Repossession of rented social housing
Up to recently, a local authority could evict a tenant without giving a reason, as long as it followed the correct procedure. This meant first issuing a notice to quit and then applying to court for an order. However, in practice, local authorities did not evict their tenants without reason. If you paid your rent and complied with other conditions of the tenancy, you would normally be able to stay in your home for as long as you wanted.
The main reason for repossessions of local authority rented accommodation in recent years has been arrears of rent. Anti-social behaviour has also been the cause of some repossessions.
Legal basis for repossession
Up to recently, the legal basis for repossession was Section 62 of the Housing Act 1966. In 2012, the Supreme Court held that this section was not compatible with the European Convention on Human Rights because it did not allow for an independent hearing of the merits of the proposed repossession.
The Housing (Miscellaneous Provisions) Act 2014 replaces Section 62 with new procedures, which involve an independent assessment of the merits of the proposed repossession. These procedures are set out in Part 2 of the Act, which came into effect on 13 April 2015.
The new procedures apply where local authorities want to repossess because:
- There has been a serious or repeated breach of a condition of the tenancy agreement, for example, anti-social behaviour or non-payment of rent
- The dwelling has been abandoned by the tenant and is occupied by a squatter
- The tenant has died and the dwelling is occupied by someone who is not entitled to succeed to the tenancy
The new procedures provide that a local authority may issue a tenancy warning if there is an alleged breach of the tenancy conditions, such as non-payment of rent or anti-social behaviour. A tenancy warning may not be necessary in the case of very serious breaches, but if the local authority applies to repossess the dwelling without first issuing a tenancy warning, the application for a possession order must state the reasons why no such warning was issued.
The Housing (Miscellaneous Provisions) Act 2014 sets out detailed requirements as regards tenancy warnings. The Housing (Local Authority Tenancy Warnings) Regulations 2015 set out who can be validly served with a warning in the tenant’s absence; alternative methods for serving a warning; and the type of circumstances to be taken into account for extending the period in which the tenant can seek a review.
Sections 7 and 8 of the Act set out particular requirements for how tenancy warnings should be issued where the terms of the tenancy agreement have been breached as regards anti-social behaviour (Section 7) and rent-related obligations (Section 8). See below for the specific requirements for such tenancy warnings.
Section 9 deals with tenancy warnings in relation to breaches of the tenancy agreement as regards any other matter. Such a warning must specify the breach, what needs to be done and the possibility that the local authority may look for a possession order against the tenant.
Section 7 deals with tenancy warnings in relation to anti-social behaviour and similar behaviour – including nuisance or conduct likely to annoy or disturb neighbours, or allowing a person to be in the dwelling in breach of an order excluding them from it.
The tenancy warning must:
- Set out what part of the tenancy agreement has been breached, the nature of the breach and the name (if known) of the household member involved
- Say when the breach occurred and its detrimental effects on the quality of life of people living nearby
- Require the tenant to ensure that the household member involved does (or stops doing) certain things so as to stop these detrimental effects continuing or happening again
- Warn the tenant that the local authority may initiate repossession proceedings or seek an excluding order if the breach continues or happens again within 12 months
- Warn the tenant that this tenancy warning may be taken into account over the next 3 years if the tenant, the household or the household member involved wishes to buy a local authority house or to be allocated another local authority dwelling
- Set out the tenant’s right to request a review of the tenancy warning
Section 8 deals with tenancy warnings in relation to breaches of rent-related obligations – either the rent agreed in the tenancy agreement or whatever repayments were agreed in a rescheduling arrangement.
The tenancy warning must:
- Set out the rent-related obligation that has been breached, the amount of arrears now owing and the period over which rent was not paid
- Require the tenant to pay the arrears immediately or, in case of hardship, contact the local authority to discuss rescheduling the payments
- Warn the tenant that the local authority may initiate repossession proceedings if the arrears are not paid or rescheduled within 2 months
- Warn the tenant that, even if the rent arrears are paid or rescheduled within 2 months, the local authority may initiate repossession proceedings (without a further tenancy warning) if the tenant misses a payment in the next 12 months, unless a further rescheduling is arranged
- Set out the legal provisions as regards rent arrears that have not been rescheduled
- Set out the tenant’s right to request a review of the tenancy warning
If the local authority knows that the tenant has other debts as well as the rent arrears, the tenancy warning must also include information on sources of advice on problem debt in general.
After a tenancy warning has issued
Under Section 10 of the Act the tenant is entitled to request an internal review of a tenancy warning. This request should normally be made within 10 working days of the issue of the warning – or within 20 working days in exceptional circumstances. The request should outline the grounds on which it is made, include any supporting documents and indicate whether the tenant or a household member wishes to make oral representations as part of the review. The review must be carried out by a local authority official who was not involved in the initial warning and who is more senior than the official who issued the warning.
In general, the reviewer should conclude the review within 20 working days of being appointed. However, if the review involves meeting the tenant or a household member, or if a variation to the warning is proposed, this may take up to 30 working days. The reviewer can decide to confirm the tenancy warning, vary its terms (after giving the tenant a chance for feedback) or annul the warning. The local authority must send the tenant a written copy of the decision.
In the case of intimidation, the reviewer can accept a statement by a Garda or a local authority official as evidence that a person has been engaged in anti-social behaviour.
If the tenant does not ask for a review, the warning takes effect from the second working day after the period for requesting a review has expired. If the tenant has asked for a review, and the warning has been upheld or varied, it comes into effect on the second working day after the decision was sent to the tenant.
Applying for repossession
If the tenant does not deal with the breach of the tenancy agreement, even after the tenancy warning, the local authority can apply to the District Court for a possession order to enable it to repossess the dwelling. The court hearing may be held in camera in some cases. The court may order the ending of the tenancy or, in the case of anti-social behaviour, may order the exclusion of a member of the household from the tenancy.
The local authority must generally give the tenant at least 10 days’ notice of the court hearing, but if the breach of the tenancy agreement is having serious effects on people living nearby, it must give the tenant a copy of the possession application as soon as it applies for the order, with a written explanation of why the tenant was not given the 10 days’ notice.
The possession application must give the grounds for the application, including full details of the breach, the name of person causing it (if known) and its effects on people living nearby. The application must also give details of any tenancy warnings issued to the tenant or household members within the last 5 years. If no tenancy warning was issued for the current breach, the application must give reasons why one was issued. If there is a tenancy warning for a similar breach currently under review, the application must give the reasons why the possession order is being sought at the same time.
If a possession order is granted, it gives the date on which the local authority can repossess the dwelling. This must be no sooner than 2 months (and no later than 9 months) after the date of the order. The tenancy will be terminated on the date that the local authority takes possession of the dwelling under the possession order.
Section 14 of the Act allows the local authority, in certain circumstances, to enter an abandoned dwelling that is at risk of damage or trespass. The local authority can do this either with the tenant’s consent or with a warrant from the District Court. However, if that property has been vandalised or is at imminent risk of damage, the local authority can enter it to do whatever is necessary, without getting a warrant.
If the local authority plans to repossess an abandoned dwelling, it must give the tenant 4 weeks to confirm whether or not they intend to occupy it again. After 4 weeks, the local authority can serve a notice on the tenant, ending the tenancy, and can then take possession of the dwelling without any further proceedings. The former tenant may apply to the District Court (within 6 months) for the termination to be reconsidered.
Occupiers who are not tenants
If someone who is not entitled to a tenancy is occupying a dwelling, the local authority can apply to the District Court for a possession order, setting out its grounds. It must have regard to protecting the identity of anyone who informed it of the occupation, if there is reason to believe that this is necessary.
If the tenant has died and the occupier is (or claims to be) a member of the late tenant’s household, but is not entitled to succeed to the tenancy, the local authority can apply for a possession order, setting out its grounds. If the occupier has applied for a succession tenancy and been refused, the possession application must give the basis for that refusal and refer to the local authority’s written policy on succession tenancies.
At least 10 working days before the District Court hearing, the local authority must give the occupant written notice of the hearing and details of the possession application.
The Court may decide to hear some or all of the case in camera.
The Court can make a possession order if it appears that:
- The local authority has grounds for the recovery of possession
- Repossession is a proportionate response to the occupier’s occupation of the dwelling and
- Making such an order is reasonable in all the circumstances
All decisions in the District Court (such as the granting of a possession order) may be appealed to the Circuit Court and a further appeal on a point of law may be made to the High Court.
Housing association tenants
Housing associations can evict you without any reason as long as they follow the correct procedure. This means first issuing a notice to quit and then applying to court for a possession order. However, in practice, housing associations do not evict their tenants without reason and if you pay your rent and comply with other conditions of the tenancy, you will normally be able to stay in your home for as long as you want.
If you are in temporary accommodation provided by a housing association, such as a short-term hostel, your position is much weaker and legally the housing association does not even need to issue a notice to quit. Again, however, in practice, housing associations do not evict their tenants without reason.