Commentary on Sections Schedule 8 – Housing and tenancies
600.Schedule 8 amends a range of enactments relating to housing and tenancies, in order to ensure equality of treatment between spouses and civil partners. In addition, where these enactments refer to two persons living together as husband and wife, they are amended to refer also to two persons living together as civil partners. This is done to preserve the effect of the decision in Ghaidan v Mendoza 2004 UKHL 30 that such references to persons living together as husband and wife should be interpreted, consistently with the Human Rights Act 1998, as including same-sex couples who live together. Schedule 8 extends only to England and Wales.
601.Paragraph 1 extends section 149(6) of the Law of Property Act 1925 so as to apply to civil partnership as it does to marriage. It provides that where a lease, underlease or contract to enter into a lease is expressed to be determinable on the formation of a civil partnership, the arrangement will take effect as a lease for a term of 90 years determinable after the formation of the civil partnership by notice in writing.
602.Paragraph 2 amends paragraph 1(e) of Schedule 3 to the Landlord and Tenant Act 1954. The 1954 Act provides security of tenure for residential tenants on the termination of long tenancies at low rents. Landlords can only seek possession on specified grounds, i.e. those specified in Schedule 3. One of the grounds is that the premises are required by the landlord as a residence for him or for specified members of his family, including his or her spouse’s father or mother. This ground is amended so that the father or mother of the landlord’s civil partner is included.
603.Paragraphs 3 to 7 amend the Leasehold Reform Act 1967. This Act enables tenants of houses held on long leases at low rents to acquire the freehold or an extended lease.
604.Paragraph 3 amends section 1(1ZC), which excludes tenancies under Part 2 of the Landlord and Tenant Act 1954 (business tenancies) from the definition of long lease, unless one of the specified exceptions applies. One of the specified exceptions is that the tenancy is a tenancy taking effect under section 149(6) of the Law of Property Act 1925 (leases terminable after a death or marriage). Paragraph 3 amends the parenthetical words to include a reference to formation of a civil partnership.
605.Paragraph 4 amends section 1B, which provides that tenancies terminable by notice after death or marriage carry the right to enfranchisement only, not the right to an extension of the lease. Section 1B is amended to refer also to tenancies terminable by notice after the formation of a civil partnership.
606.Paragraph 5 amends section 3, which governs the meaning of “long tenancy” for Part 1 of the Act. The term includes leases terminable after a death or marriage, and this is amended to add a lease terminable after the formation of a civil partnership, consequential upon the change made by paragraph 1 to section 149(6) of the Law of Property Act 1925. A tenancy terminable by notice after a death or marriage is not to be treated as a long tenancy in certain circumstances - a change is made to refer also to tenancies terminable by notice after the formation of a civil partnership.
607.Paragraph 6 amends section 7). Section 7 governs the rights of a family succeeding to a tenancy on the death of the tenant. Subsection (7) defines the members of a family who are entitled to succeed to a tenancy. Subsection (8) permits a surviving spouse, in certain circumstances, to appropriate a tenancy in satisfaction of his or her interest in their deceased spouse’s estate. Both subsections include several references to “wife or husband”. The amendment substitutes “spouse or civil partner”.
608.Paragraph 7 amends section 18(3). Section 18 empowers the landlord to apply for a declaratory order that he may resume possession of the property on the ground that it is required by him for occupation as his residence, or as a residence for an adult member of his family. The definition of member of the family in subsection (3) includes numerous references to “wife or husband”. The amendment substitutes “spouse or civil partner”.
609.Paragraph 8 amends the Caravan Sites Act 1968. Section 3 of the 1968 Act concerns the protection of persons occupying caravans under residential contracts against eviction or harassment. Section 3 is amended so that surviving civil partners are entitled to the same protection as widows and widowers.
610.Paragraphs 9 and 10 amend sections 3 and 4 of the Rent (Agriculture) Act 1976 to give surviving civil partners of a tenant of a protected or statutory tenancy of agricultural land the same rights as a surviving spouse. The amendment to section 4(5A) provides that, for the purposes of section 4(3) of the 1976 Act, a person who was living with the original occupier as if they were civil partners shall be treated as the civil partner of the occupier.
611.Paragraph 11 amends the right of the Secretary of State in England and the National Assembly for Wales to obtain information about certain tenancies of agricultural land so that the right applies in relation to a civil partner of a person who has been employed in agriculture as it applies in relation to a spouse of such a person.
612.Paragraph 12 amends one of the grounds for possession applicable to protected occupancies or statutory tenancies of agricultural land. Landlords can only seek possession on specified grounds, i.e. those specified in Schedule 4 of the 1976 Act. One of the grounds is that the premises are required by the landlord as a residence for him or for specified members of his family, including his or her spouse’s father, mother or grandparents. This ground is amended so that the father, mother and grandparents of the landlord’s civil partner are included.
613.Paragraphs 13 and 14 amend the Rent Act 1977. Paragraph 13 gives surviving civil partners the same right to succeed to a statutory tenancy as surviving spouses. For these purposes, cohabitants who were living together as if they were civil partners are treated in the same way as civil partners. Paragraph 14 amends the grounds for possession applicable to Rent Act tenancies to equalise the position of spouses and civil partners.
614.Paragraph 15 amends the Protection from Eviction Act 1977. This amendment extends the protection from eviction from agricultural land afforded to a spouse to a surviving civil partner of an agricultural worker. The provisions apply where an agricultural worker occupied premises under the terms of his employment but his tenancy or licence was not a statutory tenancy under the Rent (Agriculture) Act 1976.
615.Paragraph 16 amends section 54 of the Housing Act 1980. Section 54 provides that a protected shorthold tenancy may not be assigned except under the terms of a court order in matrimonial or family proceedings. This amendment adds orders in connection with civil partnership proceedings to the list of relevant proceedings.
616.Paragraph 17 makes consequential amendments to the Housing Act 1980 to reflect the amendments made to the Rent (Agriculture) Act 1976.
617.Paragraphs 18 to 35 amend the Housing Act 1985 (“the 1985 Act”).
618.Paragraph 18 amends the definition of an “exempted disposal” of land in section 39. Where a local authority has voluntarily disposed of land under section 32 of the 1985 Act in certain areas, including National Parks, the conveyance, assignment or grant may include limitations on any subsequent disposal other than an exempted disposal. Section 39 defines an exempted disposal as including a disposal to a qualifying person. Paragraph 18 adds civil partners and former civil partners to the list of qualifying persons.
619.Paragraph 19 provides further that disposals made under a property adjustment order or orders for the sale of property in connection with civil partnership proceedings will count as exempt disposals.
620.Paragraphs 20 to 22 amend sections 87 to 89 of the 1985 Act, which concern succession to a secure tenancy. A person is only qualified to succeed to a secure tenancy if he meets the requirements of section 87 and the tenant did not himself succeed to the tenancy. The amendment to section 87 ensures that a civil partner has the same rights to succeed to a secure tenancy as a spouse. The amendment to section 88 adds court orders for the assignment of a tenancy in connection with civil partnership to the list of assignments which do not count as a succession. Section 89 sets out the procedure to follow if there is more than one person qualified to succeed to a periodic secure tenancy. The amendment to subsection (2)(a) means that civil partners, like spouses, will be given preference over other classes of qualifying successors. Subsection (3)(a) states that if there is no person qualifying to succeed to the tenancy then that tenancy ceases to be a secure tenancy unless a disposal is made in accordance with certain court orders. The amendment to subsection 3(a) adds property adjustment orders made in connection with civil partnership proceedings.
621.Paragraph 23 amends section 90(3), which concerns devolution of a fixed term secure tenancy on the death of the tenant. Such a tenancy ceases to be a secure tenancy unless it passes to a person qualified to succeed or an assignment is made in pursuance of certain court orders. This paragraph adds disposals made under a property adjustment order in connection with civil partnership proceedings to that list of court orders.
622.Paragraph 24 amends section 91 which prevents the assignment of a secure tenancy unless the assignment falls within one of the exceptions listed in subsection (3). These include an exception for any assignment made in pursuance of a court order in matrimonial or family proceedings. This amendment adds to the list of exceptions, any assignment made under a property adjustment order in connection with civil partnership proceedings.
623.Paragraph 25 amends section 99B of the 1985 Act. Section 99A confers power on the Secretary of State to make regulations requiring tenants to be paid compensation for improvements when a secure tenancy comes to an end. This applies only if certain conditions are met. Section 99B sets out the people who qualify for compensation. The amendment adds to the list of qualifying persons any person to whom the tenancy was assigned by the improving tenant in pursuance of a property adjustment order under this Act.
624.Paragraph 26 amends section 101(3)(c) of the 1985 Act. Section 101 states that the rent on a property should not be increased on account of the improvements the tenant has made under section 99. This includes raising the rent of any qualifying successor. This amendment ensures that people who have been assigned the tenancy, in pursuance of a property adjustment order in connection with civil partnership proceedings, are qualifying successors.
625.Paragraph 27 amends the definitions of “member of a person’s family” in Parts 3 and 4 of the 1985 Act to include references to civil partner or civil partnership alongside references to spouse or to marriage. The amendment also extends the definition to couples who are living together as if they were civil partners as well as people who are living together as husband and wife.
626.Paragraph 28 amends the definition in section 123 of family members with whom the right to buy under Part 5 of the Housing Act 1985 may be exercised, to include civil partners. The right to buy is a statutory scheme enabling secure tenants to buy the homes that they live in, at a discount, from their landlord.
627.Paragraph 29 amends section 130 of the 1985 Act. Section 130 allows deductions to be made from the discount applicable to a right to buy purchase where one of the purchasers or their spouse (or deceased spouse) has previously purchased a property and received a discount under the right to buy. The amendment adds a reference to any previous discount received by a civil partner or deceased civil partner.
628.Paragraph 30 amends section 160 of the 1985 Act. Section 160 exempts certain disposals from the repayment provisions in relation to the discount obtained when the right to buy was exercised. The amendment adds a disposal in pursuance of a property adjustment order or an order for sale of property in connection with civil partnership proceedings.
629.Paragraph 31 amends section 171B of the Housing Act 1985 which defines qualifying tenants and properties for the purposes of the preserved right to buy. The preserved right to buy gives certain tenants who were secure tenants at the point when their property was transferred to a private sector landlord or their successors a continuing right to buy their property at a discount. The amendment ensures that a person who obtains a secure tenancy from a qualifying tenant as a result of a property adjustment order in civil partnership proceedings will count as a qualifying successor.
630.Paragraph 32 amends section 554(2A) of the Housing Act 1985. Section 554(2A) requires a registered social landlord other than a co-operative to grant or arrange for the grant of a secure tenancy to certain occupiers of dwellings it has acquired. The amendment allows a civil partner of a former owner-occupier, who was previously a secure tenant, to obtain a tenancy on the same terms as a spouse.
631.Paragraph 33 amends the domestic violence ground for possession of a secure tenancy to include domestic violence by or against a civil partner. It also provides that the ground for possession applies where two people have been living together as if they were civil partners of each other.
632.Paragraph 34 amends paragraphs 2, 5 and 5A of Schedule 4 to the Housing Act 1985 so that time spent by a civil partner as a public sector tenant or occupying forces accommodation will be counted towards the qualifying period for the right to buy and discount entitlement. It also ensures that civil partners are included as qualifying persons for the preserved right to buy.
633.Paragraph 35 amends schedule 6A to the Housing Act 1985 to equalise the treatment of spouses and civil partners in respect of the terms of a purchase made under the right to acquire a property on rent to mortgage terms in section 150 of the Housing Act 1985. The “rents to mortgage” scheme introduced by the Housing Act 1985 allows a tenant to buy his property by turning his existing rent payments into mortgage repayments supporting a capital sum borrowed and paid over to the landlord. The outstanding amount is secured by a charge on the property in favour of the landlord.
634.Paragraphs 36 to 39 amend the Agricultural Holdings Act 1986 (“the 1986 Act”).
635.Paragraph 36 extends the definition of "close relative" in sections 35(2) and 49(3) of the 1986 Act to civil partners for the purposes of statutory succession to an agricultural tenancy. The amendment also extends the definitions of “close relative” to include any person who, in the case of any civil partnership to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that civil partnership.
636.Paragraphs 37 and 38 relate to the criteria for satisfying the livelihood test for succession to an agricultural tenancy, which requires that for 5 out of the 7 years prior to the date of the death or retirement of the previous tenant, a potential successor has derived their livelihood from agricultural work on the holding. They insert new sections 36(4A) and 50(3A) and provide that in the case of a civil partner, the reference to agricultural work shall be read as a reference to agricultural work carried out by either the civil partner or the deceased/retiring tenant, or the civil partner and the deceased/retiring tenant.
637.Paragraph 39 amends Schedule 6 to the 1986 Act in relation to the “occupancy condition” for succession to an agricultural tenancy i.e. that a potential successor is not already the occupier of a commercial unit of agricultural land.
638.Paragraph 39(2) amends paragraph 1(2) of Schedule 6 to the 1986 Act so that, for the purposes of the occupancy condition, a body corporate will be treated as having been controlled by a close relative of the deceased, where it has been controlled by the deceased or his civil partner or by the deceased and his civil partner together. .
639.Paragraph 39(3) inserts a new sub-paragraph into paragraph 1 of schedule 6 to the 1986 Act. The new sub-paragraph provides that any reference in schedule 6 to the civil partner of a close relative of the deceased does not apply in relation to any time when the relative’s civil partnership is subject to a dissolution order, nullity order or presumption of death order (that is a conditional order), or a separation order.
640.Paragraph 39(4) amends paragraph 6(2) of Schedule 6 to the 1986 Act in respect of situations where occupation is to be disregarded for the purposes of the occupancy condition. The amendment extends the situation in which the disregard does not apply to the case of a tenancy or licence granted to a close relative of the deceased by the civil partner as well as by his spouse.
641.Paragraph 39(5) amends paragraph 9(1)(a) of Schedule 6 to the 1986 Act for the purposes of the occupancy condition and joint occupation and provides that occupation by the civil partner of the close relative of the deceased shall be treated as occupation by the relative.
642.Paragraph 39(6) amends paragraph 9(2) of Schedule 6 to the 1986 Act so that where, by virtue of paragraph 9(1) of Schedule 6, joint occupation of land by the civil partner of a relative, amounts to occupation by the civil partner, the provisions as to joint occupation in paragraphs 7(2) and (3) will apply to the relative of the civil partner as if he were the holder of the interest.
643.Paragraph 39(7) amends paragraph 10(3) of Schedule 6 to the 1986 Act so that, the definition of a “connected person” in relation to a close relative of the deceased includes a close relative’s civil partner, as well as a close relative’s spouse.
644.Paragraph 40 amends section 4 of the Landlord and Tenant Act 1987. Part 1 of the 1987 Act gives qualifying tenants a right of first refusal in some circumstances if their landlord chooses to dispose of his interest in their property. Section 4 protects landlords, by allowing them to make some disposals without triggering the right of a tenant to first refusal. Paragraph 40 ensures that a disposal to a civil partner or a member of their family will be dealt with in the same way as a disposal to a spouse or a member of their family and that a disposal following a property adjustment order or order for sale in connection with civil partnership proceedings will be treated in the same way as a disposal following matrimonial or family proceedings.
645.Paragraphs 41 to 45 amend the Housing Act 1988.
646.Paragraph 41 amends section 17 to give civil partners the same rights to succeed to an assured tenancy as spouses. The amendment also states that people who are living together as civil partners have the same rights to succeed to an assured tenancy as people who are living together as husband and wife.
647.Paragraph 42 amends section 82(1)(b) to allow the Housing Corporation or the National Assembly for Wales the power to provide legal assistance to a surviving civil partner of a former secure or introductory tenant of a housing action trust (HAT) on the same basis as they may assist a surviving spouse. This power only arises in connection with a dispute between the tenant or surviving spouse or civil partner and a new landlord who has acquired the property following a disposal by the HAT under section 79 of the 1988 Act.
648.Paragraph 43 amends the grounds for possession applicable to assured tenancies to ensure that spouses and civil partners are treated equally and to provide that couples who are living together as if they were civil partners and people that are living together as husband and wife should be treated equally.
649.Paragraph 44 ensures that civil partners or surviving civil partners have the same rights in relation to an agricultural occupancy as spouses and surviving spouses. It also states that people who are living together as if they were civil partners and people that are living together as husband and wife should be treated equally.
650.Paragraph 45 amends Schedule 11 to the 1988 Act to ensure that disposals by a housing action trust to a civil partner or former civil partner of a tenant or in pursuance of an order in connection with civil partnership proceedings are treated in the same way as a disposal to a spouse or former spouse or a disposal in connection with matrimonial or family proceedings.
651.Unless a disposal is exempted, Schedule 11 to the 1988 Act allows the housing action trust to reclaim an amount equal to the discount (reduced by one third for each complete year) given to a purchaser under section 79 if the purchaser further disposes of the property before three years has elapsed. Paragraph 45 adds civil partners and former civil partners to the list of qualifying persons for exempted disposal and adds orders in connection with civil partnership proceedings or dissolution to be eligible for exempted disposal.
652.Paragraph 46 amends the grounds for possession for long residential tenancies in the Local Government and Housing Act 1989. The amendment will equalise the position of spouses and civil partners so as to allow the court to grant a possession order where premises are required as a residence for the father or mother of a landlord’s civil partner.
653.Paragraphs 47 and 48 amend the Leasehold Reform, Housing and Urban Development Act 1993, which confers rights to collective enfranchisement on tenants of flats.
654.Paragraph 47 amends section 7 of the 1993 Act, which contains the definition of “long lease” for the purposes of the Chapter on collective enfranchisement. A consequential amendment is made to subsection (1)(b) of section 7, as it contains a reference to section 149(6) of the Law of Property Act 1925 (leases terminable after a death or marriage), to reflect the changes made to that provision (see the notes to paragraph 1 above). The definition of long lease will now also include leases terminable after the formation of a civil partnership.
655.Section 7(2) provides that a lease terminable by notice after a death or marriage is not a long lease if certain criteria apply, including that the notice is capable of being given at any time after the death or marriage. Section 7(2) is amended to ensure that leases terminable by notice after the formation of a civil partnership are treated in the same way.
656.Paragraph 48 amends section 10(5), which contains the definition for an adult member of another’s family, for the purposes of the resident landlord exception. Certain premises are exempt from enfranchisement if the landlord, or an adult member of his family, is resident there. The amendment ensures that civil partners and their close relations are treated in the same way as spouses and their close relations.
657.Paragraph 49 amends section 7(3) of the Agricultural Tenancies Act 1995 and provides that in the case of a notice to quit, the exemption for tenancies subject to section 149 of the Law of Property Act 1925 (lease for life or lives or for a term determinable with life or lives or on the marriage of the lessee) is extended to the formation of a civil partnership by the lessee.
658.Paragraphs 50 to 61 amend the Housing Act 1996.
659.Paragraph 50 amends section 15, which defines exempted and relevant disposals for the purposes of sections 11 to 14 of the 1996 Act. Where a tenant has purchased his home from a registered social landlord at a discount, paragraph 50 ensures that a disposal to a civil partner or former civil partner or in connection with civil partnership proceedings will not trigger repayment of the discount.
660.Paragraph 51 amends the definition of “member of a person’s family” in Part 1 and Chapter 1 of Part 5 to include civil partners, people living together as if they were civil partners and relationships by civil partnership.
661.Paragraphs 52 to 54 amend the rules relating to succession and to the assignment of introductory tenancies to ensure that civil partners have the same rights as spouses. They also ensure that a property adjustment order in connection with civil partnership proceedings will have the same effect in respect of an introductory tenancy as an order in matrimonial or family proceedings.
662.Paragraphs 55 to 59 amend the rules relating to succession and to the assignment of demoted tenancies to ensure that civil partners have the same rights as spouses. They also ensure that a property adjustment order in connection with civil partnership proceedings will have the same effect in respect of a demoted tenancy as an order in matrimonial or family proceedings.
663.Paragraph 59 amends the definition of “member of another’s family” to include civil partners and relationships by civil partnership. The definition applies to demoted tenancies under Chapter 1A of the 1996 Act.
664.Paragraph 60 amends section 160 of the 1996 Act, which provides that the rules regarding local authority housing allocations shall not apply in certain circumstances. Paragraph 60 ensures that the rules do not apply to assignments or disposals of property as a result of property adjustment orders in connection with civil partnership proceedings.
665.Paragraph 61 amends the definition of “associated persons” in section 178 to include civil partners, former civil partners and relationships resulting from a civil partnership. The definition applies for the purposes of the homelessness provisions in Part 7 of the 1996 Act. Paragraph 61 also ensures that the definition of “associated persons” extends to two people of the same-sex who, although not civil partners of each other, are living together as if they were civil partners.
666.Paragraphs 62 and 63 amend the Housing Grants, Construction and Regeneration Act 1996.
667.Paragraph 62 confers power to provide for the financial resources of a civil partner to be taken into account when an application is made for a disabled facilities grant. This mirrors the existing situation in relation to the financial resources of a spouse.
668.Paragraph 63 amends the repealed section 54 to ensure that a property adjustment order or an order for sale of a property in connection with civil partnership proceedings does not trigger the repayment of a renovation, common parts or Houses in Multiple Occupation grant which was approved before section 54 was repealed.
669.Paragraphs 64 to 66 amend the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”) which established a new right to enable leaseholders of flats to take over the management of their building without the need to prove shortcomings on the part of the landlord.
670.Paragraph 64 amends section 76(2)(c) of the 2002 Act. Section 76(2)(c) refers to a tenancy which takes effect under section 149(6) of the Law of Property Act 1925. These tenancies are those that flow from leases, which are terminable after a death or a marriage. Paragraph 64 amends that section so that it refers to leases terminable after a death, marriage or a civil partnership
671.Paragraph 65 amends section 77(1) of the 2002 Act. Section 77(1) provides that a lease terminable by notice after death or marriage is not a long lease in certain circumstances. Paragraph 65 amends section 77(1) to include leases terminable by notice after the formation of a civil partnership.
672.Paragraph 66 amends paragraph 3(8) of Schedule 6 to the 2002 Act which excludes certain premises which are occupied by a resident landlord or an adult member of his family from the right to manage introduced by Chapter 1 of Part 2 of the 2002 Act. Paragraph 66 ensures that a civil partner will count as a member of a freeholder’s family for these purposes.