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Proceedings for under-occupation

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Posted by Mary Rouse on 07 March 2013

Mary Rouse - Property Litigation Lawyer
Mary Rouse Partner

With the current demand for social housing so high and the Universal Credit around the corner, registered providers are increasingly looking to maximise the use of their existing housing stock. This may mean reviewing the classification and occupation of properties and even taking action to recover properties that are under occupied.

If you do not currently have a policy on under occupation it would be good practice to draw up a simple policy so tenants are treated equitably when reviewing under-occupation. This may include:

  • setting out clearly what constitutes under-occupation;
  • offers of alternative accommodation (for example, offering two alternative properties and further action only taken if both are rejected);
  • determining what circumstances may qualify a tenant for exclusion, for example, an elderly tenant who has lived in the same property for 30 years may be considered for exclusion.

If you have followed your policy or procedure and tenants refuse to ‘downsize’, one option you may consider is taking possession proceedings.

Basis for possession

Ground 9 (suitable alternative accommodation is available) is commonly used as a ground for possession where tenants are under-occupying. If you have no suitable properties to enable you to offer a management move (or a mutual exchange) to a smaller property, properties outside the social housing sector may be identified as suitable alternative accommodation. There is no requirement for you, as claimant in any possession proceedings, to provide the suitable alternative accommodation, only for you to satisfy the court that it is available.

When drafting particulars for a possession claim brought under Ground 9, it is useful to set out any allocation and housing policy (i.e. how you ‘fit’ a family to the number of rooms available and also provide an indication of the number of families on a waiting list for a property of that size). The court has to decide whether it is reasonable to make a Possession Order and, therefore, you need to show the court you have good reason for wanting someone to move to a smaller property.

Proceedings where there is under-occupation after a succession

Again, Ground 9 can be used where there is a statutory or contractual succession which results in under-occupation. Ground 7 is the mandatory ground that can be used to recover possession where a tenancy has devolved under a will or intestacy but there is no right to succeed. If it looks like the property is going to be under occupied following such a succession then you have one year following the death/notification of the death of the tenant to issue proceedings (ie the claim form must be issued within 12 months of the death of a tenant). 

About the author

Mary Rouse


Mary is an experienced property litigation lawyer.

Mary Rouse

Mary is an experienced property litigation lawyer.

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