Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
The changes can be found in The Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment No. 2) Regulations 2016. The Schedule to those Regulations contains the content of the prescribed form of the new Section 8 Notice Seeking Possession.
- This new NSP must be used for all NSPs served on or after 1 December 2016 and replaces all previous prescribed forms.
- You need to change the form on your systems for all types of possession claims including rent possession claims regardless of whether Ground 7B is being relied upon. Expect to be challenged on the validity of NSPs in court by duty solicitors etc. otherwise.
The change to the form is to include reference to the new mandatory Ground 7B introduced by s41 of the Immigration Act 2016, also taking effect from 1 December 2016.
- Ground 7B applies where the Secretary of State has given a notice to the landlord which identifies that a tenant (or one of two joint tenants) is disqualified as a result of their immigration status from occupying the home under the tenancy.
- A tenant is disqualified if they are not a “relevant national” (which means either a British citizen or a national of an EEA state other than the UK or a national of Switzerland) and do not have a right to rent. A tenant does not have a right to rent if:
- They require leave to enter or remain in the UK but do not have it.
- Their leave to enter or remain is subject to a condition preventing them from occupying the property.
- Ground 7B is a mandatory ground and therefore no reasonableness requirement applies. However a defence could of course be raised on the grounds of proportionality as with all mandatory grounds.
- There is no power to the court to dispense with service of an NSP on Ground 7B.
- If only one joint tenant lacks the necessary immigration status, the court is given power to transfer the tenancy to the other joint tenant’s sole name. This is found in the new s 10A of the Housing Act 1988. It makes clear the transfer does not operate as a new tenancy but effectively as an assignment and if a fixed term tenancy it still ends at the end of the original fixed term.
The Regulations referred to above take you to a pdf form. A word version is however available to our clients on request from Ingrid.email@example.com as is a copy of the full text of Ground 7B.
For secure tenants there are no changes to the grounds or the secure NSP form. Similar changes are however introduced into the Rent Act 1977.
For more information
For queries, please contact Alex Loxton.
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