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Student accommodation e-briefing - Temporary possession/relocation - removing students from accommodation without a Court Order

  • United Kingdom
  • Education - Briefings

18-10-2018

Welcome to the eighth in our series of student accommodation e-briefs for universities, colleges and private providers. These e-briefs highlight aspects of the student accommodation agreement which pose challenges for the education sector.

This time, we are looking at some contractual and consumer law issues which an institution will need to consider if it wishes to achieve some flexibility within the accommodation contract, either to relocate a student or recover possession of accommodation from a student temporarily.

Contractual rights temporarily to remove a student from accommodation or relocate a student to alternative accommodation

The starting point for any consideration of the process of securing possession (including temporarily) will always be the accommodation contract itself. Before the institution takes any steps to remove or relocate a student from their accommodation – even temporarily - it is important to determine whether the institution has the contractual right to do so.

If an institution seeks to remove or relocate a student from their accommodation without having a contractual right to do so then (in addition to the risk of an internal complaint or complaint to the OIA) it could be on the receiving end of a claim for breach of contract, or even an injunction application which, if successful, could mean that the institution is ordered by the Court to allow the student back into the accommodation. It may also be liable to pay the student damages.

In addition, institutions must also be mindful of the consumer law framework which will apply to the accommodation contract (which we have discussed in earlier e-briefs in this series). In order to comply with consumer law, the relevant provisions within an accommodation agreement for suspending and relocating students must be fair and proportionate. A blanket arrangement whereby a student can be removed at any time on any grounds is very unlikely to be regarded as lawful for these purposes.

Use of temporary removal and relocation provisions

Institutions may find contractual provisions temporarily to remove or relocate students helpful in managing their student communities and discharging their legal obligations. For example, such a right might be considered helpful as a way of temporarily defusing a difficult breach situation or intra student disharmony. It can allow everyone to buy some breathing space and reflect on the way forward.

A right to remove or relocate a student may also be an important provision to look to rely upon in cases involving allegations by students against other students of sexual harassment or violence in order to seek to avoid or minimise contact between the parties and to manage risk, and to assist the institution to discharge its duty of care and other legal obligations to all parties concerned.

Institutions may also look to rely upon such provisions in supporting students with mental health problems and managing risks that their conduct is considered to pose to themselves or to others.

Relocation – some considerations

There are a number of considerations that an institution should take into account when considering the inclusion of relocation provisions in a contract in order to try and ensure that such provisions are lawful and enforceable as a matter of contract and consumer law, including:

• that such provisions have been brought to the attention of students before the contract is entered into (they may be regarded as surprising or onerous terms) and properly incorporated into the contract

• the requisite notice that will be provided to the student - there are no hard and fast rules but very short periods of notice (in days not weeks) are likely to be scrutinised very carefully, save in cases of emergency

• whether the alternative accommodation will be reasonably equivalent to the student’s existing accommodation (subject to availability)

• the grounds upon which the right to relocate may be exercised - for instance, specific circumstances relating to the student’s conduct or considerations affecting fellow residents as opposed to wide-ranging grounds which benefit only the institution’s management of the estate

Temporary Removal – some considerations

Considerations that an institution should take into account when considering the inclusion of temporary removal provisions in an accommodation contract in order to try and ensure that such provisions are lawful and enforceable as a matter of contract and consumer law will include the rights of return for the student to the accommodation.

Alignment of the accommodation contract with the student contract

Temporarily suspending a student from their accommodation under the accommodation contract is distinct from any temporary suspension of a student from their course of study under the student contract. Action taken under the student contract temporarily to suspend a student (for example under a disciplinary or fitness to study policy) does not automatically give an institution the right to suspend (or, indeed, terminate) the accommodation contract. Institutions should consider the alignment of the two contracts and look to ensure that their provisions and implementation do not contradict one another. Institutions should also take care to ensure that taking action under one contract does not contravene or pre-judge actions or decisions that might be taken under the other (for example in respect of a disciplinary investigation or outcome).

Conclusion

Relocation and temporary removal provisions, whilst useful in assisting an institution to manage its student community and discharge its legal obligations, do need to be drafted and exercised with caution and warrant careful consideration and periodic review, including testing against actual situations with which institutions have had to deal as well as hypothetical cases.

Next time we will examine some issues which the institution ought to consider if all else fails and it wants to seek permanent possession.

How we can help

Eversheds Sutherland has a wealth of experience advising on student accommodation issues in the higher and further education sectors. If you would like to discuss how Eversheds Sutherland may assist you in managing any of the issues addressed above (or any other student contract/consumer related issues) please contact us.

For more information contact

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