DESPITE ITS MONSTROUS LENGTH THE HOUSING ACT 1996 IS IN REALITY LITTLE MORE THAN A SKELETON, BY NIC MADGE.In The Future of Law (Oxford University Press) Richard Susskind bemoans the fact that we live in 'hyperregulated times'.

He explains that 'we are all subject, in our social and working lives, to a body of legal rules and principles which is so vast, diverse and complicated that no one can understand their full applicability and impact .

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Being hyperregulated means that there is too much law for us to manage'.There is no more graphic example of hyperregulation than the new Housing Act 1996.

The Act costs £18.

It weighs 600 grammes.

Its 233 sections and 19 schedules run to 241 pages.

Maybe such size would be manageable, and understandable, if the Act were the main, stand-alone source of housing law.

But that is not the case.

We still have countless other Acts forming the basis of housing legislation, including the Rent Act 1977 (156 sections and 25 schedules), the Housing Act 1985 (625 sections and 24 schedules) and the Housing Act 1988 (141 sections and 18 schedules), not to mention a large body of case law.

To cap this, less than six months after receiving the royal assent the 1996 Act is about to be amended by The Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996, which will come into force on 20 January.The problem is compounded by the fact that despite the length of the Housing Act 1996, it is no more than a skeleton.

It will be fleshed out by a whole series of regulations, circulars and codes of guidance.Since the Act received the royal assent, the government has already published a new code of guidance on homelessness, a draft circular on introductory tenancies, a draft of the Introductory Tenants (Review) Regulations 1996, a draft of the Introductory Tenants (Right to Repair) Regulations 1996 and the Social Landlords (Permissible Additional Purposes or Objects) Order 1996.

There is much more to come.The method of implementation is as bad.

Do you know if s 152 is in force? Do you know when s 152 is to be implemented? Some sections were brought into force by the Act.

Most though will be brought in on different dates by a series of commencement orders.

So far, there have been five.

The government's aim is for the entire Act to be in force by April 1997.

That may be a pious hope but one result of this desire has been to allow ridiculously short periods for interested parties to respond to consultation documents: so far an average of three weeks.Apart from the difficulty of knowing what is in force, piecemeal implementation has resulted in other problems.

For example, s 81 provides that landlords cannot exercise a right of re-entry or forfeiture for failure to pay service charges unless the amount claimed is agreed or admitted by the tenant or has been the subject of determination by a court or arbitral tribunal.

This has to be read in conjunction with s 83, which will insert several new sections into the Landlord and Tenant Act 1985.

The purpose of this is to transfer the jurisdiction exercised by county courts to determine how reasonable service charges to rent assessment committees sitting as leasehold valuation tribunals (LVTs) would be.

S 232 brought s 81 into force on 24 September 1996.

However, the statutory instruments that will govern LVT procedure have not yet been prepared and it is envisaged that the transfer of jurisdiction will not take place until April 1997.In the meantime, if lessees do not admit the arrears, lessors have little choice but to issue two sets of county court proceedings, first an application for a declaration as to recoverability and then, after obtaining a declaration, forfeiture proceedings.

It does not appear that anyone has considered the obvious consequence that lessors and lessees will have to pay the costs of two sets of proceedings rather than one?And, if all this is not indigestible enough, the next major piece of housing legislation, the Commonhold Bill, is already on the stocks.

That Bill has already attracted criticism from lenders, leasehold support groups and opposition parties.

It was described in The Times last October as being 'a disaster, hopelessly inadequate, fundamentally flawed and very dangerous'.Is there any prospect of lawyers knowing and understanding housing law? What about the ordinary council tenants that the legislation is designed to protect, let alone vulnerable homeless people sleeping on the streets? Is it any wonder that the government is concerned about expenditure on legal aid?LANDLORDS WILL HAVE TO BE INGENIOUS TO DEFEAT LESSEES' CLAIMS FOR COLLECTIVE ENFRANCHISEMENT, SAYS MICHAEL TULLOCHJust as p ractitioners are coming to terms with the implications of the Leasehold Reform, Housing and Urban Development Act 1993, along comes yet further legislation on leasehold enfranchisement, in the Housing Act 1996, chapter III, pt III (ss 105 to 119) and sched 9.The most important provision for landlords is that all leases of houses and flats originally granted for a term of more than 35 years will now be at risk of enfranchisement, whether or not the rent payable exceeds £1000 (see s 106 and sched 9).

Landlords who have been setting ground rents at above £1000 per year since the 1993 Act in order to avoid enfranchisement will find those leases vulnerable to enfranchisement if held by individuals who satisfy the residence conditions.At present, leases granted to company lessees are not subject to the enfranchisement legislation.

Withholding consent to the assignment of a potentially enfranchisable lease from a company lessee to an individual, on the grounds that if the assignment went ahead the lease would be vulnerable to enfranchisement, has been held to be justified (see Bickel v Duke of Westminster [1977] 1 QB 517 and Norfolk Capital Group Ltd v Kitway Ltd [1977] 1 QB 507).

But it would not be surprising if a lessee were to challenge how reasonable it would be to refuse consent on this ground given the changes in the enfranchisement legislation since those decisions were made.

The 1993 Act has been amended to bring it into line with the Leasehold Reform Act 1967.

Trustees who hold a lease can rely on occupation by a beneficiary under the terms of the trust both to join in a collective enfranchisement and to acquire an extended lease (ss 111 and 112 of the Housing Act 1996, which came into force on the 1 October 1996).

Again, if landlords are approached for licence to assign a potentially vulnerable lease from a company lessee to a trust, they should consider refusing consent.

Landlords should be even more careful about including in long leases to company lessees requirements for the company to hold the lease beneficially and not on trust for anyone else.

'Long' will now mean 35 years or more.Following the 1993 Act, some landlords took steps to defeat lessees' claims for collective enfranchisement by splitting the freehold ownership of blocks of flats, or mixed residential and commercial units, into several parts.

That took the block concerned outside the definition of qualifying premises in s 3 of that Act.

Now, under an amendment under s 107(1), split ownership of the freehold (so long as one or more of the split parts does not form a 'self-contained part of a building' (s.107(2)) does not disqualify the block.

Extreme ingenuity by landlords will now be required to avoid s 107(1) while not creating two blocks which are separately enfranchisable.

Those provisions came into force on 1 October 1996.The exclusion from collective enfranchisement of premises where more than 10% of the internal floor area is used for non-residential purposes is still effective, but subject to the amendment just mentioned.The requirement under s 13(6) of the 1993 Act for lessees to obtain a valuation of the block before serving notice of their wish to acquire the freehold (which never applied to enfranchisement claims in respect of houses) has now been removed by s 108, which came into force on 1 October 1996.

Even so, it will still be important for lessees considering collective enfranchisement to obtain professional valuation advice before serving notice on the landlord.

Only in that way can they be sure, before incurring professional fees themselves, as well as liability for the landlord's costs, that they will be able to afford to acquire the freehold.For those tenants who choose to offer a nominal price in their notice of claim to collective enfranchisement, or for an extended lease, it would be wise to be cautious.

The landlord may seek to argue that the notice is invalid, on the basis that it is not given in good faith because the tenant's proposal is not genuine.

A decision on that point, in a pending lease extension case, is awaited.

The extensions of the right to enfranchise have triggered a further opportunity for landlords to consider applying for the registration of an estate management scheme.

The time limit for applications is two years from s 118 coming into force.Eligibility for registration of a scheme depends on it being in the general interest that the landlord retains powers of management, in respect of an area occupied, directly or indirectly, under leases granted by that landlord, to maintain adequate standards of appearance and amenity and to regulate redevelopment in that area.THE POSITION OF TENANTS AS REGARDS ASSURED SHORTHOLDS IS REVERSED, GIVING THEM FEWER RIGHTS, WRITES ROSALEEN KILBANEHOMELESSNESSThe duties of local authorities towards homeless people have been greatly reduced.

They no longer need to grant secure tenancies to those who qualify for assistance.

Instead, they must ensure accommodation is available for a homeless applicant for a period of two years.The local authority may continue to provide accommodation beyond the two-year period only if it is satisfied that the person still has priority need; there is no other suitable accommodation in the district and that the person still wants local authority help.

Instead of being provided with a 'once-and-for-all' secure home the homeless could be in limbo for two years at a time.Authorities may try to minimise negative effects of legislation using their allocation scheme.

Under s 167(2) of the Act they must frame this scheme to give 'reasonable preference' to certain classes of people, one of which is those in temporary or insecure housing.

Another is people who are occupying unsatisfactory housing.

While local authorities can no longer give preference to homeless people in their allocations policies, it may be possible for them to push these people up the queue for permanent secure accommodation once they have been housed temporarily.S.191(3) of the Act appears to be aimed at stopping those living with family or friends, but then asked to leave, from being eligible for housing.

Before legislation was passed some politicians and the media were agitated by the 'scam' of adult children and their dependents being asked to leave the family home so they could jump to the top of the housing queue.

They will now be treated as having become homeless intentionally.

There may be a temptation for housing officers to treat all those who had previously been staying with friends or family as coming under this section of the Act.

But the onus will be on them to prove the existence of an arrangement and, that its purpose was to secure entitlement to assistance.

This is likely to be difficult to prove.The Act introduces a statutory right for an applicant to request a review of a housing authority's decision but it must be made within 21 days of notification of the decision.The authority may agree to extend this.Review procedure is to be laid down by the secretary of state in regulations.

Although not yet published, under s 203(2) they may require 'the review decision to be made by a person of appropriate seniority not involved in the original decision' and prescribe circumstances for entitlement to a hearing and representation.

If an applicant is not satisfied with the review decision he or she can, under s 204, appeal to the county court on a point of law arising out of either that decision or the original one.An appeal to the county court judge is on a point of law only.

If the complaint is that the local authority failed to take into account relevant considerations, or the decision was Wednesbury unreasonable, it is probable that redress will continue to be sought by way of application for judicial review.What is an adviser to do if the decision is to be challenged on all three fronts? The Divisional Court may decline to deal with the question of law on the basis that the county court appeal constitutes an alternative remedy.

The safest course might be to appeal to the county court and seek leave for a judicial review.

County court judges may find themselves facing a large number of appeals in an area in which they have little or no experience and where, it is understood that training is not proposed.ASSURED SHORT-HOLD TENANCIESUnder the Housing Act 1988, all new tenancies created by non-local authority landlords were, subject to certain exceptions, assured tenancies unless they fulfilled conditions laid down in the Act rendering them assured short-holds.

Importantly, s 20 of the 1988 Act required a notice to be given to the tenant stating the tenancy was to be an assured short-hold.

In practice, assured short-hold tenancies have become the norm because they are so attractive to landlords, guaranteeing possession subject to the correct procedure being adopted.Assured tenancies only came into existence where the landlord, typically a housing association, chose not to use assured short-holds, or where a private landlord created an assured tenancy by mistake by failing to comply with the requirements of s 20 of the Act.

The new Act reverses the position so, subject to exceptions, new tenancies created by non-local authority landlords will be assured short-holds unless a decision is made to enter into an assured tenancy.

The exceptions are:-- Tenancies entered into after the Act comes into force but pursuant to a contract made before the Act took effect;-- Landlord serves notice on the tenant before the tenancy is entered into stating the assured tenancy is not an assured short-hold tenancy;-- After the start of the assured short-hold tenancy the landlord serves notice stating it is no longer to be an assured short-hold;-- The tenancy agreement contains a provision tothe effect that the tenancy is not an assured short-hold tenancy;-- The tenancy is an assured one by succession;-- The tenancy used to be a secure tenancy and became an assured tenancy, for example, upon transfer of a local authority housing stock to a housing association;-- The assured tenancy came into being upon the ending of a long residential tenancy by virtue of sched 10 to the Local Government and Housing Act 1989;-- A tenancy granted to a person who immediately before the grant of the tenancy was an assured tenant of a person who, immediately prior to the grant of new tenancy was the landlord.

This is unless the tenant serves notice on the landlord before the new tenancy is entered into, stating the tenancy is to be an assured short-hold.-- The exception most likely to be encountered is where the landlord's and tenant's identities do not change but a new agreement is entered into.

If the old tenancy was assured then so will the new one be, even if the landlord purports to grant an assured shorthold.LOCAL AUTHORITY LAWYERS ARE EFFECTIVELY HAVING TO PROVIDE THEIR OWN GUIDANCE ON THE ACT BY JOHN SWANIt is important to bear in mind that these changes are being made against the background of Lord Woolf's report.

Among the issues to be addressed in that regard are procedures to safeguard witnesses and specialised housing training for judges.

It is clear that there is great potential for the involvement of lawyers, not only in potential court proceedings but also in the various internal appeal mechanisms which the legislation and the guidance thereunder establish.

It is appreciated however that the funding of legal representation remains a stumbling block.HOUSING ALLOCATIONLocal authorities are required to have regard to guidance given by the secretary of state for the environment.

A draft code of guidance for consultation was widely anticipated.

However, the Department of the Environment (DoE) issued a single code covering both allocation policies and homelessness, to local authorities on 31 October without consultation.

The department's letter states that the code will be revised next year to take account of practitioners' experience in dealing with the legislation.

Comments in relation to this are requested by 30 June 1997.

Further guidance is to come on some topics including treatment of persons from abroad and the procedure to be followed upon a request for review of the local authority's decision.

Allocation of housing is to be only from the local authority's register of qualifying persons.

In making a selection the authority must give 'reasonable preference' to those in the categories listed.

There is considerable scope for lawyers to advise on who 'qualifying persons' are.

With certain exceptions, contained in the regulations, those subject to immigration control are not 'qualifying persons', but otherwise authorities are free to decide which classes of persons are 'qualifying'.

Although this discretion is not circumscribed in the legislation, there is a right to have a decision on exclusion or removal from the register reviewed.INTRODUCTORY TENANCIESThe new 'introductory tenancy' system is discretionary.

However, if a local authority elects to adopt it, it applies to all new tenancies.

A draft circular covering both introductory tenancies and the new grounds for possession was put out for consultation at the end of last year.

The draft circular referred to and endorsed a guidance document for local authorities which has been produced by the Local Authority Association and runs to 29 pages and three annexes.

The DoE's draft guidance ran to four pages.

One might query whether it is right that the local authorities should be in the position of having to take the lead in compiling what is in effect guidance to themselves.One radical change in connection with introductory tenancies is that the making of a court order for possession is mandatory, provided that notice of the proceedings has been given and a review carried out, if requested, by the tenant.

A particular point which those advising tenants will wish to bear in mind is that while the landlord has to inform the tenant of this right to a review, he need not be informed of his right to an oral hearing and has no such right if he does not ask for it.

The DoE's draft circular gives the landlord's obligation to highlight this right no higher priority than to suggest that landlords 'may find it convenient to inform tenants of this right when serving the notice.'One would expect t hat authorities will indeed appraise tenants of their rights in this regard.

Should this not happen the possibility of challenge for breach of natural justice would surely arise.NEW GROUNDS FOR POSSESSIONAs a further part of the drive against anti social behaviour, the current ground 2 in the Housing Act 1985 has been beefed up.

A cursory look at the changes in wording will show that there is considerable scope for contested cases.

The ground of 'conduct which is a nuisance or annoyance to neighbours' now also embraces conduct which is likely to cause nuisance or annoyance not only to neighbours but also, it seems, to anyone who is present in the locality for any reason other than to engage in unlawful activity.

Suffice it to say that 'locality' is not defined.The other change in ground 2 is the addition of a conviction for an arrestable offence committed in the dwelling or its 'locality', to the ground of conviction for using or allowing the dwelling to be used for immoral purposes.

One of the reasons for this is understood to be the control of those involved in the drug trade.

It will be interesting to see how the courts exercise discretion regarding those arrestable offences with a less obvious adverse effect on the quality of life of other residents.

As well as the changes to ground 2, there is a new ground 2A in respect of domestic violence.

Practitioners should also note that landlords now have a 'fast track' option in that the usual notice of seeking possession can be dispensed with if the court considers it 'just and equitable'.

The government circular envisages this being used in those cases involving serious anti social behaviour or violence.INJUNCTIONSThe new legislation on injunctions allows authorities to restrain anti-social behaviour with a power of arrest attached.

This trail has been initially blazed by local authorities using powers including the Local Government Act 1974.

Government guidance is promised before these provisions come into force later in the year.