Non-occupation, subletting and disputed succession claims are issues that show no sign of going away. Discovering that occupiers are not living in a property as legally obliged is unfortunately, not uncommon for many housing associations.
Tackling these issues can be challenging but following these three key steps will help housing officers to navigate the process effectively.
- Establish legal rights
First and foremost, it is essential to work out your legal position and the legal rights of the tenant. These will differ depending on the type of tenancy and whether the home is not occupied, sublet or if someone dies.
If a tenant abandons a property and fails to occupy it as their only or principal home, they lose security of tenure and lose their security of tenure.
If a tenant dies, the tenant will also lose their security of tenure if no one is entitled to succeed the tenant. However, if someone is entitled to succeed the tenancy then that tenancy will immediately vest in the successor upon the death of the tenant and no issues of non-occupation will arise.
In the case of sub-letting, tenants aren’t permitted to sublet all or part of their home without the landlord’s written consent. Doing so will breach their tenancy agreement and the landlord may seek possession of the property.
- Formulate potential remedies
Once the legal rights of both parties have been established, housing officers must consider how they can remedy the issue.
For non-occupancy and subletting the whole of a property the common solution is to seek possession against the tenant for loss of security of tenure pursuant to a Notice to Quit along with a secondary Notice of Seeking Possession for breach of tenancy. It is important to remember that if a Notice of Seeking Possession is served it must be served “without prejudice to any other notice served” so as not to undermine the mandatory ground for possession provided by the Notice to Quit. The benefit of serving both notices is that if there is any defect in your Notice to Quit you can still rely on the Notice of Seeking Possession which provides a discretionary ground for possession.
If a tenant has died and no one is entitled to succeed the tenancy you must also serve a Notice to Quit but this must be address to “The Personal Representatives of …” and served on the Public Trustee at the time it is served at the property
- Gather evidence
Once a remedy has been determined, housing officers must gather the evidence required to prove the case. The evidence needed will depend on whether the breach is as a result of non-occupation by the tenant, contested succession, unauthorised assignment or sub-letting.
For non-occupation or failed succession, evidence may include information from neighbours as to who they have witnessed coming and going from the property, tenancy audits, regular property visits or documentation such as utility bills or local authority records.
You can also request a list of documents from tenants and would be successors as this will put the onus on them to a certain extent to prove their occupation at the property.
In terms of subletting housing officers should consider contacting local authority tenancy fraud teams to see if they can assist in your evidence gathering.
For further advice on non-occupation, subletting and disputed succession claims, Devonshires offers free training for housing associations, providing comprehensive information and guidance on managing these issues.
Please contact Samantha Grix in our Housing Management team for details.