New forms of tenure "unlikely to have any impact in short or medium term"

The proposed new forms of tenure contained in the government’s consultation paper on its social housing reforms are unlikely to have much impact in the short to medium term, a leading housing lawyer has warned.

The government’s reforms include allowing councils and housing associations to grant fixed term tenancies – as well as lifetime tenancies – to new tenants. These fixed-term tenancies will have a minimum time period of two years, but no maximum time period.

But Nick Billingham, head of housing management at Devonshires, said: “No secure or assured tenant is going to accept a lesser form of tenure –  and the consultation paper recognises this – so the new forms of tenure will only kick in on a limited number of relets and on new build (of which there is going to be not very much).

“In the long term it will have an impact but in the short to medium term it won't. In the long term it will also impact on mutual exchanges because a secure or assured tenant will not want to exchange their tenancy for a flexible tenancy.”

Billingham also expressed concerns about the impact of Article 8 of the European Convention on Human Rights on termination and possession at the end of the fixed term.

He said: “The timing of the Supreme Court decision in Pinnock could not be worse. However much the consultation paper insists that the tenant's right to challenge the landlord's right to possession in the county court will be limited to error of law or material error of fact, there will have to be a proportionality hearing unless the wording of the legislation expressly excludes that (in which case we will face compatibility arguments).”

The Devonshires partner warned that, in the end, “the detail is going to undermine the intention”.

The Chartered Institute of Housing said the reforms could mean significant changes for prospective social tenants and people working around social housing.

Chief executive Sarah Webb said: “We have long called for a more flexible approach to social tenancies that give people a choice according to their changing needs at different times of their lives, but we have always insisted that security and stability should be the starting point.

“If landlords choose to use fixed term tenancies, they will need to be clear what length is most suitable. Just two years may be appropriate for a small number of tenants going through a short-term transition in their lives, but how realistic is this for most people to be asked to move on from their tenancies after such a short period? We believe people should be able to stay in their own homes as circumstances change, even if the terms of their tenancy change.”

David Orr, chief executive of the National Housing Federation, urged the government to hand housing associations as much flexibility as possible so that they can make decisions locally based on the needs of their local market and the homes they manage.

He added: “In some circumstances, offering a two year fixed term tenancy might be the most suitable agreement to offer new tenants. But housing associations also want to have the option to offer longer-term fixed contracts and life term tenancies where appropriate.”

The Residential Landlords Association, which represents the private rented sector, also raised the issue of the ECHR and the impact of Pinnock.

Policy director Richard Jones, a lawyer, said: “The problem that private rented sector landlords face under human rights legislation, as with housing association landlords, is that a Court is also a ‘public authority’ under the Human Rights Act.

“Since all evictions require a court order this means that a court asked to make a possession order in favour of a private rented sector landlord may well be required to decide whether this is ‘proportionate’ in line with European human rights laws even though under the law in Great Britain the court is told that it has to make the order.”