Dear Sharon,

My advice is don't even think about storing such goods. Get rid of them. We are not here to pussy foot around empty home owners who are too wrapped up in their own sense of self importance to see the sense of what we are doing. Show him/her who's boss. You are calling the shots..not the owner.

Serve the owner a notice under Sec 41 of the Local Government (Miscellaneous Provisions) Act 1982 to remove his/her chattels...or else.

Give the owner 28 days and then, if the goods are not removed, send in your contractors with a skip and bin the lot!

I have successfully used this in the case of CPO'd houses where the owner refused to co operate. I recovered the costs from the sale of the house.

Good luck

Andrew Vickers ex Nottingham City 

I would agree with Andrew and we have also used the Local Government Miscellaneous Provisions Act for disposal of furniture for a Final Edmo. I did however also get a quote for storage of the furniture which for 5 pieces was £7000 over 7 years and would have made the whole Edmo  process financially borderline. We additionally asked a couple of local charities to take  the furniture away to save on disposal costs, this was useful as they both declined indicating it was worthless and that there was no market in old, dark oak furniture.

We felt this was a sensible approach that would help to mitigate any challenge on costs.

Sharon

Building on the comments so far.

I think there is the legal approach and then there is the practical approach.

The use of Section 41 of the Local Government (Miscellaneous Provisions) Act 1982 would be in conflict with the requirements of the Housing Act 2004. So there is a risk that an owner could try and take a claim against the LA under the Tort of Interference with Goods Act 1977 or some other route.

The problem is that the property is often full of items that have no intrinsic value, but one persons rubbish is another persons gold. So the LA is always at risk if they dispose of the owners goods.

I would agree with Jane that the Housing Act 2004, Schedule 7, S.20 (1) & (6) states that the rights of possession of the furniture against all persons vests in the LA, where there is an EDMO in place.

The Act allows the LA to renounce the rights of possession of the furniture by serving notice on the relevant proprietor not less than 2 weeks before.

Where the LA renounces the right to possession of the furniture they must make appropriate arrangements for the storage of the furniture at their own costs

Section 41  of the Local Government (Miscellaneous Provisions) Act 1982

As Andrew and Steve have said, a notice can be served under the above legislation giving the known owner 1 month’s notice. After which, the property will vest in the LA and they can do what they wish.

So in my view the LA could be open to challenge, if they disposed of the goods despite having served a Section 41 Notice.

Having said that, I would still serve a Section 41 notice.

If nothing else it muddies the water and may deter the owner taking a claim against the LA, for disposal of the goods.

So onto the practical approach.

1.  One way to deal with this issue is to get the management agent (RSL in most cases) to charge a higher management fee for dealing with the EDMO property, but they would then be responsible for storing the goods.

As the management fees are classed as relevant expenditure, they become recoverable. Obviously, the management fee should not be set at an unreasonable level, when compared to the market place. 

2. Accept that you could be challenged and mitigate possible damages.

Serve the Section 41 Notice which will allow you to raise this as a defence, but probably would not be successful.

I would strongly suggest that the LA, undertake an inventory and either film or take comprehensive photographs of the items in the property and the actual empty property (before any works are undertaken and on completion). Ensure you store the evidence in an appropriate manner (Continuity of Evidence) etc.

Your inventory should include extensive use of terms like heavily soiled, insanitary and beyond economical repair. After all, if the LA has extensive photographs, an inventory of the goods and the goods are no longer traceable (disposed of).

What evidence would the Owner be able to produce as part of his damages claim?

As Steve mentioned, get a house clearance company in to assess whether there are any goods of value (independent party). If there are, then these should be disposed of at auction and the value of these items used to offset the cost of the EDMO works (Does a Betamax video count as an antique yet?) If they have no intrinsic value, then just dispose of the goods.

Therefore, if the owner took a claim for damages you can show that you obtained market value for any goods of value and the owner has had the benefit of those funds. The other goods would be of no value and therefore the Court would be limited as to the amount of damages they would award (if any).

In addition, if the owner has not engaged with the LA through the EDMO process, then they probably are not interested in their goods and are unlikely to challenged the LA.

However, if there are items of specific sentimental value such as birth, death certificates, photo albums etc. Then I would store these items in the office for some time, in case the owner does come out of the woodwork and wants them.

Regards

Andrew Lavender

Not having direct experience of the different approaches I thought I would go back to the legislation to see if I could make sense of it.  This took me into such fascinating areas as the various meanings of "possession", though I won't pretend to have got to the bottom of it all.

It is, I have learned, important to recognise the difference between possession and right to possession.  They are quite separate.  If something steals something that belongs to you, you still have the right to possesion of it, but you don't have possession.  The thief has possession but not the right of possession.  Ownership is different again.  So you can lawfully possess a dwelling by being a tenant, but you are not the owner.  And the owner also has rights of possession.

Anyway, it certainly seems to be clear and unequivocal that if the local authority renounces the "right to possession" then they are responsible for storing the furniture at their own expense.  It's there in the Act in black and white.

If you don't renounce possession

But this obviously raises the question about what happens iif the LA doesn't renounce the right to possession and the EDMO is approved.  The situation is they now end up in control of the dwelling and they can be said both to possess the furniture and to have a right to possess the furniture (but they don't have ownership of it).  Apologies for the stating the obvious, but the corollary of what happens when an LA renounces possession is that in this case they  definitetly don't have to to store the furniture at their own expense.

Storage still an option?

But that doesn't prevent the LA storing the furniture.  Being in possession of it and having a clear right of possesion over it, there seems no reason at all why they can't store it.  If they do so, they can also charge the owner for the storage costs.   

To do this, you would need to identify the costs in the management scheme and persuade the RPT that this is a reasonable thing to do.  That might not be too hard. I am sure they would see the practical  difficulties associated with leaving the furniture in the property and the issues and disputes that could arise.   It would be interesting to hear if anyone had gone down that route. This may impact the finances of the scheme, of course,  making it harder to recover your total costs over the lifetime of the EDMO though any deficit can be recovered as a charge on the property.

Most local authorities have facilities for storing the possessions of homeless households - many use their own garages:  the cost might not always be as much £1000 per annum anway. If you use your own storage facilities that really emphasises the fact that you have not surrendered the right of possession; ditto if you leave some low-value items in the property.  There are quite a lot of reasons for following this approach, including the public perception of EDMOs.

Miscellaneous Provisions S.41

If you do want to get rid of the furniture, which I guess would normally be the preferred route, the EDMO leaves you in pretty much the situation that the LG Miscellaneous Provisions 1982 Act envisages, where "property comes into the possession of a local authority after being found on buildings or premises owned or managed by them".  The 1982 Act then allows the local authority to get the owner to take it away, and if the owner declines the property then "vests" in the LA - which means the LA now owns it absolutely. That would seem to extinguish the right to possession of the previous owner as their right to possession was based on ownership (I think!).  The LAs' right of possession terminates at the end of the EDMO order, but the legislation doesn't specify that the rights of possession of others are automatically amd magically restored.

So I think Andrew V and Steve are right about being able to use this, power provided you haven't renounced the right of possession.

The potential fly in the ointment is para 20(3) of Schedule 7 of the EDMO legislation which says that "The right of the local housing authority under sub-paragraph (2) to possession of the furniture is subject to the rights of any person who, on the date on which the interim EDMO or final EDMO comes into force, has the right to possession of the dwelling."  I don't know what this really means in practice.  Who exactly does have "right to possession of the dwelling" on the date the EDMO comes into force? The owner? The mortgage company? A lessee? Certainly the LA itself has the right of possession as that is granted by paragraph 2(3)(a) of Schedule 7.  Are they simply talking about the situtaion that is clearly envisaged in the act whereby between the Interim and Final EDMOs the property becomes occupied? Above all, what does "subject to" mean in practice?  Perhaps someone can clarify....

However, you have not relied on your Housing Act rights, you have relied on your LGMP powers - and these are not "subject to" anyone's rights under para 20(3).

The other objection would be that the actions you took under the LGMP Act were de facto renouncing rights of possession even if you haven't formally renounced them.  Though I supposed when the furniture has all gone, it won't be very expensive for you to bear the costs of storing it!.

The difficulty is partly  that the Miscellaneus Provisions approach is effectively running entirely independently of the Housing Act EDMO provisions.  You are just doing what the LGMP Act says you can do.   But the Housing Act doesn't prevent you from using the LGMP Act so why not? If they had wanted it to limit your powers under the LGMP Act then you would expect them to have said so.

Taking precautions and being sensible

I think the precautions mentioned by Andrew L must be essential regardless of which route you go down. 

Also if it seems that the owner has not, for whatever reason, really been in a position to organise removal of the furniture then I guess it must make sense to store the furniture and recharge them as suggested above.

Corrections to the above are welcome.