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Council advise to break law?

Council advise to break law?

Postby Hairyloon » Wed Jul 26, 2017 11:43 am

Not entirely a question of Landlord & Tenant law, but triggered by a landlord and tenant question.

(A) rents a house to (B). He wants to sell so he gives proper notice to (B).
(B) approaches the council and tells them he is going to be homeless.

The council's advise is to sit tight and wait until the landlord has come back with an eviction notice from the court.

While I can see merit in the advice from the tenant's point of view, I cannot see how that is a proper response from the council.
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Re: Council advise to break law?

Postby atticus » Wed Jul 26, 2017 11:54 am

Councils do not have a duty to house those who are "intentionally homeless". Moving out voluntarily is treated as intentional homelessness. A court order changes that.

The situation described is fairly common. There is no advice to break the law.
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Re: Council advise to break law?

Postby dls » Wed Jul 26, 2017 2:36 pm

Councils are desperate for accommodation.
A person who might become homeless in two or three months is not homeless.
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Re: Council advise to break law?

Postby Boo » Wed Jul 26, 2017 5:23 pm

Okay...
The housing options team look at all options.
Staying put is one of them. Although staying put may incur court costs.

They can accommodate those who have been made intentionally homeless. But it will depend.on circumstances.

Read up on the 5 tests of homelessness:
Eligibility. Homeless or likely to be made homeless within 28 days - soon to be 56. Priority group. Intentionality. Local connection.
I hope I got them in the right order!

Homeless assessments will determine what duty a local authority has to an individual or family - interim accommodation may be offered while investigations take place.

Most authorities are struggling to accommodate people so the key is preventing homelessness and not accommodating people in emergency accommodation at crazy prices. Hence the new homeless prevention bill coming into force this autumn.
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Re: Council advise to break law?

Postby Hairyloon » Wed Jul 26, 2017 5:52 pm

atticus wrote:Moving out voluntarily is treated as intentional homelessness. A court order changes that.


Upon receiving notice to quit, a tenant is legally obliged to move out: it is not voluntary.
The court order is to enforce those legal obligations.

The situation described is fairly common. There is no advice to break the law.


If the situation is common, then perhaps more effort should go into finding a proper solution. If they are advising to not fulfil one's legal obligations, then they are advising to break the law. It would be much the same as advice to an employer to not pay his staff.
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Re: Council advise to break law?

Postby atticus » Wed Jul 26, 2017 6:12 pm

I think that the following sentence contains an error which leads to you misunderstanding.
Hairyloon wrote:Upon receiving notice to quit, a tenant is legally obliged to move out

I disagree with that proposition, but will reconsider if you can point to some authority for what you have said.

I think that the correct position is that service of a valid notice to quit, which the tenant has not complied with, gives a landlord grounds to apply to the Court for a possession order.

From that, the "proper solution" follows. If you wait for a court order you are not intentionally homeless. Do not jump the gun.
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Re: Council advise to break law?

Postby Hairyloon » Wed Jul 26, 2017 9:27 pm

atticus wrote:I think that the following sentence contains an error which leads to you misunderstanding.
Hairyloon wrote:Upon receiving notice to quit, a tenant is legally obliged to move out

I disagree with that proposition, but will reconsider if you can point to some authority for what you have said.


It is derived from the principle that judges do not make the law.

I think that the correct position is that service of a valid notice to quit, which the tenant has not complied with, gives a landlord grounds to apply to the Court for a possession order.

I cannot work out if that wording is careful or careless. :?
Are the grounds not grounds that the possession order should be granted rather than being grounds to apply to the court.
Those grounds being that the law says that one must move out within the appropriate time following an appropriately served notice.
The purpose of the court is to decide on and inform the parties what the law is in the given situation.

If the law says that the tenant should have moved out in accordance with the terms of the notice then the landlord will be granted the possession order.
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Re: Council advise to break law?

Postby theycantdothat » Wed Jul 26, 2017 11:17 pm

Assuming we are talking about assured (shorthold) tenancies...

A notice to quit given by a landlord is of no effect.

No notice served by a landlord under the Housing Act 1988 ends a tenancy.

Where a court makes an order for possession the tenancy continues until the order is executed.

Since it is in the nature of a tenancy to give the tenant the right to possession, the tenant cannot be under any obligation to leave the premises before the court order is executed and certainly not upon the expiry of a landlord's notice.
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Re: Council advise to break law?

Postby atticus » Thu Jul 27, 2017 9:00 am

A carefully worded point:

If the grounds do not exist for the court to make an order, the grounds do not exist to apply for that order. An application which does not make out a case that grounds exist on which the order may be made is likely to be struck out.
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Re: Council advise to break law?

Postby dls » Thu Jul 27, 2017 2:46 pm

Upon receiving notice to quit, a tenant is legally obliged to move out: it is not voluntary.


Not quite.

In an assured tenancy, the notice is not a notice to quit, but a different thing - a notice that the tenancy will come to an end on a date at least two months into the future. The notice does not say that the property must be vacated on that day, but rather that, in effect, an actual obligation to leave will arise on the date fixed by the court (a further month on at least).
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