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Arrangement of Clauses (Contents)
These notes refer to the Homes Bill
1. These explanatory notes relate to the Homes Bill as introduced in the House of Commons on 12th December 2000. They have been prepared by the Department of the Environment, Transport and the Regions in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND
3. The Bill proposes two separate reforms to the home buying and selling process and the homelessness and allocations legislation. Both sets of proposals have been the subject of extensive consultation. The Bill extends to England and Wales (except for the amendment of the Fair Trading Act 1973).
Home Buying and Selling
4. Part I of the Bill is part of a wider package of proposals that aim to improve the home buying and selling process by making it faster, easier and more consumer-friendly. It imposes new legal duties on people marketing residential properties in England and Wales. It requires sellers, or their agents, to have a seller's pack of standard documents and information available for prospective buyers, before putting a property on the market.
5. Details of these proposals were published for consultation in "The Key to Easier Home Buying and Selling" (December 1998) and in chapter four of the Housing Green Paper "Quality and Choice: A decent home for all" (April 2000). This policy was confirmed in chapter two of the Housing Policy Statement "The way forward for housing" (December 2000). A pilot scheme in Bristol has examined the practicality of bringing forward in a seller's pack at the start of the transaction process essential information about the legal status and condition of the property. Other research studies have considered the likely impact of seller's packs in low value, low demand areas, and on small businesses. A further research project has monitored industry initiatives aimed at improving the home buying and selling process by making more information available at the start of the process.
Homelessness and Allocation of social housing
6. Part II of the Bill requires local housing authorities to adopt a strategic approach in combating homelessness. It also strengthens the position of people who are homeless through no fault of their own. It achieves this by removing limitations on the obligations of local housing authorities to assist the homeless and by providing such authorities with additional powers to give assistance. The provisions have been framed in recognition of the need for local housing authorities to have integrated policies on homelessness and the allocation of social housing. It, therefore, also makes amendments to the provisions relating to the allocation of social housing accommodation.
7. These proposals were outlined in chapter nine of the Housing Green Paper, "Quality and Choice: A decent home for all". Public consultation on the Green Paper ran from 4 April until 31 July 2000. This policy was confirmed in chapters six and seven of the Housing Policy Statement "The way forward for housing" (December 2000).
OVERVIEW OF THE BILL
Home Buying and Selling
8. In England and Wales, an offer to buy a home and acceptance of that offer are made "subject to contract." Such an offer and its acceptance do not constitute a legally binding agreement. This is usually only achieved with an exchange of contracts. Between agreeing terms and exchanging contracts, both the buyer and seller do a number of things.
9. For the seller, this includes:
10. The buyer will carry out local land charges searches and other enquiries of the local authority and other organisations. If required, the buyer will also arrange a survey. These documents and information are important to the decisions home buyers and sellers need to take and yet, under current practices, they normally become available only after terms have been agreed "subject to contract".
11. Part I of this Bill aims to bring forward the availability of this sort of information to the very start of the process. It requires the person marketing a residential property with vacant possession to compile a seller's pack before marketing the property. The pack is expected to contain documents and information similar to those mentioned above, together with a report on the condition of the property.
12. It is not intended that the provisions of this Bill should alter the principle of "caveat emptor" ("let the buyer beware") which currently governs the sale of property in England and Wales. The duties imposed by Part I of this Bill require a person to collate certain documents and make them available at an earlier stage in the transaction than at present. They do not require any greater warranty by the seller as to the contents of those documents than is currently required by the general law.
Homelessness and Allocation of social housing
13. Part II of the Bill is set out under three main headings or categories. The first contains new provisions imposing an obligation on a local housing authority ("the authority") to produce a strategy to address the problems of homelessness. The provisions under the second and third headings are framed as amendments to, and repeals of, the current provisions on homelessness and allocation of housing accommodation in Parts VI and VII of the 1996 Act. The Bill provisions therefore need to be read together with those Parts of the 1996 Act.
14. Part VII of the 1996 Act, (Homelessness), defines when a person is homeless and imposes duties on local housing authorities in relation to those who are homeless. Anybody may apply for assistance under Part VII, but assistance is not available to certain classes of persons from abroad, who are classified as ineligible. The main duty owed by an authority under section 193 is often referred to as "the main homelessness duty". The duty is to secure, for those who are eligible, accommodation where applicants have priority need for it by reason of their circumstances (as set out in section 189) and have not become homeless as a result of their own conduct. The main homelessness duty is limited in that it continues for a period of no more than two years. After the period ends, an authority has a power, on reviewing the application, to continue to accommodate the applicant, but they are not obliged to do so and they can only do so for no more than two years at a time. The main homelessness duty can also end before the end of two years in certain circumstances. However, even where there is a duty to secure that accommodation is available for an applicant, the authority's powers to assist are limited if they can be satisfied that other suitable accommodation is available in the district. In such circumstances the duty is to provide the applicant with the necessary advice and assistance as the authority consider reasonable in order to enable the applicant to obtain suitable alternative accommodation.
15. Part VI of the 1996 Act (Allocation of Housing Accommodation), provides for the allocation of long term social housing accommodation to those who have been accepted as qualifying persons and placed on the housing register maintained by the housing authority. It is only once a person has been put on the housing register that an authority may allocate him accommodation in accordance with their allocation scheme. The scheme determines priorities and sets out the procedure to be followed in the allocation of accommodation.
16. Part II of the Bill is intended to:
17. Part II of the Bill provides for the following:
Homelessness reviews and strategies
18. The Bill includes a requirement on local housing authorities, with the assistance of other authorities and voluntary organisations, to:
Other functions relating to homelessness
19. The Bill provides for:
Allocations of social housing under Part VI of the Housing Act 1996
20. The Bill covers:
COMMENTARY ON CLAUSES
Part I - Home Buying and Selling
21. Clause 1 sets out the definitions that specify who is subject to the requirements of the Bill, when and in relation to what properties.
22. This Part of the Bill imposes requirements on those responsible for marketing residential property in England and Wales and on those acting as estate agents in England and Wales. The requirements concern the availability of a seller's pack. In the case of residential property, the requirements commence when the property's availability, or possible availability, for sale is first advertised or otherwise made known to the public or a section of the public.
23. Marketing to a 'section of the public' does not include marketing by the seller to an individual who is known to the seller, for example a family member or friend. However, clause 4 requires that before a person acting as an estate agent can contact any individual with information about the availability of the property there must be a seller's pack available.
24. Examples of what would amount to making known the availability of a property for sale include placing an advert in a newspaper or shop window, erecting a "For Sale" sign or placing details of a property on a website indicating that it is for sale.
25. The seller's pack requirements apply for residential properties for occupation as a separate dwelling (together with any land intended to be occupied and enjoyed with that dwelling) which are marketed for freehold or long leasehold sale. The requirements also apply for the marketing of an option to acquire such an interest.
26. Clause 5 limits the requirements by excluding properties which will not be available with vacant possession at the time of sale. Clause 5 also allows the Secretary of State to prescribe other circumstances in which the provisions of this Part shall not apply.
27. A seller's pack is required for a residential property which is sold "off-plan". That is to say a property which is not constructed at the date on which the marketing of that property takes place, but where the buyer purchases a fully constructed home.
28. The effect of these provisions is to exclude from the requirements of this Part of the Bill marketing of:
29. The seller's pack requirements are thereby targeted on homes being marketed for owner-occupation.
30. Clause 2 identifies who is "responsible" for carrying out the duties relating to sellers packs which are contained in clause 3. Only a person considered "responsible" has any obligations under clause 3 or could become liable to prosecution for any of the offences created by that clause.
31. There are two categories of person who can be considered responsible where a property is on the market - the seller of that property or someone acting as an estate agent for the seller. The expression "acting as an estate agent" is defined in clause 14 and means someone acting in the course of business who accepts instructions from a seller to market the property with a view to introducing the seller to a potential buyer. It is not relevant whether the person acting in this manner describes himself as an estate agent, but these notes refer to "an estate agent" for ease of reference.
32. If a seller instructs an estate agent who has a place of business in England and Wales to put his property on the market, the estate agent (and not the seller) will be considered responsible. If the estate agent is a partner in a firm, the firm itself is considered responsible rather than the individual partner.
33. A seller will be considered responsible for marketing a property if he himself takes the action which makes it known that the property is for sale. A seller will also be considered responsible if a person who is not acting in the course of business (such as a friend or relative) takes the step which puts the property on the market, if this is with the seller's consent. A seller will be considered responsible if he instructs an estate agent who does not have a place of business in England and Wales if the action which puts the property on the market is taken by that agent.
34. More than one person can be considered "responsible" for the marketing of a property. For instance, if an estate agent accepts instructions to market a property which is already on the market he becomes responsible (and must therefore comply with the seller's pack duties). Equally, if a seller undertakes marketing of a property independently, that seller will become responsible for marketing and subject to the seller's pack duties even though an estate agent has also been instructed to act. In such a case, the seller will be able to rely on the seller's pack provided by the estate agent.
35. There is no limit on the number of persons who can be "responsible" for the marketing of a property and all persons who are responsible must be able to comply with all the seller's pack duties. Once a person has become responsible for the marketing of a property that person remains responsible until they lose that status in one of the ways specified in the Bill.
36. A person acting in the course of business can cease to be responsible in three different ways:
37. A seller can also cease to be responsible in three different ways:
38. A property is sold when a legally binding contract for the sale is agreed. This is usually when contracts are exchanged.
39. The Bill does not define "taken off the market" but this is an ordinary expression which should be given its usual meaning. It will include putting up a sign which says "sold subject to contract" or simply "sold" provided marketing activity has ceased. It will also include removing an advert from a window, or taking down a "for sale" sign etc.
40. If a person is seeking to shed the status of being responsible for the marketing of a property under the third method described above, the obligation is an active one, namely to cease marketing. So if there is some marketing activity already under way (for example if a "for sale sign" has been erected or an advert placed in a window), it is necessary to take steps to discontinue that marketing activity (e.g. by taking down the "for sale sign" or removing the advert from the window).
41. There may be some circumstances where a person has put in train some marketing activity which it is not within that person's power to stop. An example of this might be the ordering of an advert in a newspaper which has already gone to print. A person is only required to take such steps as they reasonably can in order to stop marketing and they might be able to rely on the "due diligence" defence if an offence is committed.
42. It is possible that no person may be responsible for the marketing of a property which is on the market. As soon as any person takes a step which advertises to the public or a section of the public that the property is available for sale, however, that person will be considered responsible and will have an obligation to comply with the seller's pack duties.
43. Clause 3 sets out obligations to make the seller's pack available to potential buyers.
44. From the point that a property is put on the market, the person responsible must have a copy of the seller's pack. Any part of the seller's pack held in electronic form must be capable of being properly viewed and capable of being copied, using readily available equipment.
45. While a property is on the market, anyone responsible for marketing must provide to a potential buyer who requests it, a copy of the seller's pack (or any part of it) within fourteen days of receiving a request. A reasonable fee may be charged to cover copying costs. Copies can be provided in electronic form where that suits a potential buyer. A potential buyer does not include someone whom the seller reasonably believes is not genuinely interested in buying the property, or to whom the seller does not wish to sell the property.
46. Clause 4 provides that where an estate agent accepts an instruction from the seller to market the property, they must have a copy of the pack before taking any action to communicate to any possible buyer information that the property is, or may become, available.
47. A person who fails, without reasonable excuse, to comply with the duties set out in clauses 3 and 4 is liable on conviction to a fine not exceeding level 5 on the standard scale (currently £5,000). If a person is served with a fixed penalty notice, the maximum penalty in any subsequent proceedings for that offence is a fine not exceeding level 2 on the standard scale (currently £500).
48. Clause 5 sets out exceptions to the duties created by clauses 3 and 4. The effect of these exceptions is described earlier in these explanatory notes where the duties themselves are described.
49. Clause 6 sets out the four statutory defences available to a person charged with an offence:
50. Clause 7 sets out provisions relating to the contents of a seller's pack.
51. This provides the Secretary of State with the power to prescribe the documents to be included in the seller's pack and what information should be included in those documents. The power extends to prescribing the form and detail of documents in the seller's pack, how they should be provided and by whom, and allowing the contents of the pack to vary according to circumstances. An example of the use of this power could be the exclusion of a home condition report from the seller's pack where a new home was marketed for sale 'off plan' before construction had commenced or been completed. In addition, different documentation will generally be required depending on whether the interest in a property is leasehold or freehold.
52. The documents and information specified must relate to matters connected with the property, or its sale, which would be of interest to potential buyers.
53. Clause 7(5) and (6) provide an indicative list of contents of a seller's pack. The documents and information listed are currently obtained by or on behalf of the seller or buyer during the process of normal home sale.
54. Clause 8 contains provisions relating to home condition reports. A home condition report is a report on the physical condition of a property which involves a similar level of inspection to that for the existing Home Buyers' Survey and Valuation. These provisions are intended to afford protection to home buyers, sellers and others who need to rely on the contents of the report. They cover arrangements to ensure that only inspectors who are members of a certification scheme approved by the Secretary of State will be able to carry out inspections and provide home condition reports for inclusion in the seller's pack. Clause 8(5) lists a number of points on which the Secretary of State will need to be satisfied before approving any certification scheme, including that inspectors are appropriately qualified, with adequate insurance and complaints resolution procedures.
55. Clause 9 and Schedule 1 provide for enforcement of the seller's pack duties by local weights and measures authorities (who act by Trading Standards Officers employed by local authorities). Schedule 1 gives Trading Standards Officers power to serve a fixed penalty notice, offering an offender the opportunity to pay a penalty as an alternative to court proceedings. The Secretary of State has power to prescribe the form of fixed penalty notice, the level of penalty and methods of payment and also circumstances in which fixed penalty notices may not be given. Where, following service of a fixed penalty notice, the case is heard by the courts, the maximum fine on conviction is level 2 on the Standard Scale (currently £500).
56. Service of a fixed penalty notice has the effect of suspending any enforcement action against an offender for at least 28 days. If the person on whom a notice is served pays the fixed penalty within that period, no court proceedings can be brought. A person paying a fixed penalty in these circumstances will not have a criminal conviction.
57. The Trading Standards Officer will decide what action to take over a suspected offence under this Bill. The officer will have the discretion to:
58. Schedule 1 also sets out the powers of officers of the enforcement authority, provides that it is an offence to obstruct or impersonate those officers and an offence for an officer of the enforcement authority to disclose information to another person except in performance of the enforcement function. It also provides privilege against self-incrimination. These powers, functions, offences and privileges are modelled on those which currently apply over the enforcement of the Property Misdescriptions Act 1991.
59. Clause 10 provides that any enforcement proceedings must be taken by, or with the consent of, the Director of Public Prosecutions or a local weights and measures authority. Proceedings must be commenced within three years of the offence or one year of its discovery by the prosecutor, whichever is earlier. Where the offence is by a person not acting in the course of business (for example by a home owner marketing his own home), proceedings must commence within six months of the offence.
60. Clause 11 deals with offences committed by companies and partnerships and provides that an officer of a company, or a partner in a firm, may be prosecuted for an offence committed by the company or partnership if responsible for the commission of an offence by that company or partnership.
61. Clause 12 provides power for the Secretary of State to give grant assistance towards the cost of developing a certification scheme for home condition reports (and for other aspects of the seller's pack).
62. Clause 13 provides that regulations are to be made by negative resolution statutory instrument and that the Secretary of State should consult the National Assembly for Wales in respect of any regulations which are to have application in Wales.
63. Clause 14 defines the expression "acting as an estate agent". The effect of the definition is explained in these Explanatory Notes where the concept of "responsibility" under clause 2 is explained above.
64. Clause 15 gives definitions for expressions used in Part I of the Bill. The effect of these definitions has been explained in these Explanatory Notes where those expressions have been used.
Part II - Homelessness and Allocation of social housing
65. With the exception of clauses 16 to 19, which are new provisions, all clauses in Part II of the Bill and Schedules 2 and 3 amend or repeal existing provisions on homelessness and the allocation of housing accommodation contained in Parts VI and VII of the Housing Act 1996 (and in one case, section 106 of the Housing Act 1985).
66. Clause 16 imposes a duty on local housing authorities ("authorities") to carry out a homelessness review and formulate and publish a homelessness strategy based on the result of the review.
67. A homelessness strategy based on the results of a homelessness reviews must be published at least every five years. The first strategy must be published within one year of commencement. Before publication, the authority must consult the social services authority and other appropriate organisations. The social services authority must give such assistance as the authority may reasonably require in relation both to the carrying out of the reviews and the formulating and publishing of the strategy. Housing and social services authorities must take into account their homelessness strategies in carrying out their functions.
68. Clause 17 defines "homelessness review" as a review by the authority of:
69. It also sets out the places where the results of the review are to be made available to public inspection and provides for members of the public to be able to buy a copy of those results.
70. Clause 18 sets out the meaning of "homelessness strategy" by setting out the matters it must cover, namely:
71. A strategy may include specific objectives and activities to be carried out by:
72. In formulating its strategy, an authority must consider the ways in which the objectives of the strategy can be achieved by the various authorities and other bodies and organisations working together. They must also keep their strategy under review and may modify it. However before publishing a strategy or any modification to it, an authority must consult as they consider appropriate those such as the social services authority, other public authorities, voluntary organisations and others. Again an authority is to make available for inspection, and provide - on request and on payment of a reasonable fee - copies of documents published under this clause.
73. Clause 20 provides authorities with a power to secure accommodation for applicants who are not in priority need and are not homeless intentionally, where previously they had no power to do so.
74. Equally where an applicant is in similar circumstances, but only threatened with homelessness, an authority may take reasonable steps to secure that he continues to be housed in his current accommodation.
75. Clause 21 amends the provisions of Part VII of the 1996 Act which govern the period for which local housing authorities are under a duty to secure accommodation for applicants who are unintentionally homeless and in priority need.
76. At present, section 193(3) of the 1996 Act provides that the duty is owed for a two year period and section 194 of that Act enables (but does not oblige) authorities to continue to secure accommodation after the end of that period.
77. Clause 21(1) removes the two year time limit by substituting for that existing duty a new duty to secure accommodation until any of the circumstances specified in the section cause the duty to cease. In consequence of the abolition of the two year period, the power in section 194 of the 1996 Act is repealed at subsection (3). Transitional provisions provide that people accommodated under either section 193 or 194 immediately prior to commencement of this clause are owed the new duty.
78. Clause 22(1) amends section 193(6) of the 1996 Act which sets out circumstances under which the main duty to secure accommodation ceases. It provides additional circumstances at subsection 22(2), namely where an applicant accepts an offer of an assured tenancy, which is not an assured shorthold tenancy, from a private landlord.
79. Clause 22(3) replaces section 193(7) and sets out the circumstances under which the main duty to secure accommodation ceases. By making these amendments the ending of the main homelessness duty where the applicant refuses an offer of suitable accommodation allocated under Part VI is clarified. The authority has to notify the applicant in writing that the offer is a final offer and that the duty will end if it is refused.
80. Clause 22(4) also inserts new subsections before section 193(8) of the 1996 Act. The new subsections provide that where accommodation is made available to an applicant by a private landlord as a result of an arrangement between the authority and the landlord, the authority's homelessness duty under section 193 can be brought to an end if the applicant accepts an offer of an assured shorthold tenancy. The provisions make clear that an applicant is free to reject such an offer without this affecting the duty owed to him by the authority under section 193. They also provide that the acceptance of such a shorthold tenancy is not effective unless the tenancy is for a fixed term and the applicant confirms in writing that he understand the effect of accepting the offer (ie that it will bring to an end the section 193 homelessness duty owed them by the authority).
81. In both the case of a final offer of accommodation under Part VI and the offer of an assured shorthold tenancy secured by the authority, the offer is not effective unless the authority can be satisfied that the accommodation is suitable for the applicant and it would be reasonable for him to accept it.
82. Clause 23 repeals section 197 of the 1996 Act (duty where other suitable accommodation is available) resulting in applicants being owed the main homelessness duty under section 193 or the duty in the case of those threatened with homeless under section 195. Previously they would have only received advice and assistance in procuring accommodation. It also provides that a person owed the section 197 duty immediately prior to commencement is owed the section 193 duty or the section 195 duty as the case may be on commencement.
Allocations under Part VI of the Housing Act 1996
83. Clause 24 amends section 159 of the 1996 Act (allocation of housing accommodation) so that an allocation of accommodation to an existing tenant falls within Part VI of the 1996 Act where the allocation involves a transfer of accommodation made in response to an application by the transferee.
84. This applies also in the case of joint tenancies allocated to existing tenants in response to a transfer request. All other allocations made to existing tenants (ie. those made at the instigation of the local authority eg. to facilitate the refurbishment of a building by re-housing the tenants) remain outside Part VI.
85. Clause 25 provides that local housing authorities are no longer required to maintain a housing register (and, in consequence, sections 161 to 165 of the 1996 Act are repealed).
86. Clause 25 also inserts a new section 160A after section 160 of the 1996 Act. Section 160A concerns eligibility for an allocation of accommodation (and replaces section 161). Any person is eligible unless they are subject to immigration control or they are prescribed by the Secretary of State as ineligible. If they are subject to immigration control they are eligible if they are prescribed by the Secretary of State as eligible. Authorities must notify the applicant in writing where they decide that he is ineligible.
87. Clause 25 also provides that those who, immediately prior to commencement, were either on the housing register, or had made an application to be put on the housing register which had not been determined, must be treated on commencement as having applied to the authority for housing accommodation.
88. Clause 26 substitutes a new section 166 (applications for housing accommodation) for that relating to information about the housing register in consequence of the abolition of the requirement to maintain a register.
89. New section 166(1) concerns the provision of advisory services. Authorities must ensure that advice and information is available free to everyone in their district about the right to make applications for housing accommodation. Authorities must also ensure that any necessary assistance is available free of charge to those within their district who fall within the reasonable preference categories (introduced by clause 27 below) and who are likely to have difficulty in making an application.
90. In addition under new section 166(2) applicants are entitled to be given general information to enable them to assess when they might be allocated accommodation, but, under subsection (4) authorities are prohibited from divulging to the public that a person has applied for housing.
91. Clause 27 amends section 167 (allocation in accordance with allocations scheme). Section 167(2) is substituted by new provisions that set out revised categories of applicants who must be given reasonable preference in allocations. These are:
92. The new section 167(2) also provides that allocations may be framed so as to give additional preference to particular descriptions of people who fall within the reasonable preference categories.
93. Clause 27(3) also inserts a new section 167(2A) which provides that allocation schemes may include provision for determining priorities as between applicants who fall within the reasonable preference categories, and that the factors which can be taken into account in determining priorities may include:
94. New subsection 167(2B) provides that, subject to the new section 167(2), allocation schemes may contain provision about allocating particular accommodation:
95. Clause 27(4) imposes an additional requirement where an authority inform an applicant that they are eligible for assistance. They must also give them a copy of their statement contained in their allocation on their policy of offering choice of housing accommodation or the applicant's opportunity to express preferences as to accommodation.
96. Clause 29(1) gives effect to Schedule 2 which contains minor and consequential amendments. In particular there is an amendment of section 209 of the 1996 Act (which limits the type of tenancies that can be offered to homeless households by a private landlord). It removes the restrictions in that section in relation to the granting of assured tenancies where a registered social landlord assists a local housing authority discharge its homelessness functions.
97. Clause 29(2) gives effect to the repeals relating to Part II contained in Schedule 3.
98. Clause 29(3) also provides that the provisions of Part II do not affect section 216(2) of the 1996 Act (transitional provisions which apply in relation to applications for accommodation or assistance made before commencement of Part VII of the 1996 Act).
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