LSA’s Offices, 3rd Floor, Fleming House, 134 Renfrew Street, Glasgow, G3 6ST on 17th February 2011 from 2:00 to 4:00 pm on homelessness rights.
Other meetings will take place in June, September and December covering Housing Benefit and rent arrears, housing law and human and Home Owner and the Debtor Protection (Scotland) Act one year on.
Whilst the meetings are free s small donation is expected in order to cover costs. The HRG groups meetings do not qualify for CPD. For further information on the HRG please contact Fiona McPhail at LSA on 0141-353-3354 or email. Alternatively contact Colette McGinlay at
www.shelter.org.uk
.