HCA Disposal Consents

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29th March 2017 saw the UK formally trigger Brexit, but for those in the affordable housing sector another important ‘independence’ event will occur on 6th April 2017.  This is the date when a new notifications procedure will come into force, replacing the existing requirement for disposal consents from the social housing regulator (the HCA). 

This news is admittedly unlikely to divert readers’ attention away from more important matters for too long – you could instead be choosing what size and shape of confectionery to indulge in later in the month.  This is also partly because the changes form part of a package of housing de-regulation measures which are well known.  

However, with the big day just around the corner, significant information has recently been made available, and which provides the detail of how this aspect of the deregulation measures will be implemented.  So please ‘bear with’ for just a few moments for an edited highlights of the key points going forward.

Section 9 consent, Section 172 consent, consent for disposing of land……whatever, it’s gone (*for most of us)

For development and disposals (including shared ownership) teams, the big news is that from 6th April (Independence Day?!), registered providers of social housing will not need HCA consent for disposals of land.  In certain situations, a new requirement to notify the HCA will arise. 

The new rules also removethe need for s133 consent, which stock transfer RPs will be familiar with.  Note however that whilst the statutory consent requirement has been removed, restrictive covenants on disposal, use and other matters contained in the original stock transfer agreement and/or land transfer will continue to apply.

The Land Registry has confirmed that, following 6th April 2017, the restrictions which are entered on the title registers of all land owned by RPs (and which prevent an RP from dealing with the property without satisfying the restriction) will no longer need to be complied with.  This applies to restrictions that refer to either section 172 consent or its statutory predecessor, section 9 consent.  The Land Registry has been given powers to remove the existing restrictions from RPs’ registers of title, and it will be doing this following 6th April this year.

Can you just notify me of that when it’s actually happened……

The new notification circumstances and procedures are specified in a formal Direction which the HCA has issued and which can be found at:

Notification just applies to disposals of social housing dwellings, and even then only in certain prescribed circumstances, which differ depending on whether or not you are deemed to be a large or small RP for the purpose of the HCA Direction. 

The prescribed circumstances include certain disposals made:

• within and outside of the social housing sector
• between a non-profit and a for-profit RP
• in respect of more than 5% of an RP’s overall housing stock
• in connection with finance transactions (split into ‘standard’ finance, usually bank or bond finance secured by a charge, and ‘non-standard’ finance) and certain guarantees. 

Generally, notification will be on a quarterly basis unless the disposal requires a ‘priority notification’ within 3 weeks of the disposal. 

So this is actually quite big news then?

Yes and no.  Thought leaders within the sector have highlighted the potential impacts of deregulation, including within the realm of lending and valuation and also in the context of stock rationalisation work.  Don’t necessarily expect fireworks however – the remaining structure of the regulatory framework, grant funding and private finance requirements, and the need to take business decisions in line with (where relevant) charitable objects, and in a generally robust manner, will all remain relevant in a newly de-regulated sector.    

Thirsty?

As an expert provider of advice to the affordable and wider housing sectors, Sharratts’ lawyers can discuss with you the more detailed nuances of the new rules and their effect on your day to day activity.  For further advice, please contact:

Ben Halsey, telephone 01959 568014 or email: benh@sharratts-london.co.uk

or your usual Sharratts contact.

The small print

This article does not constitute formal legal advice.  The relevant legal frameworks referred to in this note are to be found in the Housing and Regeneration Act 2008 – for a few more days only, sections 172 – 175, and the new section 176, along with the Housing and Planning Act 2016.  The changes apply in England, but not Wales.

* Most RPs are exempt charities and the new rules apply to those entities.  However, if you are a non-exempt charity then your ability to dispose of land will (continue to) be restricted under the Charities Act 2011 (albeit that day-to day disposals to tenants, for example will hopefully not trigger these restrictions).  You will also have to notify the HCA, where relevant, under the new rules.  The Peabody Trust is a non-exempt RP.  Other examples tend to be RPs who are incorporated as companies rather than registered societies (formerly known as Industrial and Provident Societies).  We can walk you through these requirements if your status is non-exempt, and/or if you are exempt RP transacting with a non-exempt RP.