Out-Law Guide | 30 Aug 2011 | 11:51 am | 6 min. read
A secure tenancy is the most common form of tenancy provided for residential purposes by local authorities. Secure tenants have strong rights, and can only be evicted in certain situations. A secure tenancy can only be terminated if one or more grounds set out in Schedule 2 of the Housing Act 1985 can be satisfied.
This guide considers the application of Ground 10A, which provides that a landlord can get possession of a secure tenancy if the property is in an area which has a redevelopment scheme and the property or part of it is affected by that scheme.
This provides that a landlord can gain possession of a secure tenancy if:
Redevelopment scheme approved by the Secretary of State
Before making an application to the Secretary of State, the landlord must serve notice of its intention to do so on every secure tenant affected by the proposal. This notice must state:
The landlord must then consider any representations made by tenants within that period. There is no obligation on the landlord to do anything more than consider those representations. Only once any representations have been considered can the landlord make its application to the Secretary of State.
In deciding whether to approve the scheme, the Secretary of State is obliged to take various factors into account including:
Intention to dispose of the property within a reasonable time
There is no reported case law dealing with what is a 'reasonable period of time' in which to be disposing of the property after taking possession. It should be noted, however, that there is no requirement that the redevelopment take place within a reasonable time. The Secretary of State will take this into account when deciding whether to approve the redevelopment scheme in the first place, as above.
Suitable alternative accommodation
Ultimately the onus is on the landlord to prove that the alternative accommodation it will provide is suitable. The Housing Act provides some guidance as to what is required.
The landlord will need to show that:
In deciding whether the alternative accommodation is reasonably suitable for the tenant and his or her family, the court will take account of:
Procedure for recovering possession
In order to recover possession under Ground 10A, the landlord will first have to consult with tenants and apply to the Secretary of State for approval of the redevelopment scheme, as above.
Once approval has been granted – even if that approval is subject to conditions – and if the tenant is not prepared to leave voluntarily, a Notice of Possession needs to be served which specifies:
The alternative accommodation does not need to have been offered before the notice is served, but it would be a good idea to do so. A comprehensive re-housing strategy should be adopted, under which tenants are encouraged to move out voluntarily followed by formal offers of alternative accommodation being made to tenants before the notice is served.
After the expiry of the notice period, possession proceedings can begin. It is critical that the alternative accommodation is available at the date of the hearing.
A possession hearing is usually granted between six to eight weeks after the date of issuing proceedings. This hearing is usually listed for no more than 10 minutes. Given the nature of the grounds being relied on, this is unlikely to be sufficient. If the proceedings are contested, which would be likely if the tenant has not moved out voluntarily, the first hearing will be treated as a directions hearing and the court will order directions progressing the matter to a final hearing. Contested proceedings could take at least 12 months to reach a final hearing from the date that the proceedings are issued – possibly longer if the tenant appeals. It may be possible to accelerate the progression of these proceedings. There are various criteria that the landlord would need to establish in order to do so, and this is often difficult.
At the final hearing, the court will consider whether or not the criteria for Ground 10A have been satisfied. If the court is satisfied that the Ground 10A criteria have been met and suitable accommodation is available for the tenant it must make an order for possession. The court does not need to consider whether it is reasonable to make an order for possession.
Usually the date the order requires the tenant to leave the property is 28 days after the date of the hearing. However, the judge has discretion to reduce or extend this time period.
If the tenant does not leave by the date given in the order for possession, a warrant of possession will need to be issued. If a County Court bailiff is used to carry out the eviction the process from the issue of the warrant and the eviction itself could take between four and eight weeks depending on the bailiff's availability. If necessary, this process can be speeded up potentially to between one and two weeks by using a High Court Enforcement Officer.
If proceedings are contested and an application to suspend a warrant of possession is made by the tenant, the process could take 12 to 18 months from the issue of the Notice of Possession to enforcing the order for possession. If the requisite criteria are present, it should be possible to speed this up with the result that, theoretically, the process could be shortened to between six and nine months. If either party appeals the process will take considerably longer.