Tenancy Policy

 

Purpose

This Policy sets outs our approach to the tenancy management of our social housing rented accommodation.  The Policy includes:

 

  • The types of occupation or tenancy agreement we use
  • How we support vulnerable tenants, sustain tenancies, and minimise eviction
  • Assignment, succession, joint and sole tenancies, mutual exchange
  • Tenancy Fraud, squatters, and illegal occupier

 

Aim

  • ensure that our social housing tenancies are granted in a consistent, transparent, and fair way
  • ensure we comply with all legal and regulatory requirements & standards
  • ensure we have regard to our Local Authority partners’ tenure policy and aid in the development of their tenure strategies.
  • To never reduce a tenant’s security of tenure without a court order.

 

Scope

This policy applies to our social housing rented homes only.

 

Responsibilities

Estuary’s Board of Management, having formally adopted the Tenancy Policy, accepts overall responsibility for its implementation and for monitoring its effectiveness.

Directors and Assistant Directors are responsible for ensuring the Tenancy Policy is adhered to ensure we are meeting any regulatory standards.

All staff are responsible for understanding this policy and should consider this policy when liaising and assisting customers. 

 

Legal & Regulation

 

Commitment to Equality and Diversity

At Estuary Housing Association (EHA) we value inclusiveness, and we are committed to embedding equality and diversity at the heart of our work. We aim to be an inclusive organisation, where individual differences are respected, where staff, people who use services, as well as their families and carers, are treated with dignity and on the basis of their merits, abilities and needs, and where everyone has a fair opportunity to fulfil their potential without suffering discrimination or disadvantage.

1 - Introduction

 

1. Introduction

1.1 The Regulator of Social Housing sets out within their Tenancy Standard that we are required to publish clear and accessible policies.  This policy needs to outline our approach to tenancy management, including interventions to sustain tenancies and prevent unnecessary evictions, and tackling tenancy fraud.

1.2 We will allow tenants and prospective tenants to be supported by a representative or advocate in interactions about our services. This is part of our Consent Procedure.

2 - Types of Agreement and Size of Accommodation

2    Types of Agreement and size of accommodation

2.1. The type of tenancy issued by us will be influenced by several factors including:-

  • The date the tenancy commenced
  • The type of tenancy, if any, held immediately prior to the new tenancy being granted
  • The purpose of property to be occupied
  • Restrictions arising from nomination agreements, deed title, covenants, S106 and any other planning consents and funding streams used to provide the properties.

2.2. Our tenancy agreements contain the rights and responsibilities associated with the tenancy type.  Failure to abide by these terms and conditions will put a tenancy at risk.

2.3. Rents are determined in accordance with the Regulator of Social Housings Rent Standard and Rent Policy Statement. Refer to our Rent Setting Policy.

2.4. Anyone who was social housing tenant on or before 1 April 2012 and have remained social housing tenants since that date we will issue a tenancy with no less security; be it they are a current Estuary Housing Association tenant or a tenant moving to one of our homes from another registered provider.  It does not apply where tenants choose to move to accommodation let on Affordable Rent terms, though we will generally issue the same security.

2.5. Where we have moved tenants to alternative accommodation during any development or other works, we will give them the same type of tenancy on their return to settled accommodation.

2.6. We will generally not allow a home to be under-occupied. This means we will not agree to tenancy where we feel the home is too large for the needs of the household, in terms of excess rooms and more specifically bedrooms.  The size of accommodation offered or granted will be in line with our Lettings Policy and Mutual Exchange Policy.

3 - Types of Tenancy

Types of Tenancy

3. Types of Tenancy

 

3.1 Starter (Probationary) Tenancy

3.1.1 We will offer a Starter Tenancy to anyone that does not currently hold a social housing tenancy except for our sheltered accommodation.  A Starter Tenancy is a weekly periodic Assured Shorthold Tenancy for an initial term of 12 months.  During the period of the Starter Tenancy there is no right to assign the tenancy, transfer, or request tenant improvements.

3.1.2 During the initial 12 months your tenancy will be reviewed.  After 12 months, if the tenancy has been conducted satisfactorily, the tenancy will automatically become an assured (lifetime) tenancy.

3.1.3 If a Starter Tenancy is not conducted satisfactorily, and the breach is minor we will consider extending the probationary period for up to 6 months.  For breaches relating to but not limited to anti-social behaviour, domestic abuse, harassment we may take legal action to end the tenancy.  We will outline our reasons for extending or ending the Starter Tenancy in writing.

 

3.2 Assured Tenancy (Lifetime tenancy)

3.2.2 We will offer a periodic assured non-shorthold tenancy (Assured Tenancy) to existing social housing rented tenants of Estuary, other Registered Providers and Councils who move to another of our social rented homes.  We will also offer an Assured Tenancy on the successful completion of a Starter Tenancy,

3.2.3 Providing an Assured tenant does not breach the tenancy conditions, they will usually be able to stay in their home for the rest of their life (referred to as a lifetime tenancy).  If they transfer to another Estuary property, they will be granted another Assured Tenancy.

 

3.3 Assured Shorthold Tenancy (non-fixed term)

3.3.1 This tenancy may be used where:

  1. a prospective tenant currently does not have the ‘right to remain’ in the UK.  In this instance the tenancy will be a rolling weekly tenancy can be ended at any time after six months from the start of the tenancy by Estuary giving two months’ notice.
  2. the tenancy is in a Market Rent home, will be let as an assured shorthold monthly rolling tenancy basis however these tenancies are not covered within this Policy.

3.3.2 In these examples we will offer an assured shorthold tenancy if there is no regulatory requirement to offer a more secure tenancy.

 

3.4 Secure Tenancy

3.4.1 These tenancies are typically the older tenancies granted prior to 15th January 1989.  Providing a tenant does not breach their tenancy conditions, they will usually be able to stay in their home for the rest of their life.

 

3.5 Fixed Term Tenancy

3.5.1 From 1st October 2022, we no longer issue Fixed Term Tenancies.  However, we still have tenants on Fixed Term Tenancies.  When these existing Fixed Term Tenancies are coming to an end, we will generally grant a new Assured Tenancy.  However, following will apply:

  • Offer an Assured Tenancy at the same home where this still meets the needs of the household.
  • Where the current home is significantly underoccupied (more than one bedroom spare) or a tenant needs adaptions which cannot be completed in their current home, we will seek to offer an assured tenancy at another more suitable home.  Whilst waiting for an offer of a new home the fixed term tenancy will lapse onto a weekly periodic tenancy.
  • Where there have been significant breaches of tenancy, we may seek to end the tenancy and require the household to move out. We will inform tenants of our decision at least six months before the fixed term is due to end in a ‘Minded to Notice’.

3.5.2 Where there have been minor breaches of tenancy, with no legal action we may still agree to issue an assured tenancy.  Any rent arrears will become part of this new tenancy agreement.  

3.5.3 Where we are unable to offer an alternative home, where we have agreed to, before the end of the fixed term, the fixed term tenancy will lapse onto a weekly periodic tenancy.:

3.5.4 We will not offer you another tenancy where (though this list is not exhaustive):

  1. There is any valid court order.  Where the court order is being adhered to we may allow you to remain in the property on a rolling periodic tenancy basis.
  2. Serious and/or persistent breach of tenancy conditions, even where there is not a current court order.
  3. Serious rent arrears^ of over 10 weeks, or persistent failure to pay rent on time.
  4. Serious and/or persistent anti-social behaviour, including perpetrators of domestic abuse and harassment, even where there is not a current court order.
  5. No right of succession.
  6. Using the home for illegal purposes.
  7. Allowing the home to fall into disrepair through neglect.
  8. Illegal occupation or subletting.
  9. Tenancy fraud.
  10. Abandonment of the home.
  11. Not occupying the home as your only principal home and/or you have another home you could occupy.
  12. You are not eligible for social housing as defined by our Lettings Policy

3.5.5 We will obtain a Court Order for Possession of your home if you do not leave following the decision not to renew your tenancy.

3.5.6 In cases where we are not offering another tenancy, we will provide advice on other housing options i.e., shared ownership, market rent.  We will signpost to agencies such as Citizens Advice, local authority homelessness and housing advice service.

3.6 Mortgage Rescue

3.6.1 We have several properties which were purchased under the Governments mortgage rescue scheme.  These homes were originally let with a 3-year fixed term tenancy which specifically relate to mortgage rescue.  This tenancy however does limit a tenant’s ability to move as there are no rights to transfer or mutual exchange.

3.6.2 Before the end each 3-year term we will review the conduct of the tenancy.  Where the tenancy is satisfactory the tenants will be offered either another 3-year fixed term mortgage rescue tenancy or considered for an assured tenancy.

3.6.3 Irrespective of the type of tenancy granted the rent type will remain an affordable rent, however any change in tenancy will result in the rent being reviewed.
 

 

 

3.7 Demoted Tenancies

3.7.1 Where an existing tenant causes persistent and/or serious anti-social behaviour, or allows it to be caused, we can apply to a County Court for an order to reduce the security of tenure to a Demoted Tenancy.

3.7.2 If granted a Demoted Tenancy means the tenancy will be like a Starter Tenancy for the period of the demotion, which has fewer rights. i.e., no right to exchange or transfer.

 

3.8 Licence Agreements

3.8.1 Licence agreements are generally used where we let a property on a temporary basis, i.e., where tenants have been decanted from their permanent home to a temporary home for major works.

3.8.2 Where we use a licence agreement this will be an excluded licence, meaning we do not require a court order to ask the resident to move or evict them.  These are excluded from the Protection of Eviction Act 1977.

 

4 - Joint Tenancies

4. Joint Tenancies

4.1 Our policy on joint tenancies applies to all the tenancy types contained within this Policy.

4.2 A joint tenancy is where two or more people (legally up to four) have signed the tenancy agreement.  However, under Estuary Housing Association Tenancy Policy we will not usually offer joint tenancies to more than two people.

4.3 We will generally only create joint tenancies between married couples, civil partners, and people in a relationship who live together as partners. We do not offer joint tenancies to parent and child, siblings, other family members or friends living in the household. However, where a joint tenancy, of this type, is already held with another registered provider we will consider offering a similar tenancy.

4.4 Exceptions to 4.2 and 4.3 may be considered where it is to support a vulnerable adult sustain their tenancy.

4.5 Joint tenants will be required to sign the tenancy agreement and understand that:

a) Each tenant has the right to occupy the property

b) Neither tenant can exclude the other, unless they have an appropriate court order or injunction

c) Each tenant is jointly and severally (individually) liable for the tenancy and the rent.  This means both are responsible for complying with whole tenancy. This responsibility continues even if one tenant moves out of the property, whilst they remain a joint tenant

d) Either tenant can end the tenancy (except if the tenancy is for a fixed term, or an assured shorthold tenancy).

4.6 In cases of domestic abuse where one tenant ends the tenancy, we may offer the tenancy to the remaining tenant provided they are eligible for our homes.  They must require this size and type of accommodation to remain in the same home. Where a household would be under occupying their current home, we may offer them a tenancy in smaller accommodation unless there is a proven need for them to remain.  We will only do this where the household would be considered in priority need, were they to be made homeless.

5 - Succession

5. Succession

5.1 Succession is a legal process of another household member taking over a Tenancy when the Tenant passes away.  However, the rights to who can take over the tenancy depends on the type of tenancy held.  Where a tenant dies Estuary Housing Association will grant rights of succession to other occupiers within legislative requirements and any discretionary conditions contained within their specific tenancy agreement.

5.2 In general terms for Secure and Assured tenants on the death of a sole Tenant who is not already a Successor the Tenancy will pass to the Tenant’s spouse, civil partner, or other partner under the provisions of the Housing Act 1988 if they were living with the Tenant at the time of the Tenant’s death.

5.3 If the tenancy has previously been succeeded (which includes assignment) then no further succession is possible.  Under these circumstances any remaining household members would be required to leave the home.

5.4 Tenancies have different rights so reference to their specific tenancy is required to clarify the individual rights for remaining occupiers of the property.

5.5 We may have granted extra contractual rights of succession; these rights will stem from the tenancy agreement rather than from statute.

5.6 We will grant a new tenancy agreement for contractual successors of tenancy agreements granted before 1 April 2012.  We will grant a Starter Tenancy for the first year.  The type of tenancy we offer after the first year will be in line with this Policy, and not necessarily the same as the previous tenancy.

5.7 Where discretionary succession is being claimed these cases will be decided by our Complex Case Panel based on the individual circumstances. 

5.8 In all cases of succession, whether statutory or discretionary, where a succession would create under occupation; or the property is adapted and the successor is not in need of the adaptions, we will offer alternative accommodation suitable for the needs of that household.

6 - Assignment

6. Assignment

6.1 Assignment is the legal transfer of a tenancy.  A tenancy can be assigned if:

  • The law says which is a statutory or legal right.
  • The tenancy agreement states it, which is a contractual right.

6.2 An assignor is the tenant who passes on their tenancy.  The assignee is the person taking over the tenancy.

6.3 The assignee must be eligible under our Lettings Policy and will take on the rights, responsibilities, and terms (including tenancy length) of the assignor, unless there are legal reasons which prevent this.

6.4 We will not normally give permission to assign if the assignee does not need the size and type of home, or where there is an existing breach of tenancy.

7 - Mutual Exchange

7. Mutual Exchange

7.1 There is a separate Mutual Exchange Policy and should be read in conjunction with this Policy.

7.2 We will offer tenants seeking to exchange with information about the implications for their tenancy, rent and service charges.

7.3 Joint tenants must have the agreement of the other to exchange.  Where either tenant disputes an exchange proceeding we will not allow the exchange to take place.

7.4 Where the tenancies involved in the exchange are of the same type i.e., assured to assured, fixed term to fixed term, the exchange can be completed by assignment.

7.5 Fixed term tenants exchanging with assured tenants will both need to end their current tenancy, and we will issue a new Assured tenancy.  This process is called ‘surrender and regrant’.  Any previous fixed term tenant will be offered an Assured tenancy.

8 - Tenancies for Minors

8.1 Tenancies for Minors

  • A person under 18 may be nominated to use from the local authority as they may have a duty to house them under Part 7 of the Housing Act 1996.  However, under Schedule 1 (6) of the Law of Property Act 1925 a Minor (under the age of 18) is not capable of holding a legal interest in a property.  We will therefore either: -
  • Grant them a licence agreement where the resident is not being given exclusive use of the property or
  • Where they do have exclusive use, we will enter into a separate agreement called “an agreement for tenancy for minors”.  This agreement would then be attached to the tenancy agreement that would have been granted to them had they been 18 or over.  The minor must adhere to the terms of the relevant tenancy and the actual tenancy agreement will come into effect when they reach 18.  When entering into a separate agreement for minors we would require a Trustee to hold the tenancy in trust for the minor.  The Trustee may be a family member, support agency or local authority.  We may also ask for the Trustee to act as a guarantor for the minor.

 

9 - Tenancy Management Issues

9.1.   Succession, assignments, mutual exchanges, tenancy monitoring, reviews and ending of tenancies will take place in accordance with the relevant Policies.

9.2.   If we agree for a tenant to move to another Estuary Housing Association home and they have arrears, we will transfer these arrears on to their new tenancy and rent account. By not paying the arrears from their previous tenancy will be a breach of a new tenancy.

10 - Sustaining Tenancies, Supporting Vulnerable Tenants and Preventing Unnecessary Eviction

 

10. Sustaining tenancies, supporting vulnerable tenants, and preventing eviction

10.1 We want to prevent evictions and maintain tenancies.  We will therefore insist support is in place before an offer of a tenancy is made where it is evident the household requires the support to maintain a tenancy.

10.2 We will offer appropriate advice and support to help tenants meet the conditions of their tenancy and to remain in their homes.  Where we are unable to meet these needs, we will work with tenants to find appropriate external support services.

10.3 We have a duty to safeguard children and vulnerable people.  We will liaise with partners to ensure we met this duty and make safeguarding referrals whenever necessary.

10.4 Any decision to proceed with eviction is made by our Complex Case Panel and is proportionate to the severity of the breach of tenancy. 
 

10.5 In line with our ‘Commitment to Refer’, we will inform the local authority housing advice service where we intend to proceed to eviction.  We will also alert Social Care and other agencies involved with the household where we are aware the household contains children or potentially vulnerable adults.

11 - Preventing Tenancy Fraud

 

11. Preventing Tenancy Fraud

11.1 When applying for housing, issuing new tenancies or changes are made to a tenancy following a tenant request, our staff will take all reasonable steps to confirm identities and prevent fraud.  We must ensure out homes are occupied by people with genuine housing need.  With the shortage of social housing, it is important we manage risk of tenancy fraud effectively.

11.2 We treat tenancy fraud seriously and have a zero-tolerance approach. We’re committed to ensuring our homes are occupied by the people they were lawfully let to and protected for use by people with genuine housing need.

11.3 We will request the assistance of the local authority and/or the Police to bring criminal charges against those who commit tenancy fraud and any related frauds.

We consider tenancy fraud to include (but may not be limited to):

  • Subletting the whole of a property (whether for profit or not)
  • Not residing in the property as your only or principal home
  • Misrepresentation by a customer (or a person on their behalf even if the resident doesn’t know) which results in the offer/ assignment and acceptance of a property
  • Selling the keys to a property
  • False applications to succeed to a tenancy following the death of the resident.
  • False applications to acquire or buy the property or to become a shared owner
  • Applications for a person to become a joint tenant which contain false information
  • Making an application for Right to Acquire or Right to Buy with false and or misleading information

11.4 If we have evidence of tenancy fraud, we will take the most appropriate action considering the type and extent of fraud including:

  • Conducting an investigation, including visiting unannounced
  • Eviction by obtaining a possession order, unless we have evidence the tenant has abandoned the property in which case, we might take back possession without going to court following service of a Notice to Quit.
  • Recovering any profits made from sub-letting the home
  • Supporting the relevant local authority to prosecute those who sub-let our homes or misrepresented facts.

11.5 The Prevention of Social Housing Fraud Act 2013 makes sub-letting a social housing property illegal.  If a tenant is sub-letting, they can be prosecuted.  If convicted, they may be:

  • Required to pay any profits made from the fraud
  • Fined up to £50,000
  • Sentenced to up to two years in prison.

 
 

12 - Squatters and Illegal Occupiers

 

12. Squatters and Illegal Occupiers

12.1 A squatter is a trespasser, someone who has entered or remained on the property without the consent of the person entitled to possession, the Tenant or Landlord. An illegal Occupier is a person who entered the property with the consent of the tenant and remains there following termination of the tenancy. This will include for example:

  • Unlawful subletting
  • A person remaining in the property following the death of tenant who has no entitlement to succeed
  • A person who was an Assured joint tenant, but the other party gave us Notice to Quit to end the tenancy.

12.2 We will always act to evict illegal occupants from our property. Squatting is a criminal offence and those people risk being arrested if they do not leave the property.
 

13 - Appeals

 

13 Appeals

13.1 Tenants can make an appeal where: -

  1. we have decided not to grant a tenancy on the expiry of a fixed term
  2. they do not agree with the grounds for the service of a Minded To Notice
  3. succession has not been agreed
  4. we have refused to allow a lodger
  5. we have refused a mutual exchange
  6. we have found the starter tenancy has not been conducted satisfactorily and we are going to extend or terminate the starter tenancy.

13.2 A tenant must appeal within 21 working days of being notified of any decision we have setting their grounds for their appeal.  The appeal will normally be required in writing. However, where this is not possible, an oral hearing will be granted if requested by the tenant.

13.3 The appeal will be heard by our Complex Case Panel.  The customer will be notified of the outcome of the appeal in writing.  If the outcome of the appeal is to confirm the original decision, we will give the reasons for confirming the decision.  There are no further rights of appeal.

 
 

14 - Absence of Relationship Between Tenure Policy and an Affordable Rent

 

14. Absence of Relationship between Tenure Policy and an Affordable Rent

14.1 The decision on the security of tenure offered under Estuary’s Tenure Policy is independent of any decision on the rent applied to a property.
 

15 - Relevant Legislation and Related Documents

 

15. Relevant documents

  • Mutual Exchange Policy
  • Lettings Policy
  • Income Management Policy
  • Anti-social behaviour Policy
  • Urgent Rehousing Policy
  • Customer Feedback Policy
  • Rent Setting Policy
  • Safeguarding Policy
  • Consent Procedure