Correct Occupation of Council Property

Unlawful Subletting, Unauthorised Occupancy and Non-Occupation of Council property.

Background:

Tenancy misuse can take a variety of forms and can occur at any stage during the tenancy life-cycle: From obtaining a tenancy by deception through to failing to notify the Council when a tenant moves out, or passes away.

It is a requirement of the Council's Introductory and Secure Tenancy Agreement that the tenant occupies the property as their "only or principal home" and does not move out and sublet the property. In some cases unlawful subletting can generate lucrative profits for individuals or organised groups.

Tenancy misuse can also occur when the tenant abandons their property by leaving permanently and not notifying the landlord. Further misuse can arise when some belongings are left in the property, Housing Benefit may continue to be claimed, and the tenant visits the property periodically but is not using the property as their "only or principle home".

The importance of dealing with the problem:

There is potentially a huge financial cost to the Council if our properties are not occupied in accordance with the terms of the tenancy agreement. There is also the potential for unlawful occupiers to overcrowd properties and cause anti-social behaviour. This has an adverse effect on creating stable communities.

One of the Council's strategic housing objectives is to increase housing supply and to make best use of it's existing housing stock. This cannot be achieved when tenants who should be occupying the property are not actually in residence.

The "Tenants Services Authority" is the regulatory body for social housing in England. The TSA also places a requirement on the Council to set out how we will deal with unlawful subletting, unlawful occupancy and non-occupation of Council property.

At a time of increasing demand for access to social housing, the Council is taking a pro-active approach in dealing with this problem, and will take legal steps to recover property not being occupied correctly.

If you suspect that a property is not being occupied correctly please report this in confidence on
our answer phone reporting line: 01323 443393.

What it says in your tenancy agreement about occupying your property:

It is the requirement of a tenant(s) holding an Introductory Tenancy, or a Secure Tenancy, that the property is occupied as their "only or principal" home, and that the property is not wholly sub-let.

These requirements are set out in Section 9 of the Council's Tenancy agreement.

Can I take in a lodger?

An Introductory Tenant does not have the right to take in a lodger, but as a Secure Tenant you are permitted to take in a lodger. The Housing Department would encourage you to advise when us you intend to take in a lodger, and there is a standard form available to use for this purpose, and this form is also available on line.

In taking in a lodger you are not permitted to make the property overcrowded, and you are responsible for the behaviour of your lodger.

If you are claiming Housing Benefit and/or Council Tax Benefit you must inform the relevant department's of the change in your household's circumstances.

Taking in a lodger is dealt with in Section 7 of the Council's Tenancy Agreement.

What is subletting part of the property?

Subletting part of the property, whilst the tenant remains in occupation, can broadly be described as a more formal arrangement than taking in a lodger.

If you are considering subletting part of the property you must first obtain permission from the Head of Housing by writing in to the Housing Department.

If you are unsure about whether you are taking in a lodger or subletting part of the property, talk to your Housing Officer before allowing that person to share your home.

What is subletting the whole property?

This is known as unlawful sub-letting. It describes the situation where the tenant moves out of their Council property, allows other persons to use the whole property, usually in return for payment of rent.

Subletting the whole of the property in this way is not allowed for under a Secure Tenancy. When a tenant sublets the whole property then the tenancy ceases to be secure. Once security has been lost it cannot be regained, even if the tenant moves back into the property.

Section 9 of the Council's Introductory and Secure Tenancy Agreement explains in paragraphs 9.1 and 9.3 that tenants are required to live in the property as their "only or principal" home. The tenancy must not be transferred to any other party (except as permitted by law), and neither is it permitted for the tenant (s) to move out of the property, and sub-let it as a whole.

Examples of unlawful subletting include:

Subletting the whole property to a single household, tenant not occupying.

Multiple sublets within one property, tenant not occupying.

Non-occupation by tenant as their principal home, and allowing another household to occupy the property and pay the tenant rent.

'Key selling' is where the tenant leaves the property and passes on the keys in return for a one-off lump sum payment or favour

In cases where the Council identifies unlawful subletting is taking place, legal action will be taken to recover possession of the property.

Authorised subletting

The Council recognises that situations may arise which require a tenant to live elsewhere temporarily. The tenant(s) however has every intention of returning and still considers their property as their "only or principal home".

Examples would include a stay in prison, a period in rehabilitation or caring for a sick relative. Under these circumstances the Council may consider giving permission for a relative or friend to live in the property, to look after it and ensure the rent is paid.

Such an arrangement will be regarded as an authorised sublet of part of the property and will result in security of tenure being maintained and the property being safeguarded

It is essential that permission is first obtained from the Housing Department before the tenant moves out temporarily.

Supporting victims of unlawful subletting:

When investigating cases it may become apparent that the sub-tenant is unaware of their unauthorised status. The Council will give support and housing advice in relation to their future housing options and rights.

What is an unauthorised occupant?

The Council will consider that a person(s) is an unauthorised occupant of a Council property when it is identified that the person(s) have no legal rights to occupy the property .

This can arise through unlawful subletting, or it can arise upon the death of a tenant where there are no rights of succession for the person(s) remaining. It can also arise when the tenant moves out of their property, leaving a person(s) in occupation with no legal rights to occupy.

Unauthorised Occupancy can also arise when a mutual exchange takes place without the consent of the landlord, or where it can be identified that money has passed between the exchanging tenants. This is not permitted.

Examples of unauthorised occupancy can be summarised as:

• Unlawful subletting
• Unlawful or unauthorised assignment or exchange
• An assignment or exchange which was authorised but where a payment (a premium) was made
• Unauthorised occupation following the death of the original tenant (person not qualified to succeed)
• Further successions not permitted because a previous succession has taken place.
• Fraudulently obtaining a social housing tenancy, including misrepresentation of identity and/or misrepresentation of circumstances

Supporting unauthorised occupants:

When investigating cases it may become apparent that the unauthorised occupant is unaware that they do not have any legal rights to occupy the property.

They will need to be given support and housing advice in relation to future housing options and rights.

In accordance with the legislation contained in the 1985 Housing Act, the Housing Department will deal with cases sensitively, where there has been the death of a tenant and when no further rights of succession apply.

In summary:

The Council actively monitors correct occupation of it's housing stock. It will investigate identified cases, and take action to recover any property not occupied correctly by the tenant(s).

As a tenant, if you have any questions regarding changes to your tenancy, or there have been changes in your household, please contact your Housing Officer for advice.

If you are considering carrying out a mutual exchange you must first obtain permission. Please contact your Housing Officer for advice.

Should you have any concerns regarding a property not being occupied correctly, please contact the Housing Department in confidence so that the case may be investigated.

• Unlawful Subletting Reporting Form (word)
• Lodger Notification Form (word)