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No legal right to occupy

This content applies to England

An explanation of a person who is considered as having no accommodation if s/he has no legal right to occupy accommodation.

Three types of legal right

A person is considered to have no accommodation if s/he has no legal right to occupy the accommodation.[1] The first step is therefore to establish whether the applicant has any legal right to occupy the property. There are three types of legal right specified in the Housing Act 1996:

  • a legal interest in the property or a court order which gives a right to occupy, for example an owner, tenant, or someone with a beneficial interest (financial stake), or someone with an order from the matrimonial/family courts granting a right to occupy (known as an occupation order)[2]
  • an express or implied licence to occupy, for example an applicant who is living with her/his family or friends and has not been asked to leave.[3] The Court of Appeal held that by making a joint homelessness application with her previously estranged husband, a wife had given him an implied licence to occupy the temporary accommodation she was provided with when fleeing domestic abuse[4]
  • a right to remain granted by statute or a rule of law.[5] A spouse or civil partner of a tenant or home owner has the right to remain in occupation of the matrimonial home, and s/he cannot be evicted or excluded from the home without a court order.[6] In a case where there was a joint tenancy, it was held that the right to occupy of the spouse/civil partner could not be terminated by the joint tenant who was not the spouse/civil partner.[7]

'Hypothetical' accommodation

An applicant is homeless where s/he might be offered accommodation that might satisfy the 'legal right to occupy' test - in other words, where the accommodation is hypothetical. This could be the case, for example, where a local connection referral has been accepted by an authority but no actual accommodation has been offered by that authority. The provision in the Housing Act that a person is homeless if s/he has no accommodation which s/he has a legal right to occupy must be implied to refer to an entitlement or licence to occupy actual accommodation in the present. If an applicant has no such accommodation at the time when the local authority makes its decision, then s/he is homeless.[8]

Protection from eviction

The Protection from Eviction Act 1977 protects most tenants and many licensees from being evicted without the landlord taking court proceedings.[9] The right to remain in occupation exists in the period between the coming into effect of a possession order and the actual eviction, since the provisions of the civil procedure rules restrict the right of the landlord to recover possession. Until the bailiffs enforce a possession order, an applicant is therefore threatened with homelessness rather than is actually homeless.[10]

Occupiers who are not covered by the Act will qualify as a homeless person as soon as their tenancy or licence has been ended. Those without protection include trespassers and most people who are staying with friends or relatives, as well as tenants or licensees who share accommodation with resident landlords.[11]

The Homelessness Code of Guidance emphasises that amongst those who should be accepted as a homeless person by local authorities are:[12]

  • those required to leave hostels or hospitals
  • former employees occupying premises as service occupiers.

Valid notice served

As above, legislation protects most tenants and many licensees from being evicted without the landlord taking court proceedings. Therefore, such an occupier retains a legal right to occupy until a possession order has been granted by the court. The Code states clearly that where a valid notice to quit or notice of proceedings for possession has been served, the local authority should consider whether it is reasonable for the applicant to continue to occupy the accommodation until such point as the court awards the landlord possession. [13]

Asked to leave by family or friends

Where an applicant has been asked to leave by family or friends, the Code of Guidance advises authorities to check that permission to occupy has actually been withdrawn, and to distinguish between those cases where there are genuine reasons why the applicant cannot remain and those where there is scope to prevent or postpone homelessness.[14] The Code acknowledges that living with family and friends can lead to friction and disputes, and that the offer of support to secure alternative housing may help to reduce tension and prevent homelessness. It also stresses that it may not be safe for some applicants to return home because of a risk of violence or abuse.[15]

Social services will be the 'lead agency' in cases involving 16- and 17-year-olds who are threatened with exclusion from the family home. They should work closely with the homelessness department to support those young people to 'remain within the family network' where it is appropriate and safe to do so.[16]

The Code states that where there is no genuine basis for homelessness and the termination of a licence to occupy is one of collusion between the family or friends and the occupier in order to gain assistance under homelessness legislation, the applicant will be intentionally homeless.[17]

Applications made before 3 April 2018

A new Code of Guidance was introduced on 3 April 2018 and the references on this page are to this Code. For applications made before this date, the recommendations of the 2006 Code of Guidance should apply.

[1] s.175(a)-(c) Housing Act 1996.

[2] s.175(1)(a) Housing Act 1996.

[3] s.175(1)(b) Housing Act 1996.

[4] Windsor and Maidenhead RBC v Hemans [2011] EWCA Civ 374.

[5] s.175(1)(c) Housing Act 1996.

[6] s.30 Family Law Act 1996.

[7] Abdullah v Westminster CC [2011] EWCA Civ 1171.

[8] Fletcher v Brent LBC [2006] EWCA Civ 960, [2007] HLR 12; Johnston v City of Westminster [2015] EWCA Civ 554.

[9] s.1 Protection from Eviction Act 1977.

[10] R v Newham LBC ex parte Sacupima (2000) 33 HLR 1, QBD; R v Newham LBC ex parte Khan and Hussain (2000) 33 HLR 269, QBD.

[11] see s.3A Protection from Eviction Act 1977 for the list of unprotected occupiers.

[12] para 6.11 Homelessness Code of Guidance, MHCLG, Feb 2018.

[13] para 16.18 Homelessness Code of Guidance, MHCLG, Feb 2018.

[14] para 6.13 Homelessness Code of Guidance, MHCLG, Feb 2018.

[15] paras 6.13 and 6.14 Homelessness Code of Guidance, MHCLG, Feb 2018.

[16] para 6.15 Homelessness Code of Guidance, MHCLG, Feb 2018.

[17] para 16.16 Homelessness Code of Guidance, MHCLG, Feb 2018.

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