Homelessness: code of guidance

Chapter 11: Protection of Property and Action on Unoccupied Houses

11.1 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.

11.2 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 them, then if:

• there is a danger of loss of, or damage to, the applicant's moveable property because of their 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)).

11.3 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.

11.4 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.

11.5 Reasons for an applicant being unable to protect their 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 health problems or learning disability. Many applicants will of course prefer to make their own arrangements with friends or relatives or private providers.

11.6 As a matter of good practice the local authority should also consider providing assistance with the kenneling of any pets that an applicant may have if they are not able to keep them in their temporary accommodation.

Cessation of duty

11.7 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 they can put their possessions.

11.8 Local authorities must notify the applicant of the fact they no longer have a duty or power to protect their 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).

11.9 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.

11.10 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

11.11 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 their 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.

11.12 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 their 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

11.13 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.

11.14 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.

Power to repossess social rented tenancy

11.15 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 their 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 their home, they 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 their last known address, or by leaving the notice at that address.

11.16 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.

11.17 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 their 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.

11.18 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.

11.19 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 their move to institutional care is permanent, or they 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 health) or other problems.

11.20 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 themself, and with the relevant health or social work agency, prison or other agency.

Powers of entry to secure house

11.21 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 their home, the power to enter the house to secure the house, and any fittings, fixtures or furniture, against vandalism.

11.22 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 their 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

11.23 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.

11.24 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 they do not collect their 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 11.13 -11.14 above).

11.25 The landlord may deduct their 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.