Property Guardianship – A Warning

We recently obtained a Possession Order for One Housing Group. The Defendant had argued that One Housing was being unreasonable for not agreeing to a Guardian being put into the tenant’s property as proposed by an organisation called Enterprise Housing Solutions (“EHS”) after the tenant had been sentenced to prison for over 12 months.

Where a tenant is imprisoned, Associations will often permit the use of a caretaker, who looks after the property in the tenant’s absence and ensures that the rent is paid.

EHS had approached One Housing with the Defendant’s authority to request keys as they wanted to let the property to a “Guardian” to act as a caretaker in the tenant’s absence. They proposed that the property would be let to the Guardian on an excluded licence at rates equivalent to market rent. EHS purports to be a not-for-profit organisation which exists to assist prisoners to maintain their tenancies so that they can return to their properties upon release.

After consideration of documentation provided by EHS, Devonshires advised One Housing not to accept the proposal for several reasons. The primary reasons were that EHS had failed to provide any certainty as to the intended parties to the agreement or any plausible reason how the agreement would avoid the whole of the property effectively being sublet in breach of the tenant’s tenancy. Crucially, if the Guardian caused problems at the address and refused to surrender up the property when asked, there was no certainty as to who would take legal action against them for possession or what would happen to the tenant if they wanted to return to the premises.

The document that EHS provided purported to be an excluded licence, however it was in fact likely to be a contractual tenancy, and possibly even an assured shorthold tenancy. Worryingly there was no recognition by EHS of these inherent problems or the fact that the Guardian would be protected by the Protection from Eviction Act 1977.

At Bow County Court, Deputy District Judge Kirby considered the arguments. He found that although EHS’s objectives were laudable, no Public Authority or Registered Provider could be expected to agree to the proposal given the uncertainty around the property rights that were being created.

Devonshires has received other reports of EHS approaching other clients with similar proposals and we recommend that legal advice is sought before you respond to such queries.

For more information please contact:
Anna Bennett, Solicitor
020 7880 4348


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