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CHAPTER 12 - PROTECTION OF PROPERTY AND ACTION
ON UNOCCUPIED HOUSES
12.1
Summary - this chapter sets out the local
authority's duties relating to protection of an applicant's
property and action regarding property which is unoccupied.
If homeless people are to set themselves up successfully in
a new home, they are likely to need all or most of their
existing possessions. Therefore, the preservation of their
possessions benefits not only the applicant themselves, but
can produce savings to the public purse in terms of
homelessness recurring, or the need for such support as
provision of furniture.
12.2 If the local authority has reason to believe that
an applicant is homeless or threatened with homelessness,
and they also have a duty to find accommodation for him or
her, then if:
- there is a danger of loss of, or damage to, the
applicant's moveable property because of his or her
inability to protect and deal with it; and
- no other suitable arrangements have been or are
being made to protect it;
the local authority has a duty to take reasonable steps
to prevent the loss of the property, or to prevent or
mitigate damage to it (sections 36(1) and (2) of the 1987
Act). 'Moveable property' includes, for instance,
furniture, pots and pans, and clothing, though not
fixtures. The duty also extends to the property of anyone
who might reasonably be expected to reside with the
applicant (section 36(8)).
12.3 Even if the local authority is not subject to a
duty to accommodate an applicant, it has power to take any
reasonable steps to protect the applicant's property.
12.4 Homelessness officers should always check whether
there is a need to protect the property of applicants. If
there is, and this need is not being met, they should
advise the applicant of the service for protection of
property including any charges. Local authorities should
also consider arranging for such property to be insured
against loss or damage while it is in their care. For the
service itself the local authority can use a private
provider.
12.5 Reasons for an applicant being unable to protect
his or her property, apart from lack of funds and storage
space, could include being placed in temporary
accommodation with little or no storage space, or
incapacity due to such causes as mental illness or learning
disability. Many applicants will of course prefer to make
their own arrangements with friends or relatives or private
providers.
12.6 As a matter of good practice the local authority
should also consider providing assistance with the
kennelling of any pets that an applicant may have if they
are not able to keep them in their temporary
accommodation.
Cessation of duty
12.7 The duty or power to protect an applicant's
property ceases when the local authority has reason to
believe there is no longer any risk of loss or damage to it
(section 36(5) of the 1987 Act). This will normally be the
case where the applicant finds permanent accommodation
where he or she can put their possessions.
12.8 Local authorities must notify the applicant of the
fact they no longer have a duty or power to protect his or
her property, and the reason for believing the risk of loss
or damage has disappeared (sections 36(6) and (7) of the
1987 Act). However, any property already placed in storage
by the local authority can continue to be kept in store,
subject to the original conditions including charges (with
any necessary modification).
12.9 Applicants should be warned in good time that the
local authority's duty to protect their property is coming
to an end, so they can make alternative arrangements.
However, applicants may need a reasonable period to, for
example, arrange for furniture to be moved to their new
home, and local authorities should therefore consider
storing property for a transitional period if necessary,
subject to appropriate charges.
12.10 Where an applicant has had belongings placed in
storage by the local authority and is moving into permanent
accommodation, the authority should consider assisting with
the delivery of their belongings. This can help facilitate
a quick move into the new tenancy thereby freeing up
temporary accommodation and reducing storage costs.
Powers of entry
12.11 Under section 36(3) of the 1987 Act local
authorities have powers of entry, at reasonable times, to
an applicant's present or last home, in order to protect
his or her property; and power to deal with the property in
any way which seems reasonably necessary. They may store
the property or arrange for it to be stored.
12.12 Use of this power may be appropriate where the
applicant has to be placed in furnished accommodation such
as bed and breakfast for a period. It may also be useful
where an applicant has difficulty in recovering his
property from a landlord, though it should be remembered
that a landlord may have a claim on it for debts owed by
the applicant.
Charges and disposal of property
12.13 Local authorities have power under section 36(4)
of the 1987 Act to impose, as a condition for agreeing to
protect property, a reasonable charge for storing protected
property, and can dispose of the property in circumstances
which the local authority specifies in advance. Provided it
so specifies in advance, the local authority can dispose of
property if it has lost all contact with the applicant, in
order to recover storage charges or other debts owed to
it.
12.14 Any charges levied on individual applicants should
take account of what (if anything) they can reasonably be
expected to pay, as well as storage costs; and applicants
should be advised of these charges in advance. Private
sector storage providers may be the most cost effective
option, if the number of cases is few. An appropriate
minimum period before disposal of stored property in cases
where the local authority has lost contact with the
applicant is 6 months. Local authorities should attempt to
contact the applicant or other agencies who might have
contact with the applicant (for example Social Work) before
disposing of their belongings. Before selling stored
property to recover storage charges or other debts owed by
the applicant, the local authority should consider the
likely proceeds and costs of disposal; together with any
danger that the applicant's loss of these possessions will
make a recurrence of homelessness more likely, leading to
further costs.
Action on unoccupied houses
Power to repossess social rented tenancy
12.15 Under sections 17 and 18 of the 2001 Act, local
authorities or registered social landlords can repossess a
house let under a Scottish secure tenancy, if they have
reasonable grounds to believe that it is unoccupied, and
that the tenant does not intend to occupy it as his or her
home. To do so they must give the tenant 4 weeks notice and
make the necessary inquiries to satisfy themselves of the
position. At the end of this 4 week period, if the landlord
is satisfied that the house is unoccupied and the tenant
does not intend to occupy it as his or her home, he can
bring the tenancy to an end immediately by serving a
further notice on the tenant. Further possession
proceedings are not required. The Scottish Secure Tenancies
(Abandoned Property) (Scotland) Order 2002 (
SSI 2002 No. 313) provides that the
serving of a notice in terms of that order shall be served
by posting it to the tenant in a recorded delivery letter,
addressed to the tenant at his or her last known address,
or by leaving the notice at that address.
12.16 A tenant aggrieved by a termination of his tenancy
under section 18 can appeal to the sheriff under section 19
within 6 months of the termination. If the appeal is
successful the court will order the tenancy should continue
or that the landlord should provide other suitable
accommodation if the house that has been repossessed is no
longer available. The court can make further orders, for
example to instruct a landlord to forego rent due for the
period of apparent abandonment. It should be noted that the
equivalent provisions for Scottish Homes secure tenants are
contained within sections 49 and 50 of the 1987 Act.
12.17 Paragraph 5 of Part I of Schedule 2 to the 2001
Act also allows a sheriff to grant to a landlord
repossession of a house let under a Scottish secure tenancy
where the tenant (and his spouse/partner) have been absent
without a reasonable cause for a continuous period
exceeding 6 months, or have ceased to occupy it as their
principal home. Temporary absence for a period in
institutional care would normally be considered to be a
reasonable cause.
12.18 Social landlords have duties to secure the
property of tenants of abandoned houses, and in the first
place to check that they really are abandoned. Premature
repossession could cause homelessness, and in some cases
there may also be fears for a tenant's safety.
12.19 For anyone who is, or may be, in hospital, or a
residential or other institution, the landlord should check
with the relevant health or social work agency whether the
person is expected to return. Inter-agency consultation is
particularly important where the person does not accept
that his or her move to institutional care is permanent, or
he or she may recover at some future date. A proper check
should also be made that the person is no longer in the
house, particularly when there is any reason to suspect
illness, (including mental illness) or other problems.
12.20 Where a relative or friend of the tenant says the
tenant is giving up a tenancy, the landlord should check if
that person has the necessary authority to do so,
preferably in writing. In this type of case a landlord
should not accept the keys of a house and termination of a
tenancy, without receipt of written or other acceptable
confirmation from the tenant or someone properly authorised
to act for the tenant. Again, where a person has been
received into institutional care, the landlord should check
the position if possible with the person him or herself,
and with the relevant health or social work agency, prison
or other agency.
Powers of entry to secure house
12.21 Section 17(2) of the 2001 Act gives the landlord
of a house let under a Scottish secure tenancy reasonably
believed to be both unoccupied and that the tenant does not
intend to occupy it as his or her home, the power to enter
the house to secure the house, and any fittings, fixtures
or furniture, against vandalism.
12.22 Clear procedures should be in place for deciding
when to use this power, and for checking first that the
house is unoccupied and the tenant does not intend to
return to it as his or her home. On the other hand,
landlords may wish to consider using this power when a
tenant's removal has attracted local publicity which would
alert burglars and others to the house being empty.
Sensible precautions should also be taken to avoid damage
such as turning off gas, electricity or water, removing
perishable foodstuffs, securing the property and informing
the police.
Safe custody of property
12.23 Section 18(4) of the 2001 Act gives Scottish
Ministers power to make an order making provision for the
landlord:
- to secure the safe custody and delivery to the
secure tenant of any property found in a house
repossessed under section 18;
- to levy charges for doing so; and
- if the tenant has not arranged for delivery within
the period specified in the order, to dispose of the
property and recover any rent or costs owing to the
landlord by the tenant.
12.24 This power has been exercised by the Scottish
Secure Tenancies (Abandoned Property)(Scotland) Order 2002
(
SSI 2002/313). This order provides that
the tenant must be advised by notice that if he does not
collect his property within a specified time (6 months,
unless the value of the property would not, in the opinion
of the landlord, exceed the amount which the landlord would
be able to deduct for any costs incurred and any arrears of
rent) it may be disposed of in accordance with the Order.
Property of a value insufficient to cover the cost of
storage may be disposed of in the most expedient manner
(but see paragraphs 12.13-12.14 above).
12.25 The landlord may deduct his expenses and the
amount of any arrears of rent from the proceeds of sale of
any property to which this order applies. Finally the Order
requires landlords to maintain a register containing
information about the houses in which property has been
found: the register must be open to public inspection and
the information on it held for 5 years.
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