Housing and Regeneration Bill

My Lords, I am happy to bear the pressure, because we are seeking to do the same thing. The noble Baroness and I both recognise that the existence of tolerated trespassers causes serious problems to tenants and landlords. We want to resolve that to ensure that no tolerated trespassers are created in future. My amendments would amend Part 2 of Schedule 11 to deal with the situation in respect of tolerated trespassers whose landlord changes. The most usual situation where that happens, as the noble Baroness implied, is transfer from a local authority to a registered social landlord following a large-scale voluntary transfer. Less usual examples are where one RSL takes over the stock of another, or where one local authority is substituted for another as a result of boundary changes. It is certainly true that, while Part 2 of Schedule 11 provides for all other existing tolerated trespassers to receive new tenancies, it does not at present cover the situation of those who have transferred to a new landlord. That is why we are introducing an amendment today which will put that right. My problem with the noble Baroness's amendment is not that it is extra speedy, it is just that it is not quite as simple as she suggests. Our aim is to provide certainty as well as appropriate speed. As far as possible, the aim is to provide that both landlord and tenant are in the same position as they would have been had the tenant not become a tolerated trespasser and that neither is disadvantaged by the changes. Paragraph 17 of Part 2 of Schedule 11 provides, with one exception, that the new tenancy will be the same as the original tenancy. That means that a tolerated trespasser of an RSL who had previously held a demoted tenancy will be granted a demoted tenancy on commencement. However, the noble Baroness's amendments would provide all transferring tolerated trespassers with a full assured tenancy. We are aware that at the moment different stock transfer RSLs take different approaches to how they deal with occupants who transfer to them as tolerated trespassers. That is part of the problem. Some grant full assured tenancies; others grant only assured shorthold tenancies—usually with a promise of a full assured tenancy after a certain time if the tenant behaves well. There are also some transferee landlords who fail to provide a new tenancy, or to do anything else to regularise the position for transferring tolerated trespassers. That could happen for different reasons, including an intention by the landlord to request the court to proceed with an eviction. However, as with other existing tolerated trespassers, the court may not grant that request, with the result that the occupant would be left in their current anomalous position. We do not have information on how many tolerated trespassers are in this position. Specifying in the legislation that all transferring tolerated trespassers should receive a full assured tenancy would not only be out of line with the general thrust of Part 2 of Schedule 11; it would also remove the choices that transferee landlords currently have. This is not possible or right to do without first consulting landlords. We consulted generally on the provisions in Schedule 11 in August 2007, and the landlords and other housing professionals who responded to that consultation strongly supported remedying the situation for future and existing tolerated trespassers. However, we did not consult specifically on the issue of transferring tolerated trespassers. It would be wrong to make those changes without first seeking the views of RSLs and local authority landlords, because they will be affected by those changes. We would then extend the consultation more widely to include private landlord representative organisations, as well as tenant and advisory organisations. However, it is true that any resulting addition to the provisions is unlikely to affect private landlords to any great extent. Although I have to say that there are certain shortcomings with the amendments tabled by the noble Baroness—not with mine—we accept that it is unfair for a change of landlord outside a tolerated trespasser’s control to determine whether they have their tenancy status restored or not. We also recognise that if we do not remedy this situation, it could lead to subsequent litigation. Amendment No. 177, which I am introducing today, gives the appropriate national authority—the Secretary of State in England and Welsh Ministers in Wales—the power to provide by order that a new tenancy will arise wherever there has been a change of landlord since the former tenant became a tolerated trespasser. It also provides for the order to set out the detail of how that would work. We intend that that should be kept as close as possible to the existing provisions for new tenancies in Schedule 11. Amendment No. 177 will meet the concerns raised with the department by a number of stakeholders, including Shelter. I am very pleased that it will. The provisions will relate only to those tolerated trespassers who have not signed a new tenancy agreement with their new landlord. As I said, however, as this is an issue which we did not include in our earlier consultation, and as we recognise that RSLs in particular may have strong views about the form of tenancy which should be granted in this situation, we have provided a delegated power so that provision can be made by secondary legislation, rather than by inclusion in the Bill. As I said, that will allow for a full consultation process to be undertaken before final decisions are made on the detail. We intend that if, following consultation, the power is exercised, the secondary legislation will come into force at the same time as commencement of the main provisions on tolerated trespassers in the Bill. In that way, we will ensure that transferring tolerated trespassers are not disadvantaged by the timing of these changes. I hope that the noble Baroness will appreciate that. Given that that will end the current situation in which RSLs have discretion as to what sort of tenancy to offer transferring tolerated trespassers, we think it right that the regulation-making powers should be subject to the affirmative resolution procedure. Amendments Nos. 195 and 198 therefore make the necessary consequential amendments to Clause 318, which deals with orders and regulations. Finally, Amendments Nos. 178 and 179 are minor technical amendments. They are necessary for completeness to add a missing definition of ““successor”” in paragraph 25 of Part 2 in relation to demoted tenancies, where the general assured tenancy succession rules would apply. I hope that that rather long-winded explanation satisfies the noble Baroness on her amendments. I think that we have closed the loophole effectively, which is a good thing.