Renting Homes: The Final Report - Law Commission

Persons with “home rights”
5.29 A person with home rights under the Family Law Act 1996 (as amended) 49 is
entitled, so long as they remain in occupation, to be a party to proceedings for
possession, or to proceedings connected with an order for possession. 50 This
could apply, in theory, to any possession proceedings.
5.30 In addition, such a person may, in their own right, seek an adjournment,
postponement, stay or suspension. 51 This provision can only apply where the
grounds on which the court would make an order for possession were
discretionary.
STRUCTURED DISCRETION
5.31 We received a large number of comments, both in written evidence, and at public
meetings, on judicial inconsistency, particularly in the context of possession
proceedings. The extent of this was hard to quantify – not least because a degree
of inconsistency must be expected where judges are required to exercise
discretion. Nevertheless, it was an issue we concluded needed to be addressed.
5.32 In the specific context of orders for possession on the ground of nuisance the
Court of Appeal had already undertaken this task. 52 We concluded that this
process should be taken further, and that there was a case for structuring judicial
discretion more broadly.
5.33 Although the Law Commission is now engaged on a wider review of disputeresolution
in the context of housing problems, our recommendations relating to
the structuring of discretion are an important reform, the introduction of which
should not be delayed.
5.34 The Bill sets out provisions to structure the courts’ discretion to make an order for
possession, when their decisions are based on the test of reasonableness. 53 The
principles apply not only when an order is being contemplated, but also where the
judge is deciding whether to adjourn proceedings, or postpone the giving up of
possession. 54
49 Cl 193(2). Such a person is defined in the Family Law Act 1996, s 30(2) as a spouse or
civil partner who (a) if in occupation, has a right not to be evicted or excluded from the
dwelling-house or any part of it by the other spouse or civil partner except with the leave of
the court given by an order under s 33; or who (b) if not in occupation, has a right with the
leave of the court so given to enter into and occupy the dwelling-house.
50 Cl 193(1)(a).
51 Cl 193(1)(b).
52
See Gil v Baygreen Properties [2002] EWCA Civ 1340, [2003] HLR 119. See too the Anti-
Social Behaviour Act 2003, s 16.
53 Sch 7.
54 Sch 7 para 1(b).
94