Think Tank

Surely under the Human Rights Act, living in such conditions cannot be right?

Your case demonstrates why the statutory definition of overcrowding has been the subject of so much recent criticism . You are not legally overcrowded because it would theoretically be possible for your two boys to share a room (although the government last week agreed to amend the Housing Bill to make it possible to change this standard, HT 7 May, page 9). However, many landlords have adopted a more generous interpretation of overcrowding, so make sure yours is aware of your circumstances, including the medical problems.

But you must deal with the notice of possession, as landlords will not normally transfer a tenant under notice unless the reasons are compelling. If it has been served because of financial problems, you should be able to meet your rent through housing benefit and your landlord will be able to advise you about this.

John Bryant, Policy officer, National Housing Federation

You could be statutorily overcrowded. If so, your council could act against the landlord. You should seek advice from a solicitor, housing adviser, law centre, Citizens Advice bureau or Shelterline on 0808 800 4444. Solutions include making a homelessness application, joining an exchange scheme or looking to the private sector.

What would disturb any adviser in this case, though, is that you are sleeping with an 11-year-old in a single bed. A bunk bed would avoid this situation.

Nick Murphy, Executive director, of housing, communities and regeneration at Southampton council

A tenant has died in arrears
As a local authority, we are redrafting our succession policy and have hit a stumbling block with successors who take over tenancies where the deceased had rent arrears. Looking at neighbouring local authorities, the general consensus is to grant the succession and leave the arrears on the account, getting the successor to sign an arrangement to repay them. If payment is defaulted, the legal case would start from when the tenancy transferred. Our local law centre disagrees; it does not feel the arrears should be attributed to the new tenant. But a succession is not a new tenancy, so is this correct?

A leading housing QC considers that a successor to a Rent Act tenancy takes the benefit (the tenancy) and the burden (any arrears). However, the opposing view is that the arrears form part of the deceased tenant's estate and must be claimed from the estate rather than the successor.

What does seem clear is that for RSL non-statutory (policy) successions, the RSL can make it a condition of permitting the handover that the successor agrees to pay off any arears. The agreement should be by deed though.

This may not work with statutory successions because the landlord is asking for something that, arguably, would not otherwise have to be given by the successor – in the absence of a possession order, a statutory successor is entitled to the tenancy as of right.

A number of councils will consent to write off arrears in these circumstances but most appear to reach agreements with the successor to pay the arrears, or are able to rely on the arrears to obtain a possession order. Judges will usually adopt the "benefit and burden" pass.

There is no clear case law but, if the successor reaches an agreement to pay the arrears, the general view is that will suffice. However, you may find you are challenged in court if enforcement action is taken.

Rosemary Hart Partner and housing specialist, Trowers & Hamlins