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Registered Providers (formerly Registered Social Landlords (RSLs)) will be well aware of the need for obtaining consent when disposing of property. This consent was previously obtained from the Housing Corporation and is currently within the jurisdiction of the Tenant Services Authority (TSA).

Since the inception of the TSA the regulatory framework previously utilised by the Housing Corporation has simply continued. This has been set out in previous articles on our website and will not be repeated in detail here, however, suffice it to say that certain transactions require a formal request for section 9 consent from the TSA and others, whilst they do require consent, are covered by the General Consent issued by the Housing Corporation in Spring 2008. Finally there are certain transactions which do not require any form of consent since they are classified as “exempt disposals”

There are new provisions for disposal contained in the Housing and Regeneration Act 2008 (“the Act”) which have yet to be brought into force, however, the provisions do present a change from previous requirements for consent.

Disposals generally

The starting point is section 171 of the Act provides registered providers with a general power to dispose of land (with an exception for non-profit registered providers who are the landlord of properties subject to secure tenancies which may only be disposed of to another non-profit registered provider). This is an interesting change to the legislative framework in that, previously, RSLs had a right to dispose of land subject to the provisions of section 9 of the Housing Act 1996. The new provision is more freeing in that it gives a general right to dispose of land with no regulatory framework attached.

Dwellings which are used for Social Housing

However, section 172 regulates the disposal of dwellings which are used for social housing which will, one would expect, apply to a large proportion of most registered provider’s assets. However it appears to allow for dispositions of bare land, the grant of commercial leases, and dispositions of any other land which does not comprise a dwelling or dwellings for social housing use without any formal consent being required.

Exceptions where dwellings are used for Social Housing

Section 173 provides a list of specified exceptions to the requirement to obtain consent in section 172. These are, effectively, the types of disposals currently known as “exempt” or “non-disposals”.

These are:

1. Assured tenancies, assured agricultural occupancies, secure tenancies (and disposals which would be either an assured or assured agricultural tenancy but for certain provisions of the Housing Act 1988 or which would be secure tenancies but for certain provisions of the Housing Act 1985)

2. Disposals which need consent under section 81 or section 133 of the Housing Act 1988 or section 173 of the Local Government Housing Act 1989. (These were previously the remit of the Secretary of State but will be transferred to the regulator (TSA) when section 190 of the Act comes into force)

3. Disposals to a tenant who has a right to buy under Part V of the Housing Act 1985

4. Disposals to a tenant who has the right to acquire under section 180 of the Act or section 16 of the Housing Act 1996.

General Consent

Whilst the TSA has not issued its own general consent as yet but is, rather, continuing to rely on the Housing Corporation General Consent referred to above, there is provision in section 174 of the Act for the TSA to issue a general consent having consulted with the Homes and Communities Agency, one or more bodies who represent the interests of registered providers and one or more bodies who represent the interests of tenants.

One would hope and expect that when the new provisions do come into force, the TSA will issue a general consent of its own which will cover the main type of transactions which registered providers deal with on a day to day basis to alleviate the administrative burden on registered providers.

They are, after all, subject to monitoring by the TSA through the quarterly reporting process and that ought to pick up any potential problems.

Such a framework ought to leave the TSA free to concentrate on dealing with specific consents for unusual transactions with the net effect, one would hope, of further improving the TSAs efficiency.

Richard Stirk